Opinion
No. CV06-5001377S
March 19, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS NO. 105
This is a motion to dismiss filed by the defendant for lack of subject matter jurisdiction, on the grounds that the plaintiff's claim is not justiciable, for lack of personal jurisdiction, and the grounds that the summons was improperly amended or improperly served.
FACTS
On November 9, 2006, the plaintiff, Oaks Condominium Association (Oaks), filed a two-count complaint against the defendants, Steven Small and Maureen Williams, alleging legal malpractice. On February 10, 2007, the defendant filed a motion to dismiss on the grounds that the court lacks subject matter and personal jurisdiction. The defendant alleges that: (1) the court lacks subject matter jurisdiction because the plaintiff's claims are not justiciable; and (2) that the court lacks personal jurisdiction because the plaintiff improperly amended the summons and that the amended summons was never properly served. On April 19, 2007, the plaintiff filed a memorandum in opposition and on July 6, 2007, filed a supplemental memorandum. On October 29, 2007, the court heard oral argument, received witness testimony and evidence and the defendant filed a reply. On November 5, 2007, the plaintiff, with leave of court, filed a supplemental memorandum to the defendant's reply and on November 16, 2007, the defendant filed a supplement to his motion. Additional facts, which are pertinent to each jurisdictional issue, are set forth below.
Hereinafter, the term "the defendant" refers only to Small.
DISCUSSION
"A motion to dismiss . . . properly attacks the 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). Practice Book § 10-31 provides in relevant part: "(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person . . . (4) insufficiency of process, and (5) insufficiency of service of process . . ."
I
On November 30, 1982, the lessors, Vincent Celentano, Marvin Leventhal, Richard LoRicco and Lawrence Levy, owned two parcels of real property, which were improved with two apartment buildings, located at seventy-nine and eighty Claudia Drive, West Haven, Connecticut. On that same day, the lessors sold the buildings and simultaneously executed a ground lease to Melrose Apartments, Inc. (Melrose). The ground lease conveyed a leasehold interest in the underlying land to Melrose for a term of ninety-nine years, and included an escalating rent schedule and an option to purchase. Thereafter, Melrose declared a 108-unit condominium, named "The Oaks," on the two properties and subsequently conveyed these units to purchasers.
Thereafter, the plaintiff and the lessors engaged in lengthy negotiations regarding the option to purchase. These negotiations, however, failed and litigation ensued. The defendant was the plaintiff's attorney in this litigation. During this litigation, the plaintiff's claim of specific performance, which sought to enforce the option to purchase the land, was adjudicated as time-barred because the applicable limitation period, pursuant to General Statutes § 52-37a(a), had elapsed. Specifically, the defendant had failed to timely institute the specific performance action to enforce the purchase option; this failure to timely file triggered the present legal malpractice suit. On November 21, 2003, the plaintiff filed for bankruptcy. On October 29, 2007, during the evidentiary hearing on the present motion to dismiss, a compromise and settlement agreement was presented, which was approved by the bankruptcy court on December 17, 2004. One of its provisions provides that the proceeds of any legal malpractice action against the defendant shall be paid to the lessors to pay off the judgment rendered in the underlying litigation.
Section 52-37a(a) provides: "No interest in real property existing under an executory agreement for the sale of real property or for the sale of an interest in real property or under an option to purchase real property shall survive longer than one year after the date provided in the agreement for the performance of it or, if the date is not so provided, longer than eighteen months after the date on which the agreement was executed, unless the interest is extended as provided herein or unless action is commenced within the period to enforce the agreement and notice of lis pendens is filed as directed by section 52-325."
The defendant argues that the lessors were given an assignment of the proceeds of this present legal malpractice action. The defendant maintains that because such an assignment is against public policy as stated in Gurski v. Rosenblum Filan, LLC, 276 Conn. 257, 855 A.2d 163 (2005), the plaintiff's claim is not justiciable and the court, herefore, lacks subject matter jurisdiction. The plaintiff argues that its claim is justiciable because Gurski is distinguishable from the present case. Specifically, the plaintiff argues it did not assign its potential judgment in the present case to the lessors, and that, even if it is found to have done so, only the assignment is unenforceable, not the legal malpractice claim itself.
