Opinion
No. CV 020390240
May 21, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
The defendant, Estate of Robert J. Carpenter (the Estate) has moved the court to dismiss this appeal from probate brought by the State of Connecticut, Department of Social Services (DSS) "due to the insufficiency of the process."
The plaintiff, state of Connecticut, department of social services, brought this probate appeal from a decree of the Probate Court regarding the estate of Robert A. Carpenter.
On January 24, 2002, the plaintiff filed a motion for appeal with the Probate Court. In its motion, the defendant requested "the second Tuesday of April 2002, i.e., April 9, 2002, as the return date."
On January 31, 2002, the Probate Court granted the plaintiff's request to appeal the decree to the Superior Court and ordered that notice be served on all defendants by civil service. Process was served in hand upon the defendants, Robert A. Carpenter and Joan A. Carpenter, as conservatrix for her husband, on February 7, 2002, and upon the defendant, Richard McCarthy, Esq., on February 8, 2002. The plaintiff returned the process to the Superior Court on February 11, 2002.
The defendants filed an appearance on April 11, 2002.
On May 1, 2002, the defendants filed the present motion to dismiss on the ground of insufficiency of process because the return date of April 9, 2002, is more than two months past January 24, 2002, the date of the summons.
The defendants argue that the plaintiff's return date violates the requirement of General Statutes § 52-48 (b), i.e., that the return date must be no later than two months after the date of process. On May 31, 2002, the plaintiff filed a memorandum in opposition arguing that: (1) the Probate Court authorized the present appeal with the April 9, 2002, return date and therefore, the plaintiff should not be denied its absolute right to a probate appeal; (2) a probate appeal is not subject to the time restraints of § 52-48 (b) because it is not a civil action; and (3) it satisfied the two-month time requirement of § 52-48 (b) because the probate clerk received the papers on January 24, 2000, two of the defendants were served in hand on February 7, 2002, the third defendant was served in hand on February 8, 2002, and the papers were returned to the court on February 11, 2002. On January 29, 2003, the defendants filed a reply in further support of their motion, agreeing that a party may not lose the right to appeal from a probate decree on account of an error or omission of the Probate Court, but in this case, it was the plaintiff and not the Probate Court who selected the improper return date. "A motion to dismiss [properly asserts lack of jurisdiction of the court] essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process." Practice Book § 10-31. "A ruling on a motion to dismiss is neither a ruling on the merits of the action . . . nor a test of whether the complaint states a cause of action . . . Motions to dismiss are granted solely on jurisdictional grounds." (Internal quotation marks omitted.) Olson v. Accessory Controls Equipment Corp., 54 Conn. App. 506, 515, 735 A.2d 881 (1999), aff'd., 254 Conn. 145, 757 A.2d 14 (2000). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 804 A.2d 152 (2002).
The defendants' motion is premised on its contention that the plaintiff failed to comply with § 52-48 (b), which statute provides: "All process shall be made returnable not later than two months after the date of process and shall designate the place where court is to be held."
The plaintiff first argues that it should not be denied its absolute right to an appeal because the probate court authorized the appeal with a return date of April 9, 2002. The plaintiff cites, In re Michaela Lee R., 253 Conn. 570, 756 A.2d 214 (2000), for the proposition that its failure to comply with service of process statutes is not fatal to its appeal because it is the duty of the Probate Court to make process returnable on a proper date.
The plaintiff is correct that "[a]n appeal from probate is an absolute right of an aggrieved person which cannot be deprived by any omission of Probate Court." (Internal quotation marks omitted.) In re Michaela Lee R., supra, 253 Conn. 606. The plaintiff's reliance on that case for the proposition that its failure to comply with § 52-48 (b) is not fatal to an appeal is misplaced. The Supreme Court did not renounce compliance with the service of process statutes, but stated only that a plaintiff will not be denied the right to appeal because the appeal was not served in compliance with General Statutes §§ 52-46 and 52-46a where an error in selecting an appropriate return date is attributable to the Probate Court, and not to the plaintiff. Id., 606-07.
Although, "[p]ursuant to General Statutes § 45a-192, it is the duty of probate courts to make process returnable on a proper return date"; In re Michaela Lee R., supra. 253 Conn. 606-07; after "[a]n analysis and review of [the] Practice Book, case law and treatises . . . it is the plaintiff, not the Probate Court, who is responsible for setting an appropriate return date in accordance with General Statutes § 52-48 . . . Upon notice of a defective return date, it is the plaintiff's responsibility to bring such a defect to the Probate Court's attention and request a correction . . . If the defect [in the return date is] properly brought to the Probate Court's attention, the Probate Court [is] obligated to make an appropriate correction." (Citations omitted.) Kozek v. Rotella, Superior Court, judicial district at New London, Docket No. CV 98 547326 (February 5, 1999, Mihalakos, J.) ( 24 Conn.L.Rptr. 70, 71-72).
