Prenderville v. Sinclair , 164 Conn. App. 439 ( 2016 )

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CHARLES PRENDERVILLE, ADMINISTRATOR
(ESTATE OF COREY PRENDERVILLE),
ET AL. v. CHRISTOPHER
SINCLAIR ET AL.
(AC 36931)
DiPentima, C. J., and Mullins and Norcott, Js.
Argued December 7, 2015—officially released April 12, 2016
(Appeal from the Superior Court, judicial district of
Middlesex, Marcus, J.)
Tracey E. Hardman, for the appellants (plaintiffs).
Diana M. Carlino, with whom, on the brief, was
James F. Biondo, for the appellees (defendants).
Opinion
MULLINS, J. The plaintiffs, Charles Prenderville, indi-
vidually and as administrator of the estate of Corey
Prenderville, and Alice Prenderville, appeal from the
judgment of the trial court dismissing their action
against the defendants, Christopher Sinclair, a neurolo-
gist, and River Valley Neurology, LLC. On appeal, the
plaintiffs claim that the court improperly (1) denied
their motion to amend the return date, and (2) granted
the defendants’ motion to dismiss for lack of personal
jurisdiction. We disagree, and, accordingly, affirm the
judgment of the trial court.
The record reveals the following relevant undisputed
facts and procedural history. After the death of their
son, Corey Prenderville, the plaintiffs commenced a
medical malpractice action against the defendants by
service of process on August 29, 2013. The summons
and complaint were dated April 1, 2013, and bore a
return date of May 7, 2013. The plaintiffs returned pro-
cess to court on September 9, 2013.
On November 1, 2013, the defendants moved to dis-
miss the plaintiffs’ action on the following grounds:
(1) the court lacked personal jurisdiction because the
plaintiffs failed to comply with the time limits for ser-
vice and return of process established by General Stat-
utes §§ 52-461 and 52-46a2 when they served process
114 days after the return date and returned process to
court 125 days after the return date; and (2) if the return
date was amended, they would be prejudiced by the
expiration of the statute of limitations,3 which would
prevent them from impleading a third party defendant,
and by the passage of the deadline to file an apportion-
ment complaint.4
On January 17, 2014, the plaintiffs objected to the
motion to dismiss, moved to amend the return date,
and filed a proposed amended summons and complaint
bearing a return date of October 29, 2013. In their
motion to amend, the plaintiffs argued that amendment
of the return date was proper because (1) Connecticut
has a strong preference for curing circumstantial
defects to allow a case to be heard on its merits, which
is embodied in General Statutes § 52-123,5 (2) it was in
accordance with ‘‘the precedent of Coppola v. Coppola
[243 Conn. 657, 665–66, 707 A.2d 281 (1998)],’’ (3) it
would bring process into compliance with General Stat-
utes § 52-48 (b)6 as well as §§ 52-46 and 52-46a, and (4)
any noncompliance with § 52-48 (b) was the result of
‘‘intentional and misleading actions of the defendant
Sinclair,’’ from which the defendants should not be per-
mitted to benefit.
In their objection to the motion to dismiss, the plain-
tiffs conceded noncompliance with §§ 52-46 and 52-
46a but argued that the motion nevertheless should be
denied because (1) the court should permit amendment
of the return date to comply with the applicable stat-
utes, (2) a motion to dismiss is not the proper vehicle
for a statute of limitations defense, (3) even if a motion
to dismiss is a proper vehicle for raising a statute of
limitations defense, in this case, the statute of limita-
tions should be tolled by the doctrines of fraudulent
concealment and equitable estoppel, and (4) ‘‘any late
filing was due to accident, mistake, or inadvertence
based significantly on the defendant Sinclair’s actions
and fraudulent misrepresentations . . . .’’7
On May 16, 2014, the court issued a memorandum of
decision, in which it denied the motion to amend,
granted the motion to dismiss, and rendered a judgment
of dismissal. In particular, the court determined that
the return date could not be amended to comply with
§§ 52-46 and 52-46a without running afoul of § 52-48
(b). The court also determined that § 52-123 was not
the proper vehicle for curing the plaintiffs’ failure to
serve process in accordance with §§ 52-46 and 52-46a.