"[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the 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, 904 A.2d 182 (2006). "[T]he question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case." (Internal quotation mark omitted.) West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 15-16 n. 8, 901 A.2d 649 (2006). "[E]very presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 778-79, 900 A.2d 1 (2006).
"The burden rests with the party who seeks the exercise of jurisdiction in his favor clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). "When issues of fact are necessary to the determination of a court's jurisdiction . . . due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." (Internal quotation marks omitted.) Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 861 A.2d 1160 (2004).
In Gurski v. Rosenblum Filan, LLC, supra, 276 Conn. 257, the plaintiff, a podiatrist, filed for bankruptcy and was later sued for medical malpractice by Lee, a former patient. The plaintiff's insurer initially hired the defendant, a law firm, to defend the plaintiff in the medical malpractice case, but later determined that the plaintiff's medical malpractice insurance policy did not cover the claim. The defendant moved to withdraw its appearance and instructed the plaintiff to retain new counsel. A settlement hearing on the medical malpractice action was scheduled, but neither the plaintiff nor the defendant attended. As a result, the court entered a default judgment against the plaintiff. Thereafter, the defendant's motion to withdraw its appearance was granted and Lee claimed the default for a hearing in damages. The plaintiff retained other counsel that unsuccessfully moved to open the default judgment.
The plaintiff was unable to pay the default judgment from the medical malpractice suit and, in an effort to confirm his bankruptcy case, he made a motion to compromise in his bankruptcy proceeding. In the motion to compromise, he offered to assign Lee any recovery he gained from the legal malpractice claim his bankruptcy estate held against the defendants. Lee accepted the motion to compromise, subject to certain enumerated conditions. The plaintiff, in accordance with the motion to compromise, filed suit against the defendant alleging negligence and breach of contract. The defendant responded with several special defenses, one of which was that the assignment violated public policy and was unenforceable. The plaintiff successfully prosecuted his case and the trial court denied the defendant's motion for judgment notwithstanding the verdict, which was grounded in the argument that the assignment was unenforceable because it was improper for the plaintiff in the legal malpractice case to assign that claim to an adversarial party in the underlying medical malpractice litigation.
On appeal, the Supreme Court analyzed cases from other jurisdictions that examined the public policy concerns of assigning legal malpractice claims. Of the many public policy arguments the court considered, the court was chiefly persuaded that allowing the assignment would "necessitate a duplicitous change in the positions taken by the parties in the antecedent litigation." (Internal quotation marks omitted.) Gurski v. Rosenblum Filan, LLC, supra, 276 Conn. 277. Specifically, the court agreed with the Texas Appellate Court's analysis in Zuniga v. Groce, Locke Hebdon, 878 S.W.2d 313, 318 (Tex.App. 1994) wherein that court stated that "[t]he two litigants would have to take positions diametrically opposed to their positions during the underlying litigation because the legal malpractice case requires a suit within a suit . . . For the law to countenance this abrupt and shameless shift of positions would give prominence (and substance) to the image that lawyers will take any position, depending upon where the money lies, and that litigation is a mere game and not a search for truth . . . It is one thing for lawyers in our adversary system to represent clients with whom they personally disagree; it is something quite different for lawyers (and clients) to switch positions concerning the same incident simply because an assignment and the law of proximate cause have given them a financial interest in switching." (Internal quotation marks omitted.) Gurski v. Rosenblum Filan, LLC, supra, 276 Conn. 277-78.
