Dorry v. Garden ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
KAREN DORRY, ADMINISTRATRIX (ESTATE OF
JEROME DORRY), ET AL. v. MITCHELL
S. GARDEN ET AL.
(SC 19191)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.
Argued April 24—officially released September 9, 2014
Vincent M. DeAngelo, with whom was Robert V. Fal-
larino, pro hac vice, for the appellants (plaintiffs).
Michael R. McPherson, with whom, on the brief, was
Edward W. Mayer, Jr., for the appellee (named
defendant).
Diana M. Carlino and James B. Rosenblum filed a
brief for the appellees (defendant Stella Danica-Aaboe
et al.).
Lorinda S. Coon and Paul T. Nowosadko filed a brief
for the appellee (defendant Jeffrey R. Sanderson).
Laura Pascale Zaino and Timothy J. Grady filed a
brief for the appellee (defendant Peter H. Wilson).
Opinion
EVELEIGH, J. In this wrongful death action, the plain-
tiff Karen Dorry, administratrix of the estate of Jerome
Dorry (decedent),1 appeals2 from the judgment of the
trial court dismissing the action against the defendants
Mitchell S. Garden, Peter H. Wilson, Jeffrey R. Sand-
erson, Stella Danica-Aaboe, and Jennifer Carroll.3 In
dismissing the plaintiff’s complaint, the trial court con-
cluded that the present action had not been brought
within two years of the death of the plaintiff’s decedent,4
as required by General Statutes § 52-555,5 and that the
accidental failure of suit statute, General Statutes § 52-
592,6 did not operate to save the plaintiff’s action. The
plaintiff claims that the trial court improperly deter-
mined that § 52-592 did not save the action. We agree
with the plaintiff and, accordingly, reverse the judgment
of the trial court.
The plaintiff’s decedent received medical care and
treatment from the defendants and, thereafter, died on
August 15, 2007. Prior to August 15, 2009, the plaintiff
obtained a ninety day extension of time to file suit
pursuant to General Statutes § 52-190a (b), thereby
extending the statute of limitations contained in § 52-
555 until November 13, 2009. See footnote 4 of this
opinion.
On November 9, 2009, the plaintiff sent a writ, sum-
mons and complaint to a marshal by overnight delivery
and requested that the defendants be served in hand.
The marshal attempted to serve the defendants on
November 12, 2009, by leaving copies of the writ, sum-
mons and complaint in various professional or hospital
offices. The marshal erroneously indicated on the
return that each defendant was served ‘‘in hand’’ on
that date. On April 29, 2011, the trial court dismissed
the claims against the defendants for improper service.
In December, 2011, the plaintiff commenced the pres-
ent action pursuant to § 52-592. The plaintiff filed the
writ, summons and complaint on January 9, 2012. There-
after, all of the defendants filed motions for summary
judgment or, in the alternative, dismissal, on the basis
of the two year statute of limitations contained in § 52-
555. The trial court granted the defendants’ motions
and dismissed the action on the ground that, although
the present action was commenced within one year of
the dismissal of the first action, because the defendants
were not properly served within the statute of limita-
tions, the trial court was without jurisdiction to hear
the case.7 In doing so, the trial court determined that
§ 52-592 did not apply to save the plaintiff’s action
because the first action was not ‘‘commenced’’ for pur-
poses of that statute. This appeal followed. Additional
facts will be set forth as necessary.
As a preliminary matter, we set forth the applicable
standard of review. ‘‘The standard of review for a court’s
decision on a motion to dismiss [under 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, constru-
ing 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.’’ (Citations omitted; internal quota-
tion marks omitted.) Dayner v. Archdiocese of Hart-
ford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).