The court then determined that permitting the amend-
ment of the return date would cause the defendants to
suffer prejudice because the untimeliness of the action
would preclude them from impleading a third party
defendant or serving an apportionment complaint. As a
result, the court held that it lacked personal jurisdiction
over the defendants. This appeal followed.8 Additional
facts will be set forth as necessary.
I
The plaintiffs claim that the court improperly denied
their motion to amend the return date. Their claim is
twofold. First, they argue that the court incorrectly
concluded that amendment of the return date was not
proper pursuant to Coppola and General Statutes § 52-
72.9 Second, they argue that the court improperly failed
to consider that any prejudice the defendants would
have suffered as a result of an amendment of the return
date was a result of their own allegedly fraudulent or
otherwise wrongful conduct. The plaintiffs also
advance a general public policy argument that an
amendment should have been permitted because § 52-
123 embodies a preference for resolving a case on its
merits. For the following reasons, we conclude that the
court properly denied the motion to amend.
We first set forth the standards governing our review
of this claim. In general, ‘‘whether to allow an amend-
ment to the pleadings rests within the discretion of the
trial court.’’ Miller v. Fishman, 102 Conn. App. 286,
291, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905,
942 A.2d 414 (2008). To the extent the plaintiffs chal-
lenge the court’s statutory construction, they present
an issue of law over which our review is plenary. March-
esi v. Board of Selectmen, 309 Conn. 608, 614, 72 A.3d
394 (2013).
At the outset of our discussion, we note that we, like
the trial court, agree with the plaintiffs that § 52-123
embodies a public policy favoring the resolution of a
case on its merits and allowing the amendment of cir-
cumstantial errors. See, e.g., Boyles v. Preston, 68 Conn.
App. 596, 603, 792 A.2d 878 (‘‘It is not the policy of
our courts to interpret rules and statutes in so strict a
manner as to deny a litigant the pursuit of its complaint
for mere circumstantial defects. . . . Indeed, § 52-123
. . . protects against just such consequences, by pro-
viding that no proceeding shall be abated for circum-
stantial errors so long as there is sufficient notice to
the parties.’’ [Internal quotation marks omitted.]), cert.
denied, 261 Conn. 901, 802 A.2d 853 (2002).
Nevertheless, ‘‘[o]ur Supreme Court has repeatedly
held that § 52-123 is used to provide relief from defects
in the text of the writ itself but is not available to cure
irregularities in the service or return of process. [It
never has] held to the contrary. Rogozinski v. American
Food Service Equipment Corp., 211 Conn. 431, 434, 559
A.2d 1110 (1989);10 see also Rocco v. Garrison, 268 Conn.
541, 557, [848] A.2d [352] (2004); Hillman v. Greenwich,
217 Conn. 520, 527, 587 A.2d 99 (1991); Pack v. Burns,
212 Conn. 381, 386, 562 A.2d 24 (1989) . . . .’’ (Citation
omitted; footnotes altered; internal quotation marks
omitted.) Kobyluck v. Planning & Zoning Commis-
sion, 84 Conn. App. 160, 167, 852 A.2d 826, cert. denied,
271 Conn. 923, 859 A.2d 579 (2004).
The plaintiffs’ service of process 114 days after the
return date and their return of process 125 days after
the return date, in violation of §§ 52-46 and 52-46a, are
not defects in the text of the writ itself. Rather, these
defects are irregularities in the service and return of
process. As such, they are not defects from which § 52-
123 can provide the plaintiffs relief. With the stated
policy in mind, however, we proceed to a discussion
of the plaintiffs’ two principal claims with regard to the
denial of their motion to amend.
