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Prenderville v. Sinclair

Appellate Court of Connecticut

April 12, 2016

CHARLES PRENDERVILLE, ADMINISTRATOR (ESTATE OF COREY PRENDERVILLE), ET AL.
v.
CHRISTOPHER SINCLAIR, ET AL

         Argued December 7, 2015

          Action to recover damages for, inter alia, the defendants' alleged medical malpractice, brought to the Superior Court in the judicial district of Middlesex where the court, Marcus, J., denied the plaintiffs' motion to amend, granted the defendants' motion to dismiss and rendered judgment thereon, from which the plaintiffs appealed to this court.

          SYLLABUS

         The plaintiffs sought to recover damages from the defendant neurologist, S, and his limited liability company, R Co., for medical malpractice. The plaintiffs commenced the action by service of process on August 29, 2013, with a summons and complaint dated April 1, 2013, having a return date of May 7, 2013. The plaintiffs returned process to the court on September 9, 2013. The defendants subsequently filed a motion to dismiss for lack of personal jurisdiction, claiming that the plaintiffs had failed to comply with the statute (§ 52-46) requiring that process be served at least twelve days before the return date, and with the statute (§ 52-46a) requiring that process be returned to court at least six days before the return date. The defendants also claimed that they would be prejudiced if the court allowed the plaintiffs to amend the return date because the expiration of the statute of limitations would prevent them from impleading a third party defendant, and that the deadline had passed to file an apportionment complaint. The plaintiffs objected to the motion to dismiss, and they filed a motion to amend the return date and a proposed amended summons and complaint that contained an October 29, 2013 return date. The trial court denied the motion to amend and granted the motion to dismiss on the ground that the return date could not be amended to comply with § § 52-46 and 52-46a without running afoul of the statute (§ 52-48 [b]) requiring that all process shall be made returnable no later than two months after the date of process. On appeal, the plaintiffs claimed that the trial court incorrectly concluded that the statute (§ 52-72) allowing for the proper amendment of civil process which is for any reason defective did not permit amendment of the return date to a date more than two months after the date of process, and improperly granted the motion to dismiss for lack of personal jurisdiction.

         Held :

         1. The trial court properly concluded that the return date could not be amended pursuant to § 52-72 because the amendment of the return date to a date that was well beyond two months from the date of process would violate § 52-48 (b), and, therefore, such an amendment was not proper: the trial court correctly interpreted the date of process requirement in § 52-48 (b) as referring to the date of the writ of summons, consequently, process had to be returnable to court no later than June 1, 2013, and the only amended return date proposed by the plaintiffs was October 29, 2013, which did not comply with the requisite two month time restriction in § 52-48 (b); furthermore, the plaintiffs' claim that the trial court improperly failed to consider that any prejudice the defendants would have suffered due to the amendment of the return date was a result of their own fraudulent or otherwise wrongful conduct was moot, as no practical relief would follow from a determination that the defendants suffered no prejudice, this court having previously concluded that the requested amendment was not proper pursuant to § 52-72.

         2. The trial court properly granted the defendants' motion to dismiss on the ground that it lacked personal jurisdiction, that court having properly determined that it could not permit amendment of the plaintiffs' return date and, as a result, process did not comply with the mandatory requirements of § § 52-46 and 52-46a, which rendered the plaintiffs' action vulnerable to a motion to dismiss for lack of personal jurisdiction.

         3. The plaintiffs' could not prevail on their claim that the trial court improperly failed to conclude that it had personal jurisdiction because the defendants should not have been permitted to benefit from evading service by improperly dissolving R Co. and failing to notify the Secretary of the State of a change in address: the record belied the plaintiffs' claim that the defendants were evading service and demonstrated that the plaintiffs' own delay in utilizing available alternative methods of service caused noncompliance with the applicable service statutes, which deprived the trial court of personal jurisdiction; moreover, S's failure to notify the Secretary of the State of a change in address was irrelevant and did not prevent abode service because, when the plaintiffs failed to serve S at R Co.'s address, they had documents from the Secretary of the State that indicated S was R Co.'s principal and listed his home address where he was eventually served, and, therefore, they had the necessary information and statutory (§ 34-105 [d]) authorization to effectuate timely abode service on S.

         4. The trial court properly declined to consider, as part of its ruling on the defendants' motion to dismiss, the plaintiffs' arguments that the statute of limitations was tolled by the defendants' fraudulent concealment or that the defendants should be equitably estopped from asserting the statute of limitations; the defendants' motion to dismiss did not claim that the plaintiffs' case should be dismissed for having been filed outside of the statute of limitations, but rather that the defendants would suffer prejudice due to the running of the statute of limitations, which foreclosed them from impleading a third party defendant, and the trial court's memorandum of decision made clear that it did not consider the viability of a statute of limitations defense.

         Tracey E. Hardman, for the appellants (plaintiffs).

         Diana M. Carlino, with whom, on the brief, was James F. Biondo, for the appellees (defendants).

         DiPentima, C. J., and Mullins and Norcott, Js. MULLINS, J. In this opinion the other judges concurred.

          OPINION

          MULLINS, J.

          [164 Conn.App. 441] The plaintiffs, Charles Prenderville, individually and as administrator of the estate of Corey [164 Conn.App. 442] Prenderville, and Alice Prenderville, appeal from the judgment of the trial court dismissing their action against the defendants, Christopher Sinclair, a neurologist, and River Valley Neurology, LLC. On appeal, the plaintiffs claim that the court improperly (1) denied their motion to amend the return date, and (2) granted the defendants' motion to dismiss for lack of personal jurisdiction. We disagree, and, accordingly, affirm the judgment of the trial court.

