Ribeiro v. Fasano, Ippolito & Lee, P.C. ( 2015 )

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NINO RIBEIRO v. FASANO, IPPOLITO
AND LEE, P.C., ET AL.
(AC 36385)
Gruendel, Lavine and Alvord, Js.
Argued January 21—officially released June 2, 2015
(Appeal from Superior Court, judicial district of New
Haven, Wilson, J.)
Stephen E. Pliakas, for the appellant (plaintiff).
Tiziana M. Scaccia, for the appellees (defendant
Fidelity National Title Insurance Company et al.).
Elizabeth T. Timkovich, with whom, on the brief,
was Pierre-Yves Kolakowski, for the appellee (defen-
dant Bank of America, N.A.).
Opinion
LAVINE, J. The plaintiff, Nino Ribeiro, appeals from
the judgment of the trial court dismissing his action
against the defendants Fidelity National Title Insurance
Company, Chicago Title Insurance Company, and Bank
of America, N.A.1 On appeal, the plaintiff claims that
the court improperly dismissed the present action by
concluding that the writ of summons and complaint
could not be amended to comply with both General
Statutes §§ 52-48 (b) and 52-46a. We disagree and, there-
fore, affirm the judgment of the trial court.
The following facts are the alleged factual predicate
for the plaintiff’s cause of action. In 2007, the plaintiff
retained the law firm of Fasano, Ippolito & Lee, P.C.,
and Attorney Alphonse Ippolito (collectively, law firm)
to represent his interests with regard to his purchase
of real property in New Haven. In that regard, Ippolito
was to procure a utility easement that permitted the
plaintiff to ‘‘tap into’’ the water and sewer lines on
an adjacent property. Subsequent to the closing of the
transaction on March 29, 2007, the adjacent property
owner refused to permit the plaintiff to ‘‘tap into’’ the
water and sewer lines on its property, allegedly on the
basis of the language in the utility easement drafted
by Ippolito.
In March, 2013, the plaintiff commenced the present
action against the defendants when a state marshal
served them with a writ of summons and complaint. The
complaint alleged, in part, that the law firm breached its
contractual obligation to the plaintiff by failing to draft
an easement that secured his desire to ‘‘tap into’’ the
water and sewer lines on the adjacent property. In addi-
tion, the complaint alleged that at the time of the plain-
tiff’s purchase of the real property, the law firm also
represented the interests of Bank of America, N.A.
(bank), the mortgagee, and Fidelity National Title Insur-
ance Company (insurer), the title insurance company.
The plaintiff claims that the defendants are liable to
him due to their agent’s breach of duty.
The facts that are relevant to our resolution of the
plaintiff’s appeal are the action’s procedural history,
specifically, the dates on which certain acts transpired.
There is no dispute as to the following facts. The writ
of summons and complaint was signed on March 26,
2013. The return date stated on the summons and com-
plaint was May 28, 2013. The time between March 26
and May 28, 2013, was two months and two days. The
plaintiff returned the writ of summons and complaint
(process) to court on May 21, 2013, seven days prior
to the return date.
On June 26 and June 27, 2013, the insurer and the
bank, respectively, filed motions to dismiss the action
on jurisdictional grounds. In their motions to dismiss,
the defendants claimed that the court lacked jurisdic-
tion because the process was signed on March 26, 2013,
and the return date was May 28, 2013, which was two
months and two days after the date of process in viola-
tion of § 52-48 (b). Section 52-48 provides that ‘‘(a)
Process in civil actions . . . 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
. . . .’’ Moreover, the defendants claimed that the pro-
cess cannot be amended to comply with § 52-48, as the
process was returned to court on May 21, 2013, which
was seven days prior to the return date. General Stat-
utes § 52-46a provides, in relevant part, that ‘‘[p]rocess
in civil actions . . . shall be returned . . . to the Supe-
rior Court . . . at least six days before the return day.’’