A
The plaintiffs argue that the court incorrectly con-
cluded that § 52-72 and Coppola did not permit amend-
ment of the return date to a date more than two months
after the date of process. Specifically, they argue that
the court misconstrued ‘‘the date of the process’’ as
used in § 52-48 (b), which limits the time between the
date of the process and the return date to two months.
The plaintiffs argue that ‘‘the date of the process’’ refers
to ‘‘the date process was actually factually served,’’
which was August 29, 2013, not the date reflected on
the writ of summons, which was April 1, 2013. We are
not persuaded.
We acknowledge that § 52-72 mandates that ‘‘any
court shall allow a proper amendment to civil process
which is for any reason defective.’’ General Statutes
§ 52-72 (a); Concept Associates, Ltd. v. Board of Tax
Review, 229 Conn. 618, 626, 642 A.2d 1186 (1994) (§ 52-
72 is mandatory). In Coppola, our Supreme Court deter-
mined that ‘‘[t]he 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.’’ Coppola v. Coppola,
supra, 243 Conn. 665. The court in Coppola concluded
that ‘‘[t]he construction of the term defective [as used
in § 52-72] 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.’’ (Internal quotation marks omitted.) Id.
‘‘[S]uch an interpretation is consistent with our
expressed policy preference to bring about a trial on
the merits of a dispute whenever possible and to secure
for the litigant his day in court.’’ (Internal quotation
marks omitted.) Id. Thus, in adherence to our stated
policy, as the court in Coppola explained, an erroneous
return date is a curable defect.
Notwithstanding the remedial purpose and policy
expressed in § 52-72, however, the court in Coppola
also recognized that for an amendment to be ‘‘proper’’
within the meaning of § 52-72, the amended return date
must comply with § 52-48 (b). ‘‘A return date . . . must
comply with the time limitations set forth in § 52-48
(b). Section 52-48 (b) requires that ‘[a]ll process shall
be made returnable not later than two months after the
date of the process . . . .’ Section 52-48 (b), therefore,
with its two month limit, circumscribes the extent to
which a return date may be amended.’’ Id., 666–67.
As used in § 52-48 (b), ‘‘[t]he ‘date of the process,’ of
course, refers to the date of the writ of summons or
attachment which must be accompanied by the com-
plaint.’’ Haylett v. Commission on Human Rights &
Opportunities, 207 Conn. 547, 554–55, 541 A.2d 494(1988); see also Coppola v. Coppola, supra, 243 Conn.
667 n.12 (noting that amended return date of August
22, 1995, complied with § 52-48 [b] where date of writ
of summons was June 25, 1995); Olympia Mortgage
Corp. v. Klein, 61 Conn. App. 305, 306, 310, 763 A.2d
1055 (2001) (amended return date of May 11, 1999,
complied with § 52-48 [b] where date of writ of sum-
mons was March 12, 1999).
In the present case, the court correctly interpreted
‘‘the date of the process’’ to refer to the date of the writ
of summons, April 1, 2013. Haylett v. Commission on
Human Rights & Opportunities, supra, 207 Conn. 554–
55. Consequently, to be in compliance with § 52-48 (b),
process had to be returnable to court no later than June
1, 2013. The only amended return date proposed by the
plaintiffs was October 29, 2013. This date was not in
compliance with the requisite two month time restric-
tion imposed by § 52-48 (b).
Therefore, the court properly concluded that amend-
ment of the return date to a date that was well beyond
two months from the date of process would not be
proper because such an amendment would violate § 52-
48 (b). Accordingly, the court properly concluded that
the return date could not be amended pursuant to § 52-
72. See Ribeiro v. Fasano, Ippolito & Lee, P.C., 157
Conn. App. 617, 631, 117 A.3d 965 (2015) (affirming
dismissal of plaintiff’s action where ‘‘there is no date
to which [the trial court] could permit the plaintiff to
amend the return date and remain in compliance with
the mandatory requirements of both § 52-48 (b) and
§ 52-46a’’).11
B
The plaintiffs also argue that the court should have
considered that any prejudice the defendants would
have suffered as a result of an amendment of the return
date was a result of their own allegedly fraudulent or
otherwise wrongful conduct. We conclude that this
issue is moot.