‘‘Trial courts addressing motions to dismiss for lack
of subject matter jurisdiction pursuant to § 10-31 (a)
(1) may encounter different situations, depending on
the status of the record in the case. As summarized by
a federal court discussing motions brought pursuant to
the analogous federal rule, ‘[l]ack of subject matter
jurisdiction may be found in any one of three instances:
(1) the complaint alone; (2) the complaint supple-
mented by undisputed facts evidenced in the record;
or (3) the complaint supplemented by undisputed facts
plus the court’s resolution of disputed facts.’ Ramming
v. United States, 281 F.3d 158, 161 (5th Cir.2001). Differ-
ent rules and procedures will apply, depending on the
state of the record at the time the motion is filed.
‘‘When a trial court decides a jurisdictional question
raised by a pretrial motion to dismiss on the basis of
the complaint alone, ‘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 necessar-
ily implied from the allegations, construing them in a
manner most favorable to the pleader.’ . . . Filippi v.
Sullivan, [273 Conn. 1, 8, 866 A.2d 599 (2005)]; see also
Shay v. Rossi, 253 Conn. 134, 140, 749 A.2d 1147 (2000),
overruled in part by Miller v. Egan, 265 Conn. 301, 325,
828 A.2d 549 (2003); see, e.g., Federal Deposit Ins. Corp.
v. Peabody, N.E., Inc., [239 Conn. 93, 99–100, 680 A.2d
1321 (1996)] (deciding jurisdictional question on plead-
ings alone).
‘‘In contrast, if the complaint is supplemented by
undisputed facts established by affidavits submitted in
support of the motion to dismiss; Practice Book § 10-
31 (a); other types of undisputed evidence; see, e.g.,
Kozlowski v. Commissioner of Transportation, [274
Conn. 497, 504 n.7, 876 A.2d 1148 (2005)] (photographs
and deposition testimony); Ferreira v. Pringle, 255
Conn. 330, 336, 766 A.2d 400 (2001) (lease agreement);
Shay v. Rossi, supra, 253 Conn. 139 n.7 (official records
of department of children and families); and/or public
records of which judicial notice may be taken; Cox v.
Aiken, [278 Conn. 211, 217, 897 A.2d 71 (2006)] (state
employees’ collective bargaining agreement); the trial
court, in determining the jurisdictional issue, may con-
sider these supplementary undisputed facts ‘and need
not conclusively presume the validity of the allegations
of the complaint.’ Shay v. Rossi, supra, 140. Rather,
those allegations are ‘tempered by the light shed on
them by the [supplementary undisputed facts].’ Id., 141;
see also Barde v. Board of Trustees, 207 Conn. 59, 62,
539 A.2d 1000 (1988). If affidavits and/or other evidence
submitted in support of a defendant’s motion to dismiss
conclusively establish that jurisdiction is lacking, and
the plaintiff fails to undermine this conclusion with
counteraffidavits; see Practice Book § 10-31 (b); or
other evidence, the trial court may dismiss the action
without further proceedings. See, e.g., Ferreira v. Prin-
gle, supra, 344–45; Amore v. Frankel, 228 Conn. 358, 364,
367–69, 636 A.2d 786 (1994). If, however, the defendant
submits either no proof to rebut the plaintiff’s jurisdic-
tional allegations; Connecticut Hospital Assn. v. Pogue,
870 F. Sup. 444, 447 (D. Conn. 1994); or only evidence
that fails to call those allegations into question; Ostow &
Jacobs, Inc. v. Morgan-Jones, Inc., 189 F. Sup. 697, 698
(S.D.N.Y. 1960); the plaintiff need not supply counteraf-
fidavits or other evidence to support the complaint, but
may rest on the jurisdictional allegations therein. See id.
