Dickerson v. Pincus ( 2014 )

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DONNIE DICKERSON, ADMINISTRATOR
(ESTATE OF MYRA DICKERSON)
v. JAYNE F. PINCUS ET AL.
(AC 34993)
Beach, Alvord and Harper, Js.
Argued September 9—officially released December 9, 2014
(Appeal from Superior Court, judicial district of
Fairfield, S. Richards, J.)
Alinor C. Sterling, with whom were Adele R. Jacobs
and, on the brief, Brenden P. Leydon, Steven D. Ecker
and M. Caitlin S. Anderson, for the appellants
(plaintiffs).
Lorinda S. Coon, with whom, on the brief, was Liam
M. West, for the appellee (defendant Connecticut Health
of Greenwich, LLC).
Opinion
BEACH, J. The plaintiff Donnie Dickerson, individu-
ally and as administrator of the estate of Myra Dick-
erson, appeals from the trial court’s granting of the
motion to dismiss filed by the defendant Connecticut
Health of Greenwich, LLC.1 The plaintiff claims that the
court erroneously held that General Statutes § 52-593a
did not save this action from dismissal.2 We agree and
thus reverse the judgment of the trial court.
By complaint dated October 18, 2010, the plaintiff
brought a wrongful death action pursuant to General
Statutes § 52-5553 against the defendant, as well as
against Jayne F. Pincus and Connecticut Health Facili-
ties, Inc. Section 52-555 (a) provides that wrongful death
actions must be brought ‘‘within two years from the
date of death . . . .’’ Civil actions are commenced by
service of process. General Statutes § 52-45a. An action
generally is ‘‘brought’’ against a defendant on the date
on which the writ is served on that defendant. Hillman
v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991).
The decedent died on July 22, 2008. The plaintiff
petitioned for and received a ninety day automatic
extension of the statute of limitations; see General Stat-
utes § 52-190a (b); and, therefore, was required to serve
the complaint on the defendant by October 20, 2010.
The marshal’s original return of service did not specify
the date on which the marshal received the summons
and complaint. Under the heading ‘‘County of Fairfield /
ss: Bridgeport / Date: October 19, 2010,’’ the marshal
stated that he ‘‘made service of the within and foregoing
original Summons—Civil, Complaint,’’ on Pincus.4
Under the heading ‘‘County of Litchfield / ss: Suffield /
Date: October 28, 2010,’’ the marshal stated that he
‘‘then made further service of the within original by
leaving a true and attested copy’’ at the abode of a
person who apparently was an agent of the defendant.
The defendant filed a motion to dismiss the plaintiff’s
action against it for lack of subject matter jurisdiction5
on the ground that the plaintiff had failed to commence
the action within the two year statute of limitations set
forth by the wrongful death statute, § 52-555 (a). In the
memorandum of law attached to the motion to dismiss,
the defendant argued that the court lacked subject mat-
ter jurisdiction because the defendant was served with
the summons and complaint on October 28, 2010. This
date was outside the statute of limitations and the ninety
day extension, which had the effect of requiring the
plaintiff to commence the action by October 20, 2010.
In opposition, the plaintiff argued that he had placed
the summons and complaint in the hands of the marshal
prior to the expiration of the limitations period, as evi-
denced by the marshal’s affidavit attached to the return,
and that service was timely completed within thirty
days of the date on which the marshal had received the
summons and complaint.
On July 16, 2012, the court granted the motion to
dismiss. The court concluded that the action was not
saved by § 52-593a, which provides that a cause of
action shall not be lost if process is delivered to the
marshal within the limitations period and the marshal
serves it within thirty days of delivery to him. The court
reasoned that the marshal’s return, which the court
stated was silent as to the date of delivery of process
to the marshal, failed to comply with § 52-593a (b),
which requires the marshal to ‘‘endorse under oath on
[his] return the date of delivery of the process to such
officer for service . . . .’’6 This appeal followed.
The plaintiff claims that the court erroneously held
that § 52-593a did not save the action from dismissal.
He argues that the original return is not silent as to the
date of delivery to the marshal, but, rather, in the return,
the marshal attested that he served the summons and
complaint on Pincus on October 19, 2010, and from that
it is clear that process had been delivered to the marshal
before the expiration of the statute of limitations on
October 20, 2010. We agree; because the return certified
that a copy of the ‘‘within original’’ had been served on
the defendant on October 28, 2010, the action was
saved.