‘‘[I]t is not the province of appellate courts to decide
moot questions, disconnected from the granting of
actual relief or from the determination of which no
practical relief can follow. . . . In determining moot-
ness, the dispositive question is whether a successful
appeal would benefit the plaintiff or defendant in any
way. . . . Mootness implicates this court’s subject
matter jurisdiction, raising a question of law over which
we exercise plenary review.’’ (Citation omitted; empha-
sis omitted; internal quotation marks omitted.) Brody
v. Brody, 145 Conn. App. 654, 666–67, 77 A.3d 156 (2013).
Here, the plaintiffs failed to comply with §§ 52-46 and
52-46a, and their proposed amended return date could
not bring their process into compliance with those two
statutes and § 52-48 (b). Thus, because the plaintiffs’
only proposed amended return date ran afoul of these
statutory restrictions and there was no proposed date
that would comply with these statutes, the inquiry into
whether amendment is proper under § 52-72 is at an
end. See Ribeiro v. Fasano, Ippolito & Lee, P.C., supra,
157 Conn. App. 631 (determining that trial court cor-
rectly concluded that no amended return date would
comply with mandatory requirements of both §§ 52-46a
and 52-48 [b] and affirming dismissal without consider-
ing prejudice).
We acknowledge that the trial court determined that
the defendants would suffer prejudice if the return date
was amended because they would be precluded from
impleading a third party defendant or serving an appor-
tionment complaint. That determination was extrane-
ous, however, in light of the court’s conclusion that the
return date could not be amended to comply with the
applicable statutes.
Indeed, because, under the circumstances of this
case, the court’s conclusion that the defendants would
suffer prejudice was unnecessary to its determination
that the return date could not be amended, any consid-
eration of the propriety of the court’s ruling on prejudice
would serve no purpose on appeal. Stated differently,
no practical relief would follow from a determination
that the defendants suffered no prejudice, given that
the plaintiffs did not comply with the statutes pertaining
to service and return of process. Accordingly, because
our resolution of this issue in the plaintiffs’ favor would
not benefit them in any way, the issue is moot. Brody
v. Brody, supra, 145 Conn. App. 667.
In sum, we conclude that the court properly deter-
mined that the requested amendment was not proper
pursuant to § 52-72 because the amended return date
would not comply with § 52-48 (b).
II
Having concluded that the court properly disallowed
amendment of the return date, we turn to the plaintiffs’
claim that the court improperly granted the defendants’
motion to dismiss. The plaintiffs rest this claim on three
arguments: (1) the court incorrectly determined that
noncompliance with §§ 52-46 and 52-46a deprived it of
personal jurisdiction; (2) their good faith attempts at
timely service of process, coupled with the defendants’
attempts to evade service, conferred personal jurisdic-
tion on the court; and (3) the court failed to consider
their arguments that the untimely service was caused
by the defendants’ fraudulent concealment or other
wrongdoing, or that the defendants should be equitably
estopped from asserting the statute of limitations. We
do not agree.
‘‘A motion to dismiss tests, inter alia, whether, on
the face of the record, the court is without jurisdiction.
. . . The motion to dismiss . . . admits all facts which
are well pleaded, invokes the existing record and must
be decided upon that alone.’’ (Internal quotation marks
omitted.) Cuozzo v. Orange, 315 Conn. 606, 614, 109
A.3d 903 (2015). ‘‘A motion to dismiss . . . essentially
assert[s] that the plaintiff cannot as a matter of law and
fact state a cause of action that should be heard by the
court. . . . [O]ur review of the trial court’s ultimate
legal conclusion and resulting [denial] of the motion to
dismiss will be de novo. . . . Factual findings underly-
ing the court’s decision, however, will not be disturbed
unless they are clearly erroneous.’’ (Internal quotation
marks omitted.) Merrill v. NRT New England, Inc.,
126 Conn. App. 314, 318, 12 A.3d 575 (2011), appeal
dismissed, 307 Conn. 638, 59 A.3d 171 (2013) (certifica-
tion improvidently granted).