‘‘Finally, where a jurisdictional determination is
dependent on the resolution of a critical factual dispute,
it cannot be decided on a motion to dismiss in the
absence of an evidentiary hearing to establish jurisdic-
tional facts. Gordon v. H.N.S. Management Co., 272
Conn. 81, 92, 861 A.2d 1160 (2004) (‘[w]hen 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 wit-
nesses’ . . .); Schaghticoke Tribal Nation v. Harrison,
264 Conn. 829, 833, 826 A.2d 1102 (2003) (same). Like-
wise, if the question of jurisdiction is intertwined with
the merits of the case, a court cannot resolve the juris-
dictional question without a hearing to evaluate those
merits. Lampasona v. Jacobs, 209 Conn. 724, 728, 553
A.2d 175 (‘[i]n some cases . . . it is necessary to exam-
ine the facts of the case to determine whether it is
within a general class that the court has power to hear’),
cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed.
2d 590 (1989). An evidentiary hearing is necessary
because ‘a court cannot make a critical factual [jurisdic-
tional] finding based on memoranda and documents
submitted by the parties.’ Coughlin v. Waterbury, 61
Conn. App. 310, 315, 763 A.2d 1058 (2001).’’ (Emphasis
omitted; footnotes omitted.) Conboy v. State, 292 Conn.
642, 650–54, 974 A.2d 669 (2009).
On appeal, the plaintiff asserts that the trial court
improperly determined that § 52-592 did not operate to
save the present action because it had not ‘‘commenced
within the time limited by law’’ due to improper service.
Specifically, the plaintiff claims that, under Rocco v.
Garrison, 268 Conn. 541, 550, 848 A.2d 352 (2004), the
first action was ‘‘commenced within the time limited
by law’’ because each of the defendants had effective
notice within the statute of limitations. In response, the
defendants claim that the trial court properly deter-
mined that § 52-592 did not operate to save the present
action because it had not been ‘‘commenced within the
time limited by law . . . .’’ Specifically, the defendants
assert that Rocco does not apply to the facts of the
present case. We agree with the plaintiff.8
The resolution of the plaintiff’s claim requires us to
interpret the phrase ‘‘commenced within the time lim-
ited by law’’ contained in § 52-592 (a). ‘‘The proper
interpretation of § 52-592 (a) is a ‘question of statutory
construction over which our review is plenary. . . .
That review is guided by well established principles of
statutory interpretation . . . . As with all issues of
statutory interpretation, we look first to the language
of the statute.’ . . . State v. Ledbetter, 263 Conn. 1, 12,
818 A.2d 1 (2003). ‘In construing a statute, common
sense must be used and courts must assume that a
reasonable and rational result was intended.’ . . .
Nickel Mine Brook Associates v. Joseph E. Sakal, P.C.,
217 Conn. 361, 370–71, 585 A.2d 1210 (1991). Further-
more, ‘[i]t is a basic tenet of statutory construction that
the legislature [does] not intend to enact meaningless
provisions. . . . [I]n construing statutes, we presume
that there is a purpose behind every sentence, clause,
or phrase used in an act and that no part of a statute
is superfluous.’ . . . Kuehl v. Z-Loda Systems Engi-
neering, Inc., 265 Conn. 525, 536–37, 829 A.2d 818
(2003).’’ Rocco v. Garrison, supra, 268 Conn. 550.
Section 52-592 (a) provides in relevant part: ‘‘If any
action, commenced within the time limited by law, has
failed one or more times to be tried on its merits because
of insufficient service or return of the writ due to
unavoidable accident or the default or neglect of the
officer to whom it was committed, or because the action
has been dismissed for want of jurisdiction, or the
action has been otherwise avoided or defeated by the
death of a party or for any matter of form . . . the
plaintiff . . . may commence a new action . . . for
the same cause at any time within one year after the
determination of the original action or after the reversal
of the judgment.’’
In interpreting the language of § 52-592 (a), however,
we do not write on a clean slate, but are bound by our
previous judicial interpretations of the language and
the purpose of the statute. See New England Road, Inc.
v. Planning & Zoning Commission, 308 Conn. 180,
186, 61 A.3d 505 (2013). In Rocco v. Garrison, supra,
268 Conn. 550–51, this court addressed precisely the
issue presented in the present case, namely, the mean-
ing of the phrase ‘‘commenced within the time limited
by law’’ contained in § 52-592.