In response to the defendants’ motions to dismiss,
the plaintiff filed a request for leave to amend, serve
and file a writ of summons and complaint nunc pro
tunc, ‘‘thereby amending his complaint dated March 26,
2013, and making it returnable May 21, 2013,’’ and filed
nunc pro tunc on May 14, 2013, pursuant to § 52-72.
(Emphasis omitted.) General Statutes § 52-72 (a) pro-
vides: ‘‘Upon payment of taxable costs, any court shall
allow a proper amendment to civil process which is for
any reason defective.’’ The defendants objected to the
plaintiff’s request to amend process nunc pro tunc. The
court heard argument on the plaintiff’s request to amend
on September 23, 2013.2
On November 28, 2013, the court granted the defen-
dants’ motions to dismiss in a memorandum of decision.
The court summarized the defendants’ argument that
the process in the present case violated § 52-48 (b)
because the return date was two months and two days
after the date process was signed and that although § 52-
72 (a) permits process in a civil action to be amended in
the event of a mistake relating to the return date, the
plaintiff could not amend the process in such a way
that any amendment would comply with both § 52-48
(b) and § 52-46a. The court acknowledged the plaintiff’s
position that § 52-72 (a) allows a proper amendment to
civil process that is defective for any reason. The court
recognized that § 52-72 is to provide for the amendment
of otherwise incurable defects in civil process and that
the intent of the legislature was to prevent the loss of
jurisdiction ‘‘merely because of a defective return date.’’
(Internal quotation marks omitted.) Coppola v. Coppola,
243 Conn. 657, 664, 707 A.2d 281 (1998). The goal of
the statute is consistent with the public policy that
disputes should be resolved on the merits at trial when-
ever possible. Id., 665.
Despite the remedial nature of § 52-72 and the fact
that the statute is to be liberally construed, our Supreme
Court has established boundaries to the statute’s reach.
‘‘[T]he requirement of § 52-46a to return process in civil
actions to the clerk of the Superior Court at least six
days before the return date is mandatory and failure to
comply with its requirements renders the proceeding
voidable, rather than void, and subject to abatement.’’
(Footnote omitted.) Id., 661–62. ‘‘A return date may be
amended but it still must comply with the time limita-
tions 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 time
limit, circumscribes the extent to which a return date
may be amended.’’ (Internal quotation marks omitted.)
Id., 666–67.
In granting the defendants’ motions to dismiss, the
court analyzed the issue as follows. ‘‘[P]rocess was
signed with respect to both of the defendants on March
26, 2013, and the return date was set at May 28, 2013.
Since this return date is two months and two days past
the date on which process was signed, it is outside
the two month requirement of § 52-48 (b). The plaintiff
returned the process to this court on May 21, 2013, in
compliance with § 52-46a, as May 21 is at least six days
prior to the return date of May 28, 2013. The return of
process date here on May 21 . . . cannot be amended
to be in agreement with both § 52-46a and § 52-48 (b),
as it must be. Moreover, since the return date to this
court must be on a Tuesday, as [provided] in § 52-48
(a), moving the May 28 date back one week to a Tuesday
would make the return date fall on May 21, the same
date as the return of process, resulting in noncompli-
ance with § 52-46a. Also, if the return date is to be
pushed forward to the following Tuesday, on June 4,
2013, the two month limit between June 4, 2013, and
the date process was signed on March 26 would still
be contravened. Due to the original return date of May
28, 2013, on the writ of summons [and complaint], and
the date on which the plaintiff returned process to this
court on May 21, 2013, there is no date to which the
court can amend the return date and remain in compli-
ance with the requirements of both § 52-48 (b) and § 52-
46a. As this constitutes insufficient process, this court
lacks personal jurisdiction over the defendants.’’