‘‘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 pre-
trial motion to dismiss, it must consider the allegations
of the complaint in their most favorable light. . . . 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 quotation marks omitted.) Dayner v.
Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d
1192 (2011).
Section 52-593a provides in relevant part: ‘‘(a) . . .
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. (b) In any such case, the officer making service
shall endorse under oath on such officer’s return the
date of delivery of the process to such officer for service
in accordance with this section.’’ The record in the trial
court demonstrates that the requirements of the savings
statute, § 52-593a (a), were satisfied. Subsection (a)
required that process was to be personally delivered to
a proper officer before the statute of limitations ran on
October 20, 2010, and, further, required that the officer
serve the defendant with process within thirty days of
delivery to him. The return is not silent as to the date
of delivery to the marshal. Although the return should
have complied with the direction of § 52-593a (b) to
include the date of delivery to the marshal, it nonethe-
less left no reasonable question as to what had
occurred. It is clear from the marshal’s return that the
marshal received the summons and complaint prior to
the expiration of the statute of limitations, as extended
by § 52-190a, and that the marshal served process on
the defendant within thirty days of delivery to him.
In the return, the marshal stated under the heading
‘‘October 19, 2010,’’ ‘‘I made service of the within and
foregoing original Summons—Civil, Complaint . . . .’’
The attached ‘‘foregoing original’’ named Pincus, Con-
necticut Health of Greenwich, LLC, and Connecticut
Health Facilities, Inc., as defendants. Under the heading
‘‘October 28, 2010,’’ the marshal stated: ‘‘I then made
further service of the within original’’ on the defen-
dant. (Emphasis added.) There is only one reasonable
interpretation of the phrase ‘‘further service of the
within original . . . .’’ This phrase obviously refer-
enced the summons and complaint that the marshal
served on Pincus on October 19, 2010, and which named
Connecticut Health of Greenwich, LLC, as a defendant.
The marshal signed the return next to the word ‘‘attest.’’
There is a presumption of truth afforded to the state-
ments in the marshal’s return. Knipple v. Viking Com-
munications, Ltd., 236 Conn. 602, 607 n.9, 674 A.2d 426(1996). The only reasonable inference from the docu-
ments in the court file is that on October 19, 2010, the
day before the extended statute of limitations expired,
the marshal had in his possession the original summons
and complaint, a copy of which was served on the
defendant on October 28, 2010.
It is also clear that the marshal received the summons
and complaint on October 19, 2010. The plaintiff’s attor-
ney signed the summons and under ‘‘date signed’’ typed:
‘‘October 19, 2010.’’ A trial court may rely on representa-
tions of attorneys, who are officers of the court and
are obligated to make truthful statements of law and
fact. State v. Chambers, 296 Conn. 397, 419, 994 A.2d
1248 (2010). The summons was signed on October 19,
2010, and the marshal served process of the summons
and complaint on Pincus on October 19, 2010. The sum-
mons states: ‘‘TO: Any proper officer; BY AUTHORITY
OF THE STATE OF CONNECTICUT, you are hereby
commanded to make due and legal service of this Sum-
mons and attached Complaint.’’ The summons attached
to the return is signed by the plaintiff’s attorney; logi-
cally, the marshal must have served Pincus after the
plaintiff’s attorney signed the summons, all of which
occurred on October 19, 2010.7
The marshal’s failure to comply with the require-
ments of subsection (b) of § 52-593a does not preclude
the application of the savings statute in this case. As
the plaintiff argues in his brief, the provisions of subsec-
tion (b) are directory rather than mandatory, and the
failure of the marshal to include the date of delivery in
the return is not a fatal jurisdictional defect depriving
the plaintiff of his day in court.
‘‘The test to be applied in determining whether a
statute is mandatory or directory is whether the pre-
scribed mode of action is the essence of the thing to
be accomplished, or in other words, whether it relates
to a matter of substance or a matter of convenience.
. . . If it is a matter of substance, the statutory provi-
sion is mandatory. If, however, the legislative provision
is designed to secure order, system and dispatch in
the proceedings, it is generally held to be directory,
especially where the requirement is stated in affirmative
terms unaccompanied by negative words.’’ (Internal
quotation marks omitted.) State v. Murray, 254 Conn.
472, 489, 757 A.2d 578 (2000).
The essence of ‘‘the thing to be accomplished’’ in
§ 52-593a is to allow an action to be brought even though
process is served after the expiration of the limitations
period, when process is delivered to the marshal within
the limitations period and the marshal serves process
within thirty days of delivery. ‘‘[Section] 52-593a is a
remedial provision that allows the salvage of an [action]
that otherwise may be lost due to the passage of time.