The Connecticut Supreme Court agreed that "[t]his counterintuitive claim and reversal of roles, requiring the assignee to bring a claim for legal malpractice when she was the very party who benefitted from that malpractice in the underlying litigation, would engender a perversion that would erode public confidence in the legal system . . . Permitting an assignment of a legal malpractice claim to the adversary in the underlying litigation that gave rise to the legal malpractice claim also creates the opportunity and incentive for collusion in stipulating to damages in exchange for an agreement not to execute on the judgment in the underlying litigation." (Citation omitted.) Id., 278. Accordingly, the Supreme Court concluded that "neither a legal malpractice claim nor the proceeds from such a claim can be assigned to an adversary in the same litigation that gave rise to the alleged malpractice . . ." Id., 265-66.
In the present case, no assignment has been executed. "An assignment is a contract between the assignor and the assignee, and is interpreted or construed according to rules of contract construction." (Internal quotation marks omitted.) Schoonmaker v. Laurence Brunoli, Inc., 265 Conn. 210, 227, 828 A.2d 64 (2000). "Generally, to constitute an assignment there must be a purpose to assign or transfer the whole or a part of some particular thing, debt, or chose in action, and the subject matter of the assignment must be described with such particularity as to render it capable of identification . . . Under the hornbook law of assignments, [t]he assignee of a chose in action stands in the shoes of the assignor . . . Indeed, [s]uccession by an assignee to exclusive ownership of all or part of the assignor's rights respecting the subject matter of the assignment, and a corresponding extinguishment of those rights in the assignor, is precisely the effect of a valid assignment . . ." (Citations omitted; internal quotation marks omitted.) Id.
No contract between the plaintiff and the defendant has been submitted to the court. Rather, the defendant argues in his reply brief that "the Connecticut Supreme Court [in Gurski] construed the terms of the bankruptcy compromise in total to be synonymous to the terms of the `assignment' it was then considering." In Gurski, however, there was explicit language in the motion to compromise and the bankruptcy court's order that the plaintiff assign to Lee any recovery in the legal malpractice case. "The motion to compromise provided that Lee would agree `to compromise her claim against the estate in exchange for the following: (a) The estate will prosecute its legal malpractice claim against [the defendant law firm]. (b) The estate will assign any recovery from this action to [Lee] and grant her a security interest therein, up to the amount of her judgment . . ." (Emphasis in original.) Gurski v. Rosenblum Filan, LLC, supra, 276 Conn. 262 n. 4. Further, in Gurski the bankruptcy court granted the motion to compromise subject to the following orders: "(1) [ Gurski] may compromise the claim against the [bankruptcy] estate held by [Lee] by assigning to her the estate's interest in a certain legal malpractice claim . . ." (Internal quotation marks omitted.) Id., 263. Our Supreme Court stated that "[t]hese conditions, in conjunction with the terms set forth in Gurski's motion to compromise . . . constitute the terms of the assignment at issue in this appeal." Id.
In the present case, there is no language to construe an assignment from the plaintiff to the lessors, rather the opposite is true. At the October 29, 2007 evidentiary hearing, the plaintiff submitted exhibit 1, a copy of the fourth amended plan of reorganization from the plaintiff's bankruptcy case. On page three and continuing onto page four, this document provides: "Class 1-Allowed Unsecured Claims. This class is comprised of all allowed unsecured claims against the [plaintiff] including the . . . claims of the [lessors] . . . These claims may be disputed and subject to Objections filed with the Court. If the [plaintiff's] objections to said claims are not sustained in full any remaining amount of said claims as determined by this Court shall be treated as all other claims in this class. The total of unsecured claims in this class is undermined at this time. To the extent that Property of the Estate is insufficient to pay this class in full, claims under this class shall receive no further distribution. Nothing in this provision or otherwise in this Plan shall be constructed as an assignment of any Property of the Estate including but not limited to the Malpractice claims; the [plaintiff] retaining all right, title and interest therein."
This document is also attached to his supplemental memorandum in opposition.
Furthermore, on page five, the document provides: "Class 1-Allowed Unsecured Claims. This class of allowed unsecured claims will receive payment pro rata until paid in full from the liquidation of the Assets of the Estate. Nothing in this provision or otherwise in this Plan shall be construed as an assignment of any Property of the Estate including but not limited to the Malpractice Claims; the [plaintiff] retaining all right, title and interest therein." This language specifically prohibits construing any provisions of the bankruptcy reorganization plan as an assignment from the plaintiff to the lessors. Based on the facts the reliance on Gurski is misplaced.