A
The plaintiffs argue that the court incorrectly deter-
mined that their noncompliance with the applicable
service of process statutes deprived it of personal juris-
diction. We disagree.
‘‘A defect in process . . . implicates personal juris-
diction . . . . [W]hen a particular method of serving
process is set forth by statute, that method must be
followed. . . . Unless service of process is made as
the statute prescribes, the court to which it is returnable
does not acquire [personal] jurisdiction.’’ (Internal quo-
tation marks omitted.) Pedro v. Miller, 281 Conn. 112,
117, 914 A.2d 524 (2007). Both §§ 52-46 and 52-46a are
mandatory, and failure to comply with their require-
ments as to the time when process shall be served and
returned renders the plaintiff’s action vulnerable to a
motion to dismiss for lack of personal jurisdiction.
Daley v. Board of Police Commissioners, 133 Conn.
716, 719, 54 A.2d 501 (1947) (discussing General Stat-
utes [Supp. 1941] § 5462, predecessor to § 52-46); Mer-
rill v. NRT New England, Inc., supra, 126 Conn. App.
320 (discussing § 52-46a).
As discussed in part I A of this opinion, the court
properly determined that it could not permit amend-
ment of the plaintiffs’ return date to comply with §§ 52-
46 and 52-46a because the amended return date would
not comply with § 52-48 (b). As a result, process did
not comply with the mandatory requirements of §§ 52-
46 and 52-46a, rendering the plaintiffs’ action vulnerable
to a motion to dismiss for lack of personal jurisdiction.
Accordingly, the court properly granted the defendants’
motion to dismiss on this ground.
B
The plaintiffs argue that the court nevertheless
should have concluded that it had personal jurisdiction
over the defendants because ‘‘[n]otice of a complaint
coupled with good faith attempted service is sufficient
to confer jurisdiction where a party is evading service
of process’’; (internal quotation marks omitted) Bove
v. Bove, 93 Conn. App. 76, 82, 888 A.2d 123, cert. denied,
277 Conn. 919, 895 A.2d 788 (2006); and, in the present
case, the defendants should not have been permitted
to benefit from evading service by improperly dissolving
River Valley Neurology, LLC. The plaintiffs argue that
they ‘‘did rely in good faith on the information provided
by the Secretary of the State that Dr. Sinclair was
located at 557 Saybrook Road, Middletown, CT. . . .
If Dr. Sinclair was no longer available for service at
that address . . . he was required to file a notice of
new address. . . .’’12 His failure to do so, the plaintiffs
argue, caused their initial ineffective service. We
disagree.
In their objection to the motion to dismiss, the plain-
tiffs alleged a course of conduct by the defendants that
they argued was calculated to delay commencement of
the action and thwart service of process—namely, the
defendants took eight months to comply with the plain-
tiffs’ medical records requests13 and, after finally com-
plying, closed their business office without leaving a
forwarding address. In support of these claims, the
plaintiffs submitted numerous exhibits.
In one such exhibit, an affidavit by State Marshal
Louis Aresco of Middlesex county, Aresco avers that
process was placed in his hands on April 2, 2013, and, on
the following day, he attempted service, but ‘‘Sinclair’[s]
offices at River Valley Neurology at 577 Saybrook Rd.
. . . [were] closed with no forwarding address for the
business.’’ In another exhibit, an undated note, Aresco
advises the plaintiffs that ‘‘Dr. Sinclair closed his office
at 577 Saybrook Rd. Mdtn. over 2 years ago. No forward-
ing. . . . I can’t serve in Madison, or Windsor because
. . . service started in Middlesex County.’’