On appeal, the plaintiff claims that the court improp-
erly concluded that (1) he could not amend his civil
process to comply with the two month limitation of
§ 52-48 (b) and that (2) Coppola v. Coppola, supra, 243
Conn. 665, precludes his proposed amendments to pro-
cess.3 The plaintiff also claims that the judgment dis-
missing his action against the defendants is contrary
to the public policy underlying § 52-72. We disagree.
We begin with the standard of review. ‘‘A motion to
dismiss . . . properly attacks the jurisdiction of the
court . . . . A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without
jurisdiction. . . . [O]ur review of the trial court’s ulti-
mate legal conclusion and resulting [decision to grant]
. . . the motion to dismiss will be de novo.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Courchesne, 296 Conn. 622, 668, 998 A.2d 1 (2010). The
parties agree that this appeal presents a question of
statutory interpretation. To the extent that our resolu-
tion of an appeal requires us to construe a statute, our
review is plenary, as statutory construction is a question
of law. See State v. Dash, 242 Conn. 143, 146–47, 698
A.2d 297 (1997).
We agree that the resolution of the plaintiff’s appeal
involves statutory construction. ‘‘When construing a
statute, [o]ur fundamental objective is to ascertain and
give effect to the apparent intent of the legislature. . . .
In other words, we seek to determine, in a reasoned
manner, the meaning of the statutory language as
applied to the facts of [the] case, including the question
of whether the language actually does apply. . . . In
seeking to determine that meaning, General Statutes
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered.’’ (Internal quotation marks omitted.)
Commissioner of Public Safety v. Freedom of Informa-
tion Commission, 137 Conn. App. 307, 313, 48 A.3d 694(2012), aff’d, 312 Conn. 513, 93 A.3d 1142 (2014).
We agree with the plaintiff that § 52-72 is remedial
in nature and is to be liberally construed. See Concept
Associates, Ltd. v. Board of Tax Review, 229 Conn. 618,
623, 642 A.2d 1186 (1994). We agree as well that as a
general rule, a trial court should permit a plaintiff to
amend the return date when, on the basis of the facts
of a particular case, the amendment brings process into
compliance with the mandatory requirements of both
§ 52-46a and § 52-48 (b). See Tucker v. Neighborhood
Legal Services, Inc., 4 Conn. App. 209, 213–14, 493 A.2d
278 (two month return date is mandatory), cert. dis-
missed, 197 Conn. 802, 495 A.2d 281 (1985); see also
Rogozinski v. American Food Service Equipment
Corp., 211 Conn. 431, 433, 559 A.2d 1110 (1989) (manda-
tory that writ be returned six days prior to return date).
In the present case, however, in order to bring his pro-
cess into compliance with both § 52-46a and § 52-48 (b),
the plaintiff seeks to amend the return date and the
date process was returned to court nunc pro tunc. The
fundamental question, therefore, is whether the date
a writ is returned to court constitutes ‘‘process’’ and
therefore is amendable pursuant to § 52-72. We con-
clude that it is not process and, therefore, may not
be amended.
When enacting statutes, the legislature is ‘‘presumed
to have created a harmonious and consistent body of
law . . . .’’ (Internal quotation marks omitted.) State
v. Courchesne, supra, 296 Conn. 709. Moreover, we pre-
sume that the legislature does ‘‘not intend to promulgate
statutes . . . that lead to absurd consequences or
bizarre results.’’ (Internal quotation marks omitted.) Id.,
710. ‘‘Accordingly, [i]n determining the meaning of a
statute . . . we look not only at the provision at issue,
but also to the broader statutory scheme to ensure
the coherency of our construction.’’ (Internal quotation
marks omitted.) Thomas v. Dept. of Developmental Ser-
vices, 297 Conn. 391, 404, 999 A.2d 682 (2010). General
Statutes §§ 52-45a, 52-46a, 52-48 and 52-72 are all con-
tained in chapter 896 of our General Statutes, which is
entitled ‘‘Civil Process, Service and Time for Return.’’
We therefore construe them in a harmonious manner
and as a consistent body of law.