Accordingly, the motion to dismiss for lack of subject matter jurisdiction is denied.
II
The following facts are relevant to the defendant's motion to dismiss for lack of personal jurisdiction. The plaintiff's initial complaint was dated February 9, 2005, and had a return date of February 13, 2006, which was not a Tuesday. The original summons was signed on November 10, 2005, and bore the same return date, February 13, 2006. Both the summons and complaint were served, in-hand, on the defendant on November 14, 2005. On December 14, 2005, the plaintiff filed a motion to amend process, which was granted on December 19, 2005. Specifically, the plaintiff amended the summons by changing the date it was signed to November 9, 2005, and changing the return date to January 3, 2006. According to the officer's return, the defendant was served the amended return in-hand on December 22, 2005. The officer's amended return, however, states that the defendant was served at his abode on the same day. Additional facts will be set forth as necessary.
The defendant argues that the court does not have personal jurisdiction over him because: (1) the plaintiff improperly amended process in violation of General Statutes § 52-72; (2) process was improperly served in violation of General Statutes § 52-54; and (3) he was not served within twelve days of the return date in violation of General Statutes § 52-46. The plaintiff argues that both the amendment to process and the service of the amended process was proper.
A
The defendant first argues that the court lacks personal jurisdiction over him because the plaintiff failed to follow the statutory process for amending process as set forth in General Statutes § 52-72. Specifically, he argues that he did not receive any notice of the plaintiff's attempt to amend process, as Practice Book § 10-60 requires, and that he was, therefore, prejudiced and his due process rights were violated. The plaintiff argues it has complied with the necessary statutory and practice book rules and that, therefore, the amendment was proper.
Section 52-72 provides in relevant part: "(a) 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, upon payment of costs taxable upon sustaining a plea in abatement. (b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form."
"Section 52-72 is a remedial statute that must be liberally construed in favor of those whom the legislature intended to benefit . . . [S]tatutes such as § 52-72 were intended to take the sharp edges off the common law . . . Centuries ago the common law courts of England . . . insisted upon rigid adherence to the prescribed forms of action, resulting in the defeat of many suits for technical faults rather than upon their merits. Some of that ancient jurisprudence migrated to this country . . . and has affected the development of procedural law in this state . . . [H]owever, our legislature enacted numerous procedural reforms applicable to ordinary civil actions that are designed 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 . . . The legislature, in enacting § 52-72, expressed an intent to reject the draconian result of dismissal of the plaintiff's cause of action because of a defect involving the return date. The principles of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results . . . The construction of the term defective to permit an amendment of the return date to correct the plaintiff's failure to return process six days prior to the return day effectuates the statute's remedial purpose and statutory policy of amend[ing] . . . otherwise incurable defects that go to the court's jurisdiction . . ." (Citations omitted; internal quotation marks omitted.) Coppola v. Coppola, 243 Conn. 657, 664-65, 707 A.2d 281 (1998).
"General Statutes § 52-72 requires the trial court to allow a proper amendment to defective process . . . Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court . . . [Thus] [o]ur practice does not favor the termination of proceedings without a determination of the merits of the controversy whe[n] that can be brought about with due regard to necessary rules of procedure . . . For that reason, [a] trial court should make every effort to adjudicate the substantive controversy before it . . . and, whe[n] practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal." (Citations omitted; emphasis added; internal quotation marks omitted.) Fedus v. Planning Zoning Commission, supra, 278 Conn. 769-70.
In the present case, the plaintiff amended the return date and the date the summons was signed. The court should find that the amendment to the summons was not improper because of the language of § 52-72, the liberal interpretation of that statute by the courts, the legislature's intent in enacting that statute and this state's public policy of adjudicating the merits of a case, rather than dismissing a case for technical defects contained in the summons.