In Rocco, the plaintiffs initiated an action against the
defendant, who was a resident of Pennsylvania, in fed-
eral court by filing a complaint with the clerk of the
United States District Court for the District of Connecti-
cut. Id., 544. The plaintiffs alleged that they suffered
serious injuries and emotional distress as a result of a
motor vehicle collision that took place on July 18, 1998.
Id. After the plaintiffs filed their complaint, the clerk of
the federal court returned the summons to the plaintiffs’
counsel for service upon the defendant. Id., 545. The
plaintiffs counsel then ‘‘sent to the defendant’s home
address by certified mail, each of the items required
under rule 4 (d) (2) [of the Federal Rules of Civil Proce-
dure], including the summons and complaint, two cop-
ies of a notice and request for waiver of formal service
and an envelope with sufficient postage for return of
the signed waiver.’’ Id., 546.
The plaintiffs’ counsel then received a return receipt
from the United States Postal Service indicating that
the items had been delivered on July 14, 2000, four
days before the expiration of the two year statute of
limitations. Id. The defendant did not sign and return
the waiver of service form as requested. Id. Thereafter,
the statute of limitations lapsed before the plaintiffs’
counsel could effect formal service of process. Id. As
a result, the plaintiffs’ first action was dismissed. Id.
Within one year of the dismissal of the first action,
the plaintiffs commenced a second action in Superior
Court pursuant to the savings statute. Id. The plaintiffs
served the defendant with a writ, summons and com-
plaint as authorized under Connecticut law. Id., 546–47.
The defendant moved for summary judgment, claiming
that § 52-592 did not save the second action ‘‘on the
ground that the plaintiffs’ first action had not been
commenced within the meaning of the savings statute
due to a lack of proper service and that that statute,
therefore, was inapplicable and could not save the plain-
tiffs’ second action.’’ Id., 547.
On appeal to this court, the plaintiffs in Rocco claimed
that ‘‘their original action was commenced in a timely
manner for purposes of the savings statute when the
defendant received clear and unmistakable notice of
that action upon delivery of the summons, complaint
and related materials pursuant to rule 4 (d) (2). The
defendant disagree[d], arguing that the commencement
of an action under Connecticut law occurs when the
writ is served upon the defendant, and that an action
is not commenced if the defendant is not served prop-
erly.’’ (Emphasis in original.) Id., 547–48.
This court rejected the defendant’s claim, reasoning
that ‘‘[t]he defendant’s interpretation of § 52-592 would
render a key portion of that statute meaningless. If the
savings statute requires effective commencement of the
original action, and commencement requires valid ser-
vice of process, as the defendant argues, then any failure
of service of process would require us to conclude that
no action had been commenced and that the statute
does not apply. This would render superfluous one of
the principal purposes of the savings statute, namely,
to save those actions that have failed due to insufficient
service of process. Moreover, the language of § 52-592
distinguishes between the commencement of an action
and insufficient service of process by providing that the
action may fail following its commencement because of
insufficient service. To accept the view that improper
or insufficient service defeats such an action would
undermine the statute’s clear and unambiguous mean-
ing and preclude the filing of a second action. We there-
fore conclude that the term ‘commenced,’ as used in
§ 52-592 to describe an initial action that ‘has failed
. . . to be tried on its merits because of insufficient
service’; General Statutes § 52-592 (a); cannot be con-
strued to mean good, complete and sufficient service
of process, as the defendant contends.’’ (Emphasis
altered.) Rocco v. Garrison, supra, 268 Conn. 550–51.
