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Johnson v. Preleski

Court of Appeals of Connecticut

June 27, 2017


          Argued February 6, 2017

         Appeal from Superior Court, judicial district of New Britain, Young, J.

          Daniel M. Erwin, with whom, on the brief, was Norman A. Pattis, for the appellant (petitioner).

          Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Brian W. Preleski, state's attorney, and Christian M. Watson, assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Keller and Beach, Js.


          KELLER, J.

         The petitioner, Anthony Johnson, appeals from the judgment of the trial court dismissing his petition for a new trial brought against the respondent, Brian Preleski, the state's attorney for the judicial district of New Britain. The petitioner claims that, in concluding that the petitioner's action was time barred under General Statutes § 52-282, the court improperly rejected his argument that General Statutes § 52-593a saved his cause of action. We affirm the judgment of the trial court.

         The following facts and procedural history underlie this appeal. In 2011, following a jury trial, the petitioner was convicted of murder. On August 5, 2011, the defendant was sentenced to a term of incarceration of forty-five years. This court affirmed the judgment of conviction following the petitioner's direct appeal. State v. Johnson, 149 Conn.App. 816, 89 A.3d 983, cert. denied, 312 Conn. 915, 93 A.3d 597 (2014).

         On August 6, 2014, the petitioner commenced the underlying action, a petition for a new trial based on newly discovered evidence under General Statutes § 52-270, [1] against the respondent when a state marshal, Charles J. Lilley, served process on the respondent. On August 28, 2014, the respondent moved to dismiss the petition on the ground that it was time barred under § 52-582[2] because it was not commenced within the three year limitation period, which began to run when the petitioner was sentenced on August 5, 2011, and ended on August 5, 2014. The petitioner objected to the motion to dismiss. First, he argued that he delivered the writ, summons, and petition to the marshal on August 5, 2014, prior to the expiration of the three year limitation period codified in § 52-582. Second, he argued that § 52-593a[3] applied because it provided a thirty day remedial period in which service may be made after such time as process has been delivered, within the statutory time limit, to a marshal. Thus, the petitioner argued, his petition should not be dismissed. As a special defense to the petition, the respondent asserted that the petition was barred by § 52-582 and that § 52-593a did not save the action ‘‘because the process was not ‘personally delivered' to a state marshal pursuant to [§ 52-593a (a)] and the state marshal in this case failed to ‘endorse under oath on his return the date of delivery of the process' pursuant to § 52-593a (b).'' In his reply to the special defense, the petitioner alleged that the petition was ‘‘served in substantial conformity'' with § 52-593a.

         Over the course of two days, the court held a hearing on the motion to dismiss. The petitioner presented testimony from two witnesses concerning the circumstances under which process was delivered to Lilley. The first witness was Donna Peat, the office manager of the Pattis Law Firm, which represented the petitioner in connection with his petition for a new trial. The second witness was Lilley, the Connecticut state marshal who, in this matter, served process on the respondent on August 6, 2014.

         During her brief examination, Peat testified that on August 5, 2014, she faxed ‘‘a summons and complaint'' in the present action to Lilley's office. She testified that the fax cover sheet[4] admitted into evidence reflected that the transmission was competed at 5:01 p.m. that day, but that she did not have any personal knowledge with respect to whether, on that day, Lilley personally received the documents.[5] Peat testified that Lilley's office ‘‘confirmed that they served it the following morning.''

         Lilley, referring to the fax cover sheet admitted into evidence, testified that, by means of his fax machine, he ‘‘received'' the complaint in this matter on August 5, 2014, at 5:01 p.m. He went on to explain, however, that he did not have any independent knowledge or recollection as to whether, on that date, he received the documents at issue ‘‘personally, '' had ‘‘custody'' of the documents at issue, or ‘‘physically held'' the documents at issue in his hands. Lilley testified that he served the complaint in this matter on August 6, 2014.

         During argument on the motion to dismiss, the parties agreed that § 52-582 was the statute of limitations governing the case and that it began to run on August 5, 2011. The parties agreed that the issue before the court concerned the application of the savings statute, § 52-593a, and, specifically, whether, under subsection (a) of the statute, process was personally delivered to a state marshal on or before August 5, 2014. The parties disagreed, however, with respect to what constituted personal delivery. The petitioner argued that he demonstrated by the evidence presented at the hearing on the motion to dismiss that personal delivery occurred on August 5, 2014; the respondent argued that such a showing had not been made. Additionally, as it relates to the applicability of § 52-593a, the respondent argued, and the petitioner agreed, that the marshal's return did not strictly satisfy subsection (b) of the statute because it did not specify the date on which process had been delivered to the marshal.[6] The petitioner urged the court to conclude that he could satisfy this requirement by means of Lilley's testimony, but acknowledged that he was unaware of any authority that supported that proposition.

         Later, the parties submitted briefs to the court in support of their respective arguments in support of and in opposition to the respondent's motion to dismiss. The respondent made clear that he did not dispute that Peat sent process to Lilley's office via fax on August 5, 2014, and that the fax successfully arrived at Lilley's office. The respondent, however, argued that because Lilley testified that he was unable to verify that he personally received the process on August 5, 2014, the petitioner was unable to avail himself of the remedy provided by § 52-593a. The petitioner, arguing that § 52-593a applied, urged the court to conclude that the remedial nature of § 52-593a weighed in favor of a liberal interpretation of the statute. The petitioner argued that the requirement set forth in § 52-593a (b), that the officer serving process endorse the date that process was delivered to him on his return, is directory and not mandatory. Relying on the evidence presented at the hearing, the petitioner argued that the date ...

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