The defendant also argues that the plaintiff did not apprise him of its motion to amend the summons, as it is required to do under Practice Book § 10-60, and, as a result, he has been prejudiced. The plaintiff argues that when it made the motion to amend the defendant had not yet appeared and, therefore, no such notice of its motion to amend was required.
Practice Book § 10-60 provides in relevant part: "a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner . . . (3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10-12 . . ." Practice Book § 10-12 provides in relevant part: "(a) It is the responsibility of counsel . . . to serve on each other party who has appeared one copy of every pleading subsequent to the original complaint, every written motion other than one in which an order is sought ex parte and every paper relating to discovery, request, demand, claim, notice or similar paper . . . (c) Any pleading asserting new or additional claims for relief against parties who have not appeared or who have been defaulted shall be served on such parties." (Emphasis added.)
The plaintiff's motion to amend process was filed on December 14, 2005; the defendant, however, had not appeared until January 4, 2006. Therefore, under subsection (a) of § 10-12 the plaintiff was not required to serve any pleadings or motions on the defendant because he had not yet appeared. In addition, the amended process did not set forth new or additional claims, so the plaintiff was not required under subsection (c) of § 10-12 to serve the defendant with the motion to amend process. Furthermore, the defendant is not prejudiced due to the original return date being greater than sixty days beyond the summons date. While the original return date of February 13, 2006, violates General Statutes § 52-48, the amended return date of January 3, 2006 complies with this statute because that amended date is within sixty days of the summons date, which was November 9, 2005. Therefore, the amended process complies with the statutory language of § 52-48 because it was properly amended to be within the sixty-day time period from the date on the summons.
Section 52-48 provides in relevant part: "(a) Process in civil actions, including transfers and applications for relief or removal . . . brought to the Superior Court may be made returnable on any Tuesday in any month . . . (b) All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held."
Accordingly, the defendant's motion to dismiss for lack of personal jurisdiction, on the ground that the plaintiff did not properly amend process, is denied.
B
The defendant next argues that he was not served according to General Statutes § 52-54 and, therefore, the court lacks personal jurisdiction over him. Specifically, he argues that, while he received in-hand service of the original summons and complaint, he was served the amended summons by facsimile only and that this is not proper service. The plaintiff argues that the court does have personal jurisdiction over the defendant because he was properly served at his abode, and, in addition to this, the marshal faxed a courtesy copy of the summons to him.
General Statutes § 52-54 provides: "The service of a writ of summons shall be made by the officer reading it and the complaint accompanying it in the hearing of the defendant or by leaving an attested copy thereof with him or at his usual place of abode. When service is made by leaving an attested copy at the defendant's usual place of abode, the officer making service shall note in his return the address at which such attested copy was left."
"As a general matter, the burden is placed on the defendant to disprove personal jurisdiction. The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the [marshal's] return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007). "The [marshal's] return is prima facie evidence of the facts stated therein." Bove v. Bove, 93 Conn.App. 76, 82, 888 A.2d 123 (2006). Indeed, "[i]n many cases jurisdiction is immediately evident, as where the [marshal's] return shows abode service in Connecticut." (Internal quotation marks omitted.) Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 855, 911 A.2d 1149 (2006). While the return creates a strong presumption of the facts stated in it, "[the return] may be contradicted and facts may be introduced to show otherwise" (Internal quotation marks omitted.) Id., 863 (McLachlan, J., dissenting).
In the present case, the marshal's amended return states: "Then and there by virtue of the original Motion to Amend Process, Signed Order, Writ, Summons and Complaint, and on the 22nd day of December 2005, in the City of Milford, County of Milford, State of Connecticut, I [Mark J. White, State Marshal, New Haven County] served the within named defendant, Small, Stephen I., by leaving at the usual place of abode of said defendant, Small, Stephen I., 15 Rock Road, Rear Door Left, Milford, CT, a true and attested copy, with endorsements thereon; and as a courtesy to the defendant, I faxed a copy to the principal place of business of said defendant."