         The record reveals the following relevant undisputed facts and procedural history. After the death of their son, Corey Prenderville, the plaintiffs commenced a medical malpractice action against the defendants by service of process on August 29, 2013. The summons and complaint were dated April 1, 2013, and bore a return date of May 7, 2013. The plaintiffs returned process to court on September 9, 2013.

         On November 1, 2013, the defendants moved to dismiss the plaintiffs' action on the following grounds: (1) the court lacked personal jurisdiction because the plaintiffs failed to comply with the time limits for service and return of process established by General Statutes § § 52-46[1] and 52-46a[2] when they served process 114 days after the return date and returned process to court 125 days after the return date; and (2) if the return date was amended, they would be prejudiced by the expiration of the statute of limitations,[3] which would [164 Conn.App. 443] prevent them from impleading a third party defendant, and by the passage of the deadline to file an apportionment complaint.[4]

         On January 17, 2014, the plaintiffs objected to the motion to dismiss, moved to amend the return date, and filed a proposed amended summons and complaint bearing a return date of October 29, 2013. In their motion to amend, the plaintiffs argued that amendment of the return date was proper because (1) Connecticut has a strong preference for curing circumstantial defects to allow a case to be heard on its merits, which is embodied in General Statutes § 52-123,[5] (2) it was in accordance with " the precedent of Coppola v. Coppola [243 Conn. 657, 666, 707 A.2d 281 (1998)]," (3) it would bring process into compliance with General Statutes § 52-48 (b)[6] as well as § § 52-46 and 52-46a, and (4) any noncompliance with § 52-48 (b) was the result of " intentional and misleading actions of the defendant Sinclair," from which the defendants should not be permitted to benefit.

          [164 Conn.App. 444] In their objection to the motion to dismiss, the plaintiffs conceded noncompliance with § § 52-46 and 52-46a but argued that the motion nevertheless should be denied because (1) the court should permit amendment of the return date to comply with the applicable statutes, (2) a motion to dismiss is not the proper vehicle for a statute of limitations defense, (3) even if a motion to dismiss is a proper vehicle for raising a statute of limitations defense, in this case, the statute of limitations should be tolled by the doctrines of fraudulent concealment and equitable estoppel, and (4) " any late filing was due to accident, mistake, or inadvertence based significantly on the defendant Sinclair's actions and fraudulent misrepresentations . . . ." [7]

         On May 16, 2014, the court issued a memorandum of decision, in which it denied the motion to amend, granted the motion to dismiss, and rendered a judgment of dismissal. In particular, the court determined that the return date could not be amended to comply with § § 52-46 and 52-46a without running afoul of § 52-48 (b). The court also determined that § 52-123 was not the proper vehicle for curing the plaintiffs' failure to serve process in accordance with § § 52-46 and 52-46a. The court then determined that permitting the amendment of the return date would cause the defendants to suffer prejudice because the untimeliness of the action would preclude them from impleading a third party defendant or serving an apportionment complaint. As a result, the court held that it lacked personal jurisdiction over the defendants. This appeal followed.[8] Additional facts will be set forth as necessary.

         [164 Conn.App. 445] I

         The plaintiffs claim that the court improperly denied their motion to amend the return date. Their claim is twofold. First, they argue that the court incorrectly concluded that amendment of the return date was not proper pursuant to Coppola and General Statutes § 52-72.[9] Second, they argue that the court improperly failed to consider that any prejudice the defendants would have suffered as a result of an amendment of the return date was a result of their own allegedly fraudulent or otherwise wrongful conduct. The plaintiffs also advance a general public policy argument that an amendment should have been permitted because § 52-123 embodies a preference for resolving a case on its merits. For the following reasons, we conclude that the court properly denied the motion to amend.

         We first set forth the standards governing our review of this claim. In general, " whether to allow an amendment to the pleadings rests within the discretion of the trial court." Miller v. Fishman, 102 Conn.App. 286, 291, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008). To the extent the plaintiffs challenge the court's statutory construction, they present an issue of law over which our review is plenary. Marchesi v. Board of Selectmen, 309 Conn. 608, 614, 72 A.3d 394 (2013).

         At the outset of our discussion, we note that we, like the trial court, agree with the plaintiffs that § 52-123 embodies a public policy favoring the resolution of a case on its merits and allowing the amendment of circumstantial errors. See, e.g., Boyles v. Preston, 68 Conn.App. 596, 603, [164 Conn.App. 446] 792 A.2d 878 (" It is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects. . . . Indeed, § 52-123 . . . protects against just such consequences, by providing that no proceeding shall be abated for circumstantial errors so long as there is sufficient notice to the parties." [Internal quotation marks omitted.]), cert. denied, 261 Conn. 901, 802 A.2d 853 (2002).

         Nevertheless, " [o]ur Supreme Court has repeatedly held that § 52-123 is used to provide relief from defects in the text of the writ itself but is not available to cure irregularities in the service or return of process. [It never has] held to the contrary. Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 434, 559 A.2d 1110 (1989); [10] see also Rocco v. Garrison, 268 Conn. 541, 557, 848 A.2d 352 (2004); Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991); Pack v. Burns, 212 Conn. 381, 386, 562 A.2d 24 (1989) . . . ." (Citation omitted; footnotes altered; internal quotation marks omitted.) Kobyluck v. Planning & Zoning Commission, 84 Conn.App. 160, 167, 852 A.2d 826, cert. denied, 271 Conn. 923, 859 A.2d 579 (2004).

         The plaintiffs' service of process 114 days after the return date and their return of process 125 days after the return date, in violation of § § 52-46 and 52-46a, are not defects in the text of the writ itself. Rather, these defects are irregularities in the service and return of process. As such, they are not defects from which § 52-123 can provide the plaintiffs relief. With the stated policy in mind, however, we ...


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