. . . [R]emedial statutes must be afforded a liberal con-
struction in favor of those whom the legislature
intended to benefit.’’ (Citations omitted; internal quota-
tion marks omitted.) Dorry v. Garden, 313 Conn. 516,
533, 98 A.3d 55 (2014). ‘‘Our preference is to avoid
a termination of proceedings due to mere technical
imperfection.’’ Kobyluck v. Planning & Zoning Com-
mission, 84 Conn. App. 160, 166, 852 A.2d 826, cert.
denied, 271 Conn. 923, 859 A.2d 579 (2004); see also
Concept Associates, Ltd. v. Board of Tax Review, 229
Conn. 618, 623–24, 642 A.2d 1186 (1994) (concluding
that General Statutes § 52-72 permitted amendment of
return date).
Subsection (b) of § 52-593a does not address the
essence of the thing to be done, which, in this case, was
delivery to the marshal within the period of limitations;
rather, it provides the manner in which compliance with
subsection (a) of § 52-593a is supposed to be shown.
Although the marshal’s return did not satisfy the
requirements of subsection (b),8 there is no question
but that the process was delivered to the marshal on
October 19, 2010, within the statute of limitations, as
extended, and that the marshal served the defendant
nine days later, on October 28, 2010. The purpose of
the remedial savings statute would not be served by
prohibiting the plaintiff from bringing the action only
because the marshal did not perfectly fill out the mar-
shal’s return, as provided in subsection (b), when it is
nonetheless clear from the marshal’s return in this case
that the marshal received the summons and complaint
within the limitations period and served it on the defen-
dant within thirty days, as required by subsection (a).
Accordingly, the trial court erred in determining that
§ 52-593a did not apply so as to save the action. See
also Dorry v. Garden, supra, 313 Conn. 533.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
Jayne F. Pincus and Connecticut Health Facilities, Inc., were also named
as defendants in the complaint. Connecticut Health of Greenwich, LLC, filed
this appeal and is the only defendant participating in the appeal. For ease
of reference, we refer to Connecticut Health of Greenwich, LLC, as the
defendant.
2
The plaintiff also claims that the court erred in denying his motion for
permission to file an amended return. Because we conclude that the court
erred in granting the motion to dismiss, we need not address this claim.
3
General Statutes § 52-555 (a) provides: ‘‘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.’’
4
The return also stated that service was made on Connecticut Health
Facilities, Inc.; the date written in the heading corresponding to that service
was October 28, 2010.
5
Because the action was intended to be brought pursuant to § 52-555, a
statutory cause of action that expressly includes a limitation of action,
subject matter jurisdiction is implicated. See Ecker v. West Hartford, 205
Conn. 219, 233, 530 A.2d 1056 (1987).
6
On July 24, 2012, the plaintiff filed an amended return, which differed
from the original return in that in the amended return, the marshal addition-
ally stated: ‘‘On October 19, 2010, the Summons—Civil and Complaint in
the within action was picked up personally by me from the law offices of
Adele Jacobs Esq. for service upon the defendants named herein.’’ The
plaintiff filed a motion for reconsideration and reargument, which the court
denied. On August 6, 2012, the plaintiff filed a motion for permission to
amend the marshal’s return, which the court also denied.
7
There is no suggestion of any fraud or mistake in the preparation of
papers filed in the court.
8
A comparison between the facts of this case and those of Gianetti v.
Connecticut Newspapers Publishing Co., 136 Conn. App. 67, 44 A.3d 191,
cert. denied, 307 Conn. 923, 55 A.3d 567 (2012), is instructive. In Gianetti,
there was no evidence that the marshal had received the process within
the prescribed period; id., 72; in those circumstances, the failure of the
marshal to include the date of delivery in the return of process was fatal.
Id., 74. This court mentioned the duty of the marshal to comply with the
requirements of § 52-593a (b) and that the plaintiff had not shown the
marshal’s compliance with subsection (b). Id., 72. The court went on, how-
ever, to discuss in some detail whether proof of mailing the process to the
marshal constituted delivery for the purpose of the saving statute. Id., 73.
Such discussion would have been entirely immaterial had the only dispositive
question been the marshal’s compliance with § 52-593a (b). The court in
Gianetti further noted that because no amended return or affidavit had
been filed, it did not have to decide whether an amended return or affidavit
would have sufficed to cure the defect. Id., 74. In the present case, an
amended return was sought to be filed.