Opinion
No. CV06 5006892S
November 7, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#130)
The plaintiffs, Janet Gello and Gello Brothers, Inc., bring this action alleging that the defendant, Richard Stevens, defaulted on a loan made by the plaintiffs, and guaranteed by the defendant Shirley Stevens. The date of the writ of summons was February 9, 2007. The return date listed was March 27, 2007. Service was delivered to Shirley Stevens at her usual place of abode on February 17, 2007. Service was also delivered to Richard Stevens in hand on February 19, 2007. The plaintiffs returned the process on May 3, 2007. On May 7, 2007, pursuant to General Statutes § 52-72, the plaintiffs filed a "motion to amend process" to change the return date from March 27, 2007 to May 22, 2007, in order to comply with General Statutes § 52-46a, which requires that process be returned to the clerk of the court at least six days before the return date. On June 25, 2007, the court (Cosgrove, J.) granted the motion "absent objection." On June 3, 2008, the defendants filed a motion to dismiss the complaint on the ground that the court lacked subject matter jurisdiction over the case because the amended return date was more than two months after the date of process in violation of General Statutes § 52-48(b). The plaintiffs filed an objection to the motion to dismiss on August 11, 2008, arguing that the defendants had already consented to the amendment and, in any case, would not be prejudiced by the amended return date.
The plaintiffs argue that the defendants waived the right to challenge the motion to amend the return date. The plaintiffs observe that issues related to this action have been pending since November 1, 2006, when the plaintiffs served an application for prejudgment remedy on the defendants. The plaintiffs note that the motion to amend to return date was granted without objection almost one year before the defendants filed this motion to dismiss. And, the plaintiffs further argue that the pleadings have been closed and the action had been scheduled for trial. The defendants do not dispute any of these facts.
While it is true that the defendants waited more than a year to raise the issue, once raised, the matter of subject matter jurisdiction must be addressed. "It is fundamental that the issue of subject matter jurisdiction may be raised at any time. `Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by an action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.' (Internal quotation marks omitted.) Vitale v. Zoning Board of Appeals, 279 Conn. 672, 678 (2006). `[A] challenge to the jurisdiction of a court to render a judgment may be raised at any time because of lack of subject matter jurisdiction cannot be waived.' (Internal quotation marks omitted.) DiBerardino v. DiBerardino, 213 Conn. 373, 377 (1990). `The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte at any stage of the proceedings . . .'" Peters v Dept. of Social Services, 273 Conn. 434, 441 (2005). Accordingly, the Court will consider the merits of the motion to dismiss despite the untimeliness of its filing." Mitchell v. Nadel Industries, LLC, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 075006797 (October 8, 2008, Tobin, J.).
General Statutes § 52-46a provides in pertinent part that: "Process in civil actions . . . shall be returned . . . if returnable to Superior Court . . . to the clerk of such court at least six days before the return day." General Statutes § 52-48(b) provides that: "All process shall be made returnable not later than two months after the date of the process and shall designate the place where the court is to be held." And, General Statutes § 52-72 states that: "(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return date or is for any other reason defective . . ."
Although not directly addressing the precise issue of whether a court has subject matter jurisdiction over an action which is returned to court more than two months from the date of service of process, the Supreme Court has considered the role of General Statutes § 52-48(b) in limiting the ability to amend a late return date pursuant to General Statutes § 52-72. Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998). In Coppola, the plaintiff, pursuant to General Statutes § 52-72, sought to amend the return date in her action because she failed to return process at least six days before the return date as required by General Statutes § 52-46a. The defendant in the case argued that General Statutes § 52-46a, along with any other rules on return of process, would be meaningless if the plaintiff could cure the mistake, at will, by simply filing an amendment under General Statutes § 52-72. The court in Coppola concluded that, even though General Statute § 52-72 is to be liberally construed and applied, § 52-72 amendments must still meet the two month time requirement in General Statutes § 52-48(b). "Allowing an amendment of the return date under the circumstances of the present case does not render § 52-46a meaningless. A return date may be amended but it still must comply with the time limitations set forth in § 52-48(b). Section 52-48(b) . . . circumscribes the extent to which a return date may be amended." (Emphasis added.) Id., 666.
In Coppola, the Supreme Court construed § 52-72 to be remedial and "to ameliorate the consequences of many deviations from the prescribed norm, which result largely from the fallibility of the legal profession, in order generally to provide errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw." Id., 664-65. Nonetheless, that Court did not relieve the plaintiff of his/her obligation to meet the requirements of § 52-48(b).
Applying the reasoning of the Supreme Court in Coppola, this court concludes that a court is free to permit an amendment affecting the return date so long as the amendment is in compliance with General Statutes § 52-48(b). The Supreme Court in Coppola articulated a clear policy of leniency towards allowing amendments. It did not, however, relieve the plaintiff of the obligation to comply with General Statutes § 52-48(b).
While the Supreme Court did not explicitly state in Coppola whether or not failure to comply with the mandates of § 52-48(b) implicates subject matter jurisdiction, several trial courts have concluded that it does. See, Van Ser Sluys v. City of Shelton, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 085006047 (September 19, 2008, Cronan, J.); Szeligowski v. Lowe's Co., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 065004607 (January 23, 2007, Holden, J.) ( 42 Conn. L. Rptr. 714); Gabriele v. Wisharp, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 020390841 (September 23, 2002, Wolven, J.); Lestor v. Mangar, Superior Court, judicial district of Danbury, Docket No. CV010344146 (July 10, 2002, Doherty, J.) ( 32 Conn. L. Rptr. 479); and Archie v. Yale, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 990430379 (January 13, 2000, Fracasses, J.) [ 26 Conn. L. Rptr. 330].
The trial court in Archie observed that pre- Coppola, the Supreme Court "did not take any position regarding the relationship between a return day, or the date of return of process, and subject matter jurisdiction." Archie v. Yale, supra, Superior Court, Docket No. CV 990430379. Because of the explicit holding therein, the trial court in Archie concluded that Coppola clarified that General Statutes § 52-72 corrects an incurable defect and "such a defect implicates the court's subject matter jurisdiction." Id. Similarly in Gabriele, the court concluded that "[a]n improperly specified return date affects the court's jurisdiction and is not a minor error," because it implicates the court's subject matter jurisdiction. Gabriele v. Wisharp, supra, Superior Court, Docket No. CV020390841, citing Carlson v. Fisher, 18 Conn.App. 488, 495-96, 558 A.2d 1029 (1989).
The plaintiffs rely on Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 309 763 A.2d 1055 (2001), in arguing that they should be allowed to amend the return date. This court finds Olympia distinguishable from the instant matter. In Olympia the amendment of the return date allowed for a correction of all errors in the case regarding the return of process. Specifically, the amendment allowed the plaintiff in Olympia to be in compliance with both General Statutes §§ 52-48(b) and 52-46a. In the instant case, the amendment does not result in the plaintiff being in compliance with all the rules on the return of process. Rather, the amendment allows the plaintiff to comply with the six-day requirement for return of process under General Statutes § 52-46a. But, it fails to correct the plaintiffs' violation of requirement for return of process pursuant to General Statutes § 52-48(b).
This court concludes that the plaintiffs' failure to comply with § 52-48(b) deprives this court of subject matter jurisdiction, and therefore, the defendants' motion to dismiss must be granted.