Merrill Lynch Credit Corp. v. Norman

Full title: MERRILL LYNCH CREDIT CORP. v. JEFFREY M. NORMAN ET AL

Court: Connecticut Superior Court Judicial District of Stamford-Norwalk at Norwalk

Date published: Apr 15, 2005

2005 Ct. Sup. 7029 (Conn. Super. Ct. 2005)

39 CLR 153

Opinion

No. 04-4002749 S

April 15, 2005

MEMORANDUM OF DECISION

DOOLEY, JUDGE.

This foreclosure action was commenced by the plaintiff in December 2004. The summons attached to the complaint provided a return date of December 28, 2004. The defendant seeks to dismiss the complaint on the grounds that the complaint was not filed with the Clerk of the Court within 6 days as required under Conn. Gen. Stat. § 52-46a. For the reasons set forth below, the motion is DENIED.

Conn. Gen. Stat. § 52-46a provides in pertinent part: "Process in civil actions . . . shall be returned . . . if returnable to the Superior Court, . . . to the clerk of such court at least six days before the return day."

The provisions of this statute are mandatory. Failure to comply as to the time when process shall be served renders the proceeding voidable and subject to abatement. 1 Freeman, Judgments (5th Ed.), p. 697; see 33 C.J. 1093, note 78a; 49 C.J.S. 63, note 36.

Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 433 (1989). Indeed, it is well settled that a late return of process renders the action voidable. Arpaia v. Corrone, 18 Conn.App. 539, 541 (1989). Further, if the defendants choose not to waive the jurisdictional defect of a late return, the trial court must dismiss the action. Id. This is because "[i]t is the actual return of the writ to the court which really puts the action before the court and empowers the court to proceed, even prior to the return day . . . Thus, although a defendant in a civil action may consent to jurisdiction of the court, the court may not proceed with the action until the return of process is made to the court." Id. ( citations omitted,). It is therefore abundantly clear that if the process was not returned on or before December 22, 2004, the action must be dismissed.¹ This is a seemingly straight forward inquiry but the material presented to the court suggest a true question of fact.

1 The defendant avers that the court lacks subject matter jurisdiction. However late return of process makes an action voidable, not void and raises an issue of personal jurisdiction, not subject matter jurisdiction. See Arpaia v. Corrone, 18 Conn.App. 539 (1989); Bridgeport v. Debek, 210 Conn. 175, CT Page 7031 179-80 (1989) ("Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person."). As such, a motion to dismiss must be filed within 30 days of the filing of an appearance by a defendant, PB § 10-30, and is waived if not timely filed. PB § 10-32. Here, the defendant filed an appearance on December 29, 2004. The motion to dismiss was filed on February 1, 2005 and was therefore not timely and may be subject to denial on this basis as well.

The original summons and complaint is file-stamped December 23, 2004. However, the plaintiff has provided documentary and testamentary evidence that the summons and complaint were received by the Clerk of the Court on December 22, 2004.² Specifically, the plaintiff has provided an affidavit from counsel's assistant that she sent the documents to the Clerk of the Court via Federal Express on December 21, 2004; that the documents were sent "overnight" delivery; that she called Federal Express on December 22, 2004 to confirm that the materials had been delivered to the Clerk of the Court; that Federal Express advised her that the delivery had been made; that she filed no other pleadings with the Clerk of the Court on that day. Further, counsel has provided records and a letter from Federal Express confirming delivery of the materials to the Clerk of the Court on December 22, 2004.³ While it is unclear as to who signed for the materials and there is no explanation as to why the materials were not date-stamped until the following day, the Court is satisfied, that the evidence presented establishes that the summons and complaint were received by the Clerk of the Court within the statutory time frame. The plaintiff's obligation is to ensure that summons and complaint are physically in the clerk's office within the proscribed time period. See, Rogozinski, 211 Conn. at 435. The Court is satisfied that the plaintiff fulfilled this obligation.

2 When a motion to dismiss raises questions of fact which must be resolved in order to determine the merits of the motion, the court is required to hold an evidentiary hearing. Reliance upon materials submitted by the parties is not adequate. Coughlin v. City of Waterbury, 61 Conn.App. 310, 315 (2001). However, during a conference call with the Court and counsel for both parties, the parties agreed that the Court could, and should, decide the instant motion based upon the submissions of the parties.

3 The plaintiff, in the alternative, argued that by mailing the complaint within the six-day time frame, the statutory requirements were met. He is wrong. Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 435 (1989).

Having so found, pursuant to Practice Book § 7-9, the Court directs the Clerk of the Court to amend the record to reflect that return of process was received by the Court on December 22, 2004. See also, Conn. Gen. Stat. § 51-52a(a); State v. Pena, 16 Conn.App. 518, 533 (1988) ("The clerk is a recording officer, and if he or she has made a mistake the court may amend the record.").

SO ORDERED.

Dooley, J.