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Connecticut Center For Advanced Technology, Inc. v. Bolton Works, LLC

Court of Appeals of Connecticut

August 13, 2019

CONNECTICUT CENTER FOR ADVANCED TECHNOLOGY, INC.
v.
BOLTON WORKS, LLC

          Argued March 5, 2019

         Procedural History

         Summary process action brought to the Superior Court in the judicial district of Hartford, Housing Session, where the court, Shah, J., denied the defendant's motion to dismiss; thereafter, the matter was tried to the court; judgment for the plaintiff, from which the defendant appealed to this court. Affirmed.

          Joshua C. Shulman, for the appellant (defendant).

          Natalie J. Real, with whom was Pat Labbadia III, for the appellee (plaintiff).

          Keller, Elgo and Bishop, Js.

          OPINION

          BISHOP, J.

         The issue in this appeal is whether, pursuant to General Statutes § 52-72, [1] the return date of a summary process complaint can be amended to correct the plaintiff's failure to return the complaint at least three days before the return date as required by General Statutes § 47a-23a.[2] The defendant, Bolton Works, LLC, appeals from the judgment of possession rendered by the trial court in favor of the plaintiff, Connecticut Center for Advanced Technology, Inc. The defendant claims that the trial court improperly concluded that § 52-72 permits the amendment of the return date in the context of summary process actions and that the court therefore erred in denying its motion to dismiss the plaintiff's amended complaint for failure to comply with § 47a-23a. We disagree and, accordingly, affirm the judgment of the trial court.

         The following procedural history is relevant to our resolution of the defendant's appeal. The plaintiff brought a summary process action against the defendant alleging termination of the lease by lapse of time. The writ of summons and complaint were dated October 17, 2017, with a return date of October 26, 2017. Following service on the defendant, the plaintiff returned the process on October 24, 2017-two days before the return date. The defendant subsequently filed a motion to dismiss on the ground that the process was not returned at least three days prior to the return date as required by § 47a-23a.

         To satisfy the three day requirement of § 47a-23a, the plaintiff, on November 15, 2017, filed and served an amended writ of summons and complaint with a return date of November 24, 2017. In response, the defendant filed a motion to dismiss the plaintiff's amended complaint on December 4, 2017, arguing that the failure to return the complaint in a summary process action in compliance with § 47a-23a cannot be cured by amendment and, therefore, the plaintiff's action was still subject to dismissal. The court denied this motion on December 12, 2017, concluding that the plaintiff had properly amended its complaint and the return date pursuant to § 52-72 so as to comply with § 47a-23a. The court subsequently rendered judgment of possession in favor of the plaintiff on December 28, 2017. This appeal followed.

         On appeal, the defendant claims that the trial court improperly concluded that § 52-72 permits the amendment of the return date in the context of summary process actions and that the court therefore erred in denying its motion to dismiss the plaintiff's amended complaint.

         The standard of review for a court's ruling on a motion to dismiss pursuant to Practice Book § 10-31 (a) (1) is well settled. ‘‘A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. . . . In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.'' (Internal quotation marks omitted.) Dorry v. Garden, 313 Conn. 516, 521, 98 A.3d 55 (2014).

         The defendant first contends that we are bound by this court's decision in Arpaia v. Corrone, 18 Conn.App. 539, 559 A.2d 719 (1989), which stated, in the context of a summary process action, that ‘‘[w]here return of service is not timely . . . the defect cannot be cured by amendment.'' (Internal quotation marks omitted.) Id., 540. We disagree.

         In Arpaia, the defendants filed a motion to dismiss the plaintiffs' summary process action for failure to make timely return of process before the listed return date as required by § 47a-23a. Id., 539-40. The trial court denied the defendants' motion and subsequently rendered judgment of possession in favor of the plaintiffs. Id., 539. On appeal to this court, the defendants argued that the trial court had erred in denying their motion to dismiss the plaintiffs' action because the plaintiffs made return of process only two days prior to the return date, not three and, therefore, the action was subject to dismissal upon timely motion. Id., 539-40. Agreeing with the defendants, this court reversed the judgment of possession, concluding that, because the defendants had filed a timely motion to dismiss the plaintiffs' action, thereby choosing not to waive the defect in the process, the trial court was required to grant the motion. Id. In so concluding, this court noted that, when return of service is ...


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