These statements are directly refuted by the defendant in his affidavit. There, he avers that he never received abode service of process, but only the faxed copy of the amended process. The defendant, however, has not presented evidence that the address provided in the marshal's return is incorrect or that it was not possible to serve the summons as the marshal did. The simple, self-serving blanket denial contained in the defendant's own affidavit is not sufficient to rebut the presumption of truth created by the statements in the marshal's return. The fact that the defendant received by facsimile a copy of the amended summons and return, in addition to proper abode service, does not pollute the court's personal jurisdiction over him.
The defendant recited the same denials at the evidentiary hearing on the present motion to dismiss.
"Our Supreme Court has determined that the purpose of abode service is to afford a defendant actual notice of a pending action. Abode service is only a step removed from manual service and serves the same dual function of conferring jurisdiction and giving notice . . . Its chief purpose is to ensure actual notice to the defendant that the action is pending . . . Accordingly, in order to effectuate abode service, [t]he process must be left at the usual place of abode of the defendant in such a place and in such a manner that is reasonably probable the defendant will receive the notice of the action against him . . ." (Citations omitted; internal quotation marks omitted.) Fine Homebuilders, Inc. v. Perrone, supra, 98 Conn.App. 857.
In the present case, the defendant testified at the hearing that he and his family use the rear door frequently. The marshal testified that he slipped the summons in between this same door and the door jam. As the marshal left the summons at a door that the defendant and his family regularly used, such service was reasonably probable to give him actual notice and, therefore, service at the rear door was not improper. In addition, the defendant stated he had actual knowledge of the suit against him because he was served in-hand by the marshal with the original summons and complaint. "[W]here the defendant has received actual notice of the action against him, the statutory provisions for substituted service should be liberally construed by the court . . . Actual notice weighs heavily in favor of the plaintiff; the defendant cannot be heard to say that he was prejudiced in any manner whatsoever . . ." (Citations omitted; internal quotation marks omitted.) Gondek v. Haugwitz-Reventlow, judicial district of Hartford, Docket No. 387870 and 387852 (June 18, 1991, Wagner, J.) (4 Conn. L. Rptr. 243, 244). Circumstantial defects and errors in service are not fatal when the defendant receives actual notice. See Bonito v. Bernardo, Superior Court, judicial district of New Haven, Docket No. NH8810-20076 (December 1, 1988, Hodgson, J.) (4 C.S.C.R. 187) (sheriff acted properly by delivering process to defendant's neighbor, who deposited it in defendant's mail slot so that defendant received actual notice).
The defendant has not met his burden of refuting the evidence of the marshal's return and, therefore, the defendant's motion to dismiss on the ground he did not receive proper abode service is denied.
C
Lastly, the defendant argues that he was served with the amended process on December 23, 2005. He argues that this day is the day service was effectuated because that is the date on the fax cover sheet, and, because this day was only eleven days before the return date of January 3, 2006, he was not served in compliance with General Statutes § 52-46. This argument assumes the court found that the faxed copy of the summons and complaint proper. The plaintiff argues the defendant was served on December 22, 2005, and, therefore, § 52-46 was not violated.
The defendant does not disagree that December 22, 2005, is a proper service date; only that he was not served until the next day.
General Statutes § 52-46 provides in relevant part: "Civil process . . . if returnable to the Superior Court, [shall be served] at least twelve days, inclusive, before [the day of the sitting of the court]." "All process must be served at least twelve days before the return date, including the day of service and excluding the return day." Hibner v. Bruening, 78 Conn.App. 456, 458, 828 A.2d 150 (2003).
The amended return day, which is not counted for purposes of § 52-46, is January 3, 2006. Twelve days from December 22, 2005, the day service was effectuated according to the marshal's amended return, was January 2, 2006. Therefore, service was proper pursuant to § 52-46 because process was served at least twelve days before the amended return date. The defendant's motion to dismiss on the ground that he was not served twelve days before the return date is denied.
Based upon the foregoing the defendant's motion to dismiss is denied.