In the present case, the plaintiff and not the Probate Court selected the April 9, 2002 return date. Furthermore, the plaintiff has not indicated that it made any attempt to inform the Probate Court of any defect in the return date. Therefore, the error in the return date is attributable to the plaintiff and not to the Probate Court.
The plaintiff further argues that its failure to comply with § 52-48 (b) is not fatal to this appeal because it is the probate appeal statutes and not the civil service of process statutes that give the Superior Court jurisdiction over a probate appeal. In addition, the plaintiff argues that the defendants cannot claim any harm, prejudice, or lack of notice of the appeal because the probate clerk received the papers on January 24, 2002, two of the defendants were served in hand on February 7, 2002, the third defendant was served in hand on February 8, 2002, and service of process was returned to the Superior Court on February 11, 2002, all within the two-month time requirement of § 52-48 (b).
It is true that "[a]n appeal from a Probate Court to the Superior Court is not an ordinary civil action." (Internal quotation marks omitted.) Kerin v. Stangle, 209 Conn. 260, 263, 550 A.2d 1069 (1988). However, "[a] probate appeal is considered a civil action for the purposes of mesne process." Kucej v. Kucej, 34 Conn. App. 579, 583, 642 A.2d 81 (1994). Pursuant to General Statutes § 52-48 (b), "[o]nce an action has been brought by service of process on the defendant, a trial court may thereafter dismiss the action for failure to return the service of process within the mandated time period [of § 52-48 (b)]." (Internal quotation marks omitted.) Coppola v. Coppola, 243 Conn. 657, 662, 707 A.2d 281 (1998).
"It is true that an improperly specified return date affects the court's jurisdiction . . . The defect of an improper return day is not a minor defect." (Citations omitted; internal quotation marks omitted.) Carlson v. Fisher, 18 Conn. App. 488, 495, 558 A.2d 1029 (1989). "[I]n light of General Statutes § 52-48 (b) . . . if a return of process `defect' involves a [plaintiffs'] failure to return process to court within two months after service on the defendant, such a defect implicates the court's subject matter jurisdiction . . . This rule applies to probate appeals." (Citations omitted; internal quotation marks omitted.) Allen v. Appeal From Probate, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02396624 (March 4, 2003, Levin, J.) ( 34 Conn.L.Rptr. 199).
In the present case, the date of the summons was January 24, 2002, the date process was served on two of the defendants was February 7, 2002, and on February 8, 2002, as to the third defendant, and the return date selected by the plaintiff was April 9, 2002. General Statutes § 52-48 (b) provides that the return day must be no later than two months after the date of process. It is vital to note, however, that it is undisputed and a matter of record that the plaintiff actually returned the process to the court on February 11, 2002, just days after it was served on the defendants and within nineteen days of the date on the process, all well within the two-month period required by § 52-48 (b). Thus, although the plaintiff did not comply with the technical requirements of the statute, it did comply with its purpose. Accordingly, "the court has subject matter jurisdiction because proper return of process was made to the court within the time specified by statute." Crissey v. The Stop Shop Supermarket Co., Superior Court, judicial district at Danbury, Docket No. CV 96 324998 (May 8, 1997, Stodolink, J.) ( 19 Conn.L.Rptr. 406).
As noted above, in Coppola v. Coppola, the Supreme Court stated "[o]nce an action has been brought by service of process on the defendant, a trial court may thereafter dismiss the action for failure to return the service of process within the mandated time period [of § 52-48 (b)]." (Emphasis added; internal quotation marks omitted.) Coppola v. Coppola, supra, 243 Conn. 662. In that case, the court also emphasized "our expressed policy preference [is] to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice . . . Rules are a means to justice, and not an end in themselves . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure." (Citations omitted; internal quotation marks omitted.) Id., 665.
In Olympia Mortgage Corp. v. Klein, 61 Conn. App. 305, 763 A.2d 1055 (2001), the court also discussed this policy in the context of General Statutes §§ 52-48b and 52-72. Section 52-72 provides in pertinent part: "Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective . . ." General Statutes § 52-72. The court explained "[a]lthough § 52-48 sets forth a two-month time limitation for return of process, the legislature, by enacting § 52-72, clearly provided parties an avenue to correct procedural error concerning such process." Olympia Mortgage Corp. v. Klein, supra, 61 Conn. App. 309.
Thus, even though this court concludes that the plaintiff, and not the Probate Court was responsible for selecting a return date that ended up being more than two months after the date of process, the court hereby denies the defendant's motion to dismiss without prejudice for reconsideration should the plaintiff fail to file a motion to amend the return date to come in conformance with §§ 52-46 and 52-48 (b), within ten days of the date hereof.
By the Court,
Joseph W. Doherty, Judge