Additionally, the record reveals the following. On
April 2, 2013, the writ of summons that the plaintiffs
gave to Aresco listed 41 Copperfield Drive, Madison,
as Sinclair’s abode address. This same address was
listed with the Secretary of the State as an address
associated with River Valley Neurology, LLC. On August
29, 2013, the plaintiffs effectuated service on the defen-
dants by abode service on Sinclair at 41 Copperfield
Drive, Madison.
‘‘[T]here is no exclusive means for service on a limited
liability company. Although General Statutes § 34-105
(a) provides that process may be served upon the lim-
ited liability company’s statutory agent for service, sub-
section (e) of § 34-105 expressly states that [n]othing
contained in this section shall limit or affect the right
to serve any process, notice or demand required or
permitted by law to be served upon a limited liability
company in any other manner permitted by law.’’ (Inter-
nal quotation marks omitted.) Little v. Mackeyboy Auto,
LLC, 142 Conn. App. 14, 20, 62 A.3d 1164 (2013); see
also id., 19–20 (service proper when made on general
manager, not registered agent). Section 34-105 (d),14 for
example, provides for abode service on any manager
of the limited liability company, the very method of
service used by the plaintiffs in this case on August
29, 2013.
Here, the record belies the plaintiffs’ claim that the
defendants were evading service and demonstrates that
the plaintiffs’ own delay in utilizing available methods of
service caused the noncompliance with the applicable
service statutes, and, accordingly, deprived the court
of personal jurisdiction over the defendants. Indeed, as
an exhibit to their objection to the motion to dismiss,
the plaintiffs submitted printouts from the Secretary
of the State’s website, which show that River Valley
Neurology, LLC, was dissolved on April 8, 2013. On both
printouts, which are dated before and after the date of
dissolution, Sinclair is listed both as the agent for ser-
vice and the principal of River Valley Neurology, LLC.
As principal, his residence address is listed as 41 Cop-
perfield Drive, Madison. As agent, his residence address
is listed as 410 Lantern Way, Windsor. His business
address in both capacities is listed as 577 Saybrook
Road, Middletown.
Accordingly, when the plaintiffs failed to serve Sin-
clair as agent for service at his business address, they
had both the necessary information and the statutory
authorization to effectuate timely abode service.
The plaintiffs make much of the fact that service
could not be effectuated at the Saybrook Road address
and point to Aresco’s note as proof that the defendants
were evading service by closing the office there.
Aresco’s advice in the note that he ‘‘can’t serve in Madi-
son, or Windsor,’’ however, indicates, like the summons
does, that the Copperfield Drive address was available
to the plaintiffs at least since April 1, 2013. The plaintiffs’
demonstrated knowledge of the address at which they
eventually served the defendants and the absence of
any documented hurdles to effectuating timely service
at this address do not lead us to conclude that the
trial court should have found that the defendants were
attempting to evade service.
The plaintiffs argue that the defendants’ procedurally
improper dissolution of River Valley Neurology, LLC,
was such a hurdle to timely service of process. We are
not persuaded.
Although the plaintiffs argue that Sinclair, as regis-
tered agent for service, failed to notify the Secretary
of the State of a change in his business address in
violation of General Statutes § 34-104; see footnote 12
of this opinion; both the record and statutory provisions
applicable to service on a limited liability company dem-
onstrate that alternative methods of service were avail-
able to the plaintiffs. See General Statutes § 34-105 (a),
(d), and (e); see also General Statutes § 52-57 (a).
Because Sinclair was always available for abode ser-
vice, his failure to notify the Secretary of the State is
irrelevant; it did not prevent abode service. It was
instead the plaintiffs’ failure to use an alternative
method of service once their original attempt failed that
caused the untimely service and return of process.15
Accordingly, the court did not err when it did not
conclude that the defendants were evading service of
process or benefiting from the allegedly improper disso-
lution of River Valley Neurology, LLC.