This court then went on to explain that ‘‘[a]lthough,
in the present case, service of process in the original
action was insufficient to meet the requirements of the
applicable statute of limitations . . . our decision
today does not offend the general purpose of statutes
of limitations because we agree with the plaintiffs that
the original action was ‘commenced’ within the meaning
of the savings statute when the defendant received
effective notice of that action within the time period
prescribed . . . .’’ Id., 551. This court ultimately con-
cluded as follows: ‘‘That the defendant failed to sign
and return the waiver does not detract from the fact
that the plaintiffs’ original action was ‘commenced,’ for
purposes of the savings statute, when the defendant
received actual notice of the action within the time
period prescribed by the statute of limitations. Thus,
in our view, although the original action was not com-
menced in a timely manner under the applicable statute
of limitations due to insufficient service of process, it
nevertheless was commenced for purposes of the sav-
ings statute.’’ Id., 552–53.
As the foregoing demonstrates, in Rocco, this court
recognized that the phrase ‘‘commenced within the time
limited by law’’ cannot mean effectuating proper ser-
vice, and that effective notice to a defendant is suffi-
cient. Id., 551. In the present case, it is undisputed
that the plaintiff’s counsel sent the writ, summons and
complaint to a marshal on November 9, 2009, by over-
night delivery and requested that the marshal effect in
hand service on the defendants. The evidence further
demonstrates that, despite indicating on the return of
service that she effected in hand service, the marshal
actually left copies of the writ, summons and complaint
at the business addresses of the defendants. Neverthe-
less, the plaintiff produced evidence demonstrating that
Sanderson and Danica-Aaboe became aware of the first
action and received a copy of the writ, summons and
complaint on November 13, 2009, which was within the
statute of limitations. Specifically, as to Sanderson, the
trial court found that the marshal delivered a copy of
the writ, summons and complaint to his business office
and left it with the office manager. In her objection to
the defendants’ motions to dismiss, the plaintiff
attached the deposition transcripts from Sanderson and
the office manager in which they testified that the office
manager left the copy of the writ, summons and com-
plaint on Sanderson’s desk on November 12, 2009, and
that Sanderson saw these documents on November 13,
2009. The trial court also found that the marshal left a
copy of the writ, summons and complaint for Danica-
Aaboe with an employee at her place of business. In
her objection to the defendants’ motions to dismiss, the
plaintiff attached the deposition transcript of Danica-
Aaboe in which she testified that she received a copy
of the writ, summons and complaint on November 13,
2009. As we explained in Conboy v. State, supra, 292
Conn. 676, ‘‘the trial court, in determining the jurisdic-
tional issue, may consider these supplementary undis-
puted facts.’’ In the present case, viewing the foregoing
undisputed facts, we conclude that the first action was
commenced against Sanderson and Danica-Aaboe when
they had effective notice within the time period pre-
scribed by the statute of limitations.
The defendants disagree and assert that Rocco must
be confined to the unique facts of that case and that
this court’s holding in Rocco was based on the fact that
the plaintiffs had followed the federal service rules,
not that the defendant had effective notice within the
statute of limitations. We disagree. As explained pre-
viously herein, in Rocco, this court explicitly explained
that the ‘‘plaintiffs’ original action was ‘commenced,’
for purposes of the savings statute, when the defendant
received actual notice of the action within the time
period prescribed by the statute of limitations.’’ Rocco
v. Garrison, supra, 268 Conn. 552. Furthermore, as this
court recognized in Rocco, the savings statute is reme-
dial in nature. Bearing in mind that remedial statutes
‘‘must be afforded a liberal construction in favor of
those whom the legislature intended to benefit’’; (inter-
nal quotation marks omitted) Harbour Pointe, LLC v.
Harbour Landing Condominium Assn., Inc., 300 Conn.
254, 283, 14 A.3d 284 (2010); we reject the defendants’
invitation to so limit the savings statute and this court’s
well reasoned and explicit interpretation of it in Rocco.
Accordingly, because Sanderson and Danica-Aaboe
received effective notice within the statute of limita-
tions, we conclude that the trial court improperly deter-
mined that the savings statute did not save the plaintiff’s
second action against those defendants.