C
Finally, the plaintiffs argue that the court improperly
failed to consider their arguments that the statute of
limitations was tolled by the defendants’ fraudulent con-
cealment or that the defendants should be equitably
estopped from asserting the statute of limitations. Spe-
cifically, they argue that the court should have applied
the doctrines of fraudulent concealment and equitable
estoppel to toll the statute of limitations in this case
efit from any delay that they caused by responding late
to the plaintiffs’ requests for medical records. We are
not persuaded.
In the trial court proceeding, as we have noted, the
defendants argued that dismissal was proper because,
among other reasons, they were prejudiced by the expi-
ration of the statute of limitations which prevented
them from impleading a third party defendant. The
plaintiffs responded that a motion to dismiss was not
the proper vehicle for raising a statute of limitations
defense, and, even if it was, the statute of limitations
should be tolled in this case either because the defen-
dants engaged in fraudulent concealment or because
they were estopped by their own wrongful conduct
from asserting the statute of limitations. The defendants
replied that they had not asserted the statute of limita-
tions as a defense but instead had used it to illustrate
the prejudice that would flow from amendment of the
return date.
Upon determining that the defendants would suffer
prejudice if an amendment was allowed; see part I B
of this opinion; the court noted in a footnote to its
memorandum of decision that ‘‘the defendants are not
raising the statute of limitations argument as a defense,
but rather as a form of prejudice. Since this court is
not deciding the statute of limitations claim by way of
this motion to dismiss, the court also need not discuss
the plaintiffs’ arguments that the statute of limitations
was tolled (1) by the doctrine of fraudulent conceal-
ment, (2) by estoppel, (3) because of . . . Sinclair’s
own fraudulent attempts to avoid service, or (4)
because of unavoidable mistake, inadvertence, or acci-
dent; nor does the court need to address the plaintiffs’
argument that the defendants should not be permitted
to benefit from their own wrongdoing with respect to
the dissolution procedure.’’
The court’s memorandum of decision makes clear
that it concluded that the defendants did not raise a
statute of limitations defense by way of the motion to
dismiss. Accordingly, the court did not consider the
merits of any such defense. Because the court did not
consider the viability of a statute of limitations defense,
it also declined to consider whether either of the doc-
trines on which the plaintiffs relied tolled the statute
of limitations. The plaintiffs cite no authority for their
assertion that the court should have considered these
tolling arguments related to the statute of limitations,
at the motion to dismiss stage, when the defendants’
claim was not that the plaintiffs’ case should be dis-
missed for having been filed outside of the statute of
limitations, but rather that the defendants would suffer
prejudice due to the running of the statute of limitations
foreclosing them from impleading a third party defen-
dant. We conclude that the court properly declined to
do so.
For the foregoing reasons, the court properly granted
the defendants’ motion to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.
1
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 sitting of the court].’’ We have interpreted this to mean
that ‘‘[a]ll 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).
2
General Statutes § 52-46a provides in relevant part: ‘‘Process in civil
actions . . . returnable to the Superior Court . . . [shall be returned] to
the clerk of such court at least six days before the return day.’’
3
General Statutes § 52-584 provides in relevant part: ‘‘No action to recover
damages for injury to the person, or to real or personal property, caused
by negligence, or by reckless or wanton misconduct, or by malpractice of
a physician . . . shall be brought but within two years from the date when
the injury is first sustained or discovered or in the exercise of reasonable
care should have been discovered, and except that no such action may be
brought more than three years from the date of the act or omission com-
plained of . . . .’’
4
General Statutes § 52-102b (a) provides in relevant part: ‘‘A defendant
in any civil action to which section 52-572h applies may serve a writ, sum-
mons and complaint upon a person not a party to the action who is or may
be liable pursuant to said section for a proportionate share of the plaintiff’s
damages in which case the demand for relief shall seek an apportionment
of liability. Any such writ, summons and complaint, hereinafter called the
apportionment complaint, shall be served within one hundred twenty days
of the return date specified in the plaintiff’s original complaint. . . .’’