Having concluded that this court’s holding in Rocco
applies to save the plaintiff’s claims against Sanderson
and Danica-Aaboe because they had actual notice
within the statute of limitations, we must now turn to
the plaintiff’s claim that the savings statute should also
apply to save her claims against Garden, Wilson and
Carroll because they had actual notice within the thirty
days that is allowed to a marshal to serve process under
General Statutes § 52-593a.
Resolving the plaintiff’s claim requires us to construe
whether the additional thirty days for a marshal to serve
process under § 52-593a is part of the ‘‘time limited by
law’’ contained in § 52-592 (a), the savings statute. As
we explained previously herein, interpreting the rela-
tionship between statutes is a ‘‘question of statutory
construction over which our review is plenary. . . .
That review is guided by well established principles of
statutory interpretation . . . . As with all issues of
statutory interpretation, we look first to the language
of the statute. . . . In construing a statute, common
sense must be used and courts must assume that a
reasonable and rational result was intended. . . . Fur-
thermore, [i]t is a basic tenet of statutory construction
that the legislature [does] not intend to enact meaning-
less provisions. . . . [I]n construing statutes, we pre-
sume that there is a purpose behind every sentence,
clause, or phrase used in an act and that no part of a
statute is superfluous.’’ Rocco v. Garrison, supra, 268
Conn. 550.
Furthermore, ‘‘we must, if possible, construe two
statutes in a manner that gives effect to both, eschewing
an interpretation that would render either ineffective.
In construing two seemingly conflicting statutes, we
are guided by the principle that the legislature is always
presumed to have created a harmonious and consistent
body of law . . . . State v. Ledbetter, [supra, 240 Conn.
336]. . . . Accordingly, [i]f two statutes appear to be
in conflict but can be construed as consistent with each
other, then the court should give effect to both. . . .
Wilson v. Cohen, 222 Conn. 591, 598, 610 A.2d 1117
(1992); see Hirschfeld v. Commission on Claims, 172
Conn. 603, 607, 376 A.2d 71 (1977). If a court can by
any fair interpretation find a reasonable field of opera-
tion for two allegedly inconsistent statutes, without
destroying or preventing their evident meaning and
intent, it is the duty of the court to do so. Knights of
Columbus Council [No. 3884] v. Mulcahy, 154 Conn.
583, 590, 227 A.2d 413 (1967); Shanley v. Jankura, 144
Conn. 694, 702, 137 A.2d 536 (1957). Windham First
Taxing District v. Windham, 208 Conn. 543, 553, 546
A.2d 226 (1988). Therefore, [w]e must, if possible, read
the two statutes together and construe each to leave
room for the meaningful operation of the other. State
v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984). In
addition, [i]f two constructions of a statute are possible,
we will adopt the one that makes the statute effective
and workable . . . . State v. Scott, 256 Conn. 517, 538,
779 A.2d 702 (2001). . . . Nizzardo v. State Traffic
Commission, 259 Conn. 131, 156–57, 788 A.2d 1159
(2002).’’ (Internal quotation marks omitted.) Rainforest
´
Cafe, Inc., v. Dept. of Revenue Services, 293 Conn. 363,
377–78, 977 A.2d 650 (2009).
As we have previously explained herein, the savings
statute allows for an action to be saved if it was com-
menced within the time limited by law, even if improper
service was made within that time, if the defendant had
effective notice during that time period. Section 52-593a
allows a marshal to effectuate service within thirty days
of receiving the writ, summons and complaint, even if
that service falls beyond the statute of limitations. The
plaintiff’s current claim requires us to determine
whether this thirty day provision applies to claims saved
by operation of the savings statute. The plaintiff claims
that if a defendant receives effective notice during the
thirty day period for marshals to effectuate service, the
case should be considered effectively commenced for
purposes of the savings statute. The defendants assert,
to the contrary, that the thirty day period allowed for
a marshal to effectuate service has no effect on whether
a claim is saved by the savings statute. The interpreta-
tion of the statutes urged by the defendants makes
the provisions of § 52-593a ineffective. To the contrary,
reading these two remedial statutes together so as to
give effect to both, requires us to conclude that the
thirty day time period for a marshal to effectuate service
must be included within the ‘‘time limited by law’’ for
purposes of the savings statute. Therefore, if a defen-
dant has effective notice within the thirty day period
allowed for a marshal to make service of the writ, sum-
mons and complaint, the action will be considered com-
menced for purposes of the savings statute.