5
General Statutes § 52-123 provides: ‘‘No writ, pleading, judgment or any
kind of proceeding in court or course of justice shall be abated, suspended,
set aside or reversed for any kind of circumstantial errors, mistakes or
defects, if the person and the cause may be rightly understood and intended
by the court.’’
6
General Statutes § 52-48 (b) provides: ‘‘All process shall be made return-
able not later than two months after the date of the process and shall
designate the place where court is to be held.’’
7
The plaintiffs also argued that the motion to dismiss was untimely. The
court rejected that argument, and the plaintiffs have not challenged that
determination on appeal.
8
After the parties filed their briefs and prior to oral argument, this court
decided Ribeiro v. Fasano, Ippolito & Lee, P.C., 157 Conn. App. 617, 117
A.3d 965 (2015). We ordered the parties to file supplemental briefs to address
the effect, if any, of that case on the present appeal.
9
General Statutes § 52-72 provides in relevant part: ‘‘(a) Upon payment
of taxable costs, any court shall allow a proper amendment to civil process
which is for any reason defective.
‘‘(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. . . .’’
10
In Rogozinski, our Supreme Court held that § 52-123 was unavailable
to cure the defect when the return of process was made five days before
the return date in violation of § 52-46a. Rogozinski v. American Food Service
Equipment Corp., supra, 211 Conn. 432, 435.
11
The plaintiffs also briefed a claim that even in the event the court
properly construed the statutory term ‘‘the date of the process,’’ to refer to
April 1, 2013, the date of the writ of summons, it should have amended both
that date and the return date sua sponte to permit compliance with § 52-
48 (b). They argue that the date of the process should have been amended
pursuant to General Statutes § 52-128, which provides in relevant part that
‘‘[t]he plaintiff may amend any defect, mistake or informality in the writ,
complaint, declaration or petition, and insert new counts in the complaint
or declaration, which might have been originally inserted therein, without
costs, within the first thirty days after the return day and at any time
afterwards on the payment of costs at the discretion of the court . . . .’’
At oral argument, however, the plaintiffs expressly abandoned any claim
that the court, sua sponte, should have amended the date of the writ, and,
accordingly, we do not consider it.
12
General Statutes § 34-104 (c) provides in relevant part: ‘‘If the statutory
agent for service changes his or its address within the state from that
appearing upon the record in the office of the Secretary of the State, the
limited liability company shall forthwith file with the Secretary of the State
notice of the new address. . . .’’
13
The alleged eight month delay occurred prior to the month of April, 2013.
14
General Statutes § 34-105 (d) provides in relevant part: ‘‘[A]ny process,
notice or demand in connection with any action or proceeding required or
permitted by law to be served upon a limited liability company which is
subject to the provisions of section 34-104 may be served upon any member
of the limited liability company in whom management of the limited liability
company is vested or any manager of the limited liability company by any
proper officer or other person lawfully empowered to make service by
leaving a true and attested copy of the process, notice or demand with such
member or manager or by leaving it at such member’s usual place of abode
in this state or, in the case of a manager who is a natural person, at such
manager’s usual place of abode in this state.’’
15
In this regard, the case of Bove v. Bove, supra, 93 Conn. App. 76, on
which the plaintiffs rely, is distinguishable. In Bove, the defendant affirma-
tively evaded the plaintiff’s attempts to serve him. The sheriff attempting
service ‘‘acknowledged the defendant, but, instead of receiving service, the
defendant jogged across the street onto a beach. Because the defendant did
not allow the sheriff to serve him with the papers, the sheriff put the process
in the defendant’s mailbox. When the defendant became aware that the
sheriff had placed papers in his mailbox, he contacted the United States
Postal Service. A letter carrier then removed the papers and took them to
a supervisor, who contacted the sheriff’s department. A representative from
the sheriff’s department later removed the papers.’’ (Footnote omitted.) Id.,80–81. In the present case, as we have discussed, the record belies the
plaintiffs’ allegations that the defendants acted affirmatively to evade service.
Thus, their reliance on Bove is misplaced.