Section 52-593a (a) provides in relevant part: ‘‘[A]
cause or right of action shall not be lost because of the
passage of the time limited by law within which the
action may be brought, if the process to be served is
personally delivered to a state marshal, constable or
other proper officer within such time and the process
is served, as provided by law, within thirty days of
the delivery.’’
This court has previously determined that ‘‘[§] 52-
593a is a remedial provision that allows the salvage of
an [action] that otherwise may be lost due to the passage
of time.’’ Nine State Street, LLC v. Planning & Zoning
Commission, 270 Conn. 42, 55, 850 A.2d 1032 (2004).
As we explained previously herein, remedial statutes
‘‘must be afforded a liberal construction in favor of
those whom the legislature intended to benefit.’’ (Inter-
nal quotation marks omitted.) Harbour Pointe, LLC v.
Harbour Landing Condominium Assn., Inc., supra,
300 Conn. 283.
Because both the savings statute and § 52-593a are
remedial provisions that must be afforded liberal con-
structions, we see no reason why the time period pro-
vided in § 52-593a for a marshal to make service is not
implicitly included in the ‘‘time period limited by law’’
in the savings statute. Accordingly, we conclude that,
applying the principles of Rocco, if a defendant has
actual notice within the thirty days in § 52-593a for
a marshal to make service, the savings statute would
operate to save the claim.
In the present case, the trial court also found that
the marshal left a copy of the writ, summons and com-
plaint for Carroll at her business address. In her opposi-
tion to the defendants’ motions to dismiss, the plaintiff
attached the deposition testimony of Carroll, who testi-
fied that she received a copy of the writ, summons and
complaint on November 17, 2009.
The trial court also found that the marshal left a copy
of the writ, summons and complaint for Garden at his
business address with an employee of another entity.
In her opposition to the defendants’ motions to dismiss,
the plaintiff attached the deposition testimony of Gar-
den, who testified that he received a copy of the writ,
summons and complaint sometime between November
16, 2009, and November 20, 2009. Accordingly, we con-
clude that the undisputed facts established that Carroll
and Garden received actual notice of the action within
the thirty days for service by the marshal.
The trial court found that the marshal delivered a
copy of the writ, summons and complaint for Wilson
with a risk management employee of New Milford Hos-
pital on November 12, 2009. In her opposition to the
defendants’ motions for summary judgment or in the
alternative dismissal, the plaintiff attached the deposi-
tion testimony of Wilson in which he testified that the
risk management employee called him and notified him
that a writ, summons and complaint were delivered
for him and that he received them several days later.
Although Wilson was not able to testify as to the exact
date he received the telephone call from the risk man-
agement employee, as we recognized in Conboy v. State,
supra, 292 Conn. 677, ‘‘where a jurisdictional determina-
tion is dependent on the resolution of a critical factual
dispute, it cannot be decided on a motion to dismiss
in the absence of an evidentiary hearing to establish
jurisdictional facts.’’
On the basis of the foregoing, because it is clear that
Sanderson, Danica-Aaboe, Garden, and Carroll received
effective notice within the time period limited by law,
including the thirty days for service by the marshal
provided by § 52-593a, we conclude that the trial court
improperly determined that the savings statute did not
operate to save the plaintiff’s second action against
those four defendants. With regard to Wilson, we con-
clude that there is a critical factual dispute, which can-
not be resolved in the absence of an evidentiary hearing.
Therefore, we conclude that the trial court improperly
dismissed the plaintiff’s second action against Wilson.
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other justices concurred.
1
Karen Dorry is the surviving spouse of the decedent and brought the
present action individually and in her capacity as administratrix of the
decedent’s estate. We hereinafter refer to Karen Dorry, in both of these
capacities, as the plaintiff.
2
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
3
Although Litchfield County Orthopedic & Spine, P.C., was also named
as a defendant in the present case, it is not a party to this appeal. Hereinafter,
we refer to Garden, Wilson, Sanderson, Danica-Aaboe, and Carroll collec-
tively as the defendants, and individually by name.
4
The parties do not dispute that the plaintiff properly obtained a ninety
day extension of time pursuant to General Statutes § 52-190a (b) within
which to commence her action. Therefore, pursuant to the extension, the
statute of limitations for the action would have expired on November 13,
2009. See footnote 5 of this opinion.
5
General Statutes § 52-555 provides: ‘‘(a) In any action surviving to or
brought by an executor or administrator for injuries resulting in death,
whether instantaneous or otherwise, such executor or administrator may
recover from the party legally at fault for such injuries just damages together
with the cost of reasonably necessary medical, hospital and nursing services,
and including funeral expenses, provided no action shall be brought to
recover such damages and disbursements but within two years from the
date of death, and except that no such action may be brought more than
five years from the date of the act or omission complained of.
‘‘(b) Notwithstanding the provisions of subsection (a) of this section, an
action may be brought under this section at any time after the date of the
act or omission complained of if the party legally at fault for such injuries
resulting in death has been convicted or found not guilty by reason of mental
disease or defect of a violation of section 53a-54a, 53a-54b, 53a-54c, 53a-
54d, 53a-55 or 53a-55a with respect to such death.’’
6
General Statutes § 52-592 provides in relevant part: ‘‘(a) If any action,
commenced within the time limited by law, has failed one or more times
to be tried on its merits because of insufficient service or return of the writ
due to unavoidable accident or the default or neglect of the officer to whom
it was committed, or because the action has been dismissed for want of
jurisdiction, or the action has been otherwise avoided or defeated by the
death of a party or for any matter of form . . . the plaintiff . . . may com-
mence a new action . . . for the same cause at any time within one year after
the determination of the original action or after the reversal of the judgment.
***
‘‘(d) The provisions of this section shall apply to any defendant who files
a cross complaint in any action, and to any action between the same parties
or the legal representatives of either of them for the same cause of action
or subject of action brought to any court in this state, either before dismissal
of the original action and its affirmance or within one year after the dismissal
and affirmance, and to any action brought to the United States circuit or
district court for the district of Connecticut which has been dismissed
without trial upon its merits or because of lack of jurisdiction in such court.
If such action is within the jurisdiction of any state court, the time for
bringing the action to the state court shall commence from the date of
dismissal in the United States court, or, if an appeal or writ of error has
been taken from the dismissal, from the final determination of the appeal
or writ of error. . . .’’
7
Although the defendants filed motions for summary judgment or, in
the alternative, dismissal, the trial court ultimately dismissed the plaintiff’s
action for lack of subject matter jurisdiction. Therefore, we analyze the
plaintiff’s claim on appeal under the standard of review for a motion to
dismiss.
8
The defendants also assert that the trial court properly applied Davis
v. Family Dollar Store, 78 Conn. App. 235, 826 A.2d 262 (2003), appeal
dismissed, 271 Conn. 655, 859 A.2d 25 (2004) (per curiam). We disagree and
find Davis inapplicable. In Davis, there was no claim that the defendant
had effective notice of the claim against it during the time limited by law.
Id., 236–38. Moreover, because this court decided Rocco v. Garrison, supra,
268 Conn. 550, after the Appellate Court’s decision in Davis, and because
the facts in Rocco are more similar to the facts of the present case, we
conclude that Rocco is the appropriate framework for analyzing the plaintiff’s
claim in the present case.