Section 52-72 (a) provides: ‘‘Upon payment of taxable
costs, any court shall allow a proper amendment to civil
process which is for any reason defective.’’ (Emphasis
added.) ‘‘Civil process is the manner in which civil
actions are commenced. General Statutes § 52-45a pro-
vides that civil process consist[s] of a writ of summons
or attachment, describing the parties, the court to which
it is returnable, the return day, the date and place for
the filing of an appearance and information required
by the Office of the Chief Court Administrator. The
writ shall be accompanied by the plaintiff’s complaint.’’
(Internal quotation marks omitted.) Wilson v. Troxler,
91 Conn. App. 864, 870, 883 A.2d 18, cert. denied, 276
Conn. 928, 929, 889 A.2d 819, 820 (2005).
Our Supreme Court has construed ‘‘the term process
to include . . . the summons, the complaint and any
requisite attachments thereto. Civil process is defined
as [a] process that issues in a civil lawsuit. Black’s Law
Dictionary (8th Ed. 2004). This interpretation is also
consistent with the previous definition of civil process
in Black’s Law Dictionary, which referred to it as a
summons, or, summons and complaint, and, less com-
monly, to a writ. Black’s Law Dictionary (5th Ed. 1979);
see also General Statutes § 52-63 (b) and (c) (civil pro-
cess may be made by leaving writ, summons and com-
plaint with commissioner of motor vehicles); and
General Statutes § 52-102b (a) ([a]ny such writ, sum-
mons and complaint, hereinafter called the apportion-
ment complaint).’’ (Internal quotation marks omitted.)
Morgan v. Hartford Hospital, 301 Conn. 388, 402–403,
21 A.3d 451 (2011). We are unaware of any authority
for the proposition that civil process includes the date
a writ is returned to court.
In allowing a plaintiff to amend a return date to pre-
vent the loss of jurisdiction ‘‘ ‘merely because of a defec-
tive return date’ ’’; Coppola v. Coppola, supra, 243 Conn.
664; our Supreme Court has discussed the salutary pur-
pose of remedial statutes, such as § 52-72: ‘‘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 pro-
cedural 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 oppor-
tunity for cases to be resolved on their merits rather
than dismissed for some technical flaw.’’ (Emphasis in
original; internal quotation marks omitted.) New
England Road, Inc. v. Planning & Zoning Commis-
sion, 308 Conn. 180, 188–89, 61 A.3d 505 (2013).
Our Supreme Court ‘‘further determined that such an
interpretation was consistent with the [purpose of § 52-
72] of ending the inequities inherent in eighteenth cen-
tury common law that denied a plaintiff’s cause of
action if the pleadings were technically imperfect. . . .
[O]ur prior analysis of § 52-72 illustrates that the intent
of the legislature was to permit cure of technical, rather
than substantive, defects in civil process.’’ (Emphasis
altered; internal quotation marks omitted.) Id., 189. His-
torically, § 52-72 has been applied ‘‘to cure only techni-
cal defects in the return date or the late return of
process to court.’’ (Emphasis added.) Id., 186.
Courts have permitted parties to amend civil process
to correct the wrong return date; see Haigh v. Haigh,
50 Conn. App. 456, 717 A.2d 837 (1998); to correct a
one calendar year difference between the return date
on the summons and on the complaint; see Williamette
Management Associates, Inc. v. Palczynski, 134 Conn.
App. 58, 38 A.3d 1212 (2012); to correct the action where
it had been made returnable to the wrong court; see
Stingone v. Elephant’s Trunk Flea Market, 53 Conn.
App. 725, 732 A.2d 200 (1999); and to correct an apart-
ment number for the defendant. See Hartford National
Bank & Trust Co. v. Tucker, 178 Conn. 472, 423 A.2d
141 (1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1079,
63 L. Ed. 2d 319 (1980). Our Supreme Court allows an
improper return date to be amended after the return
date has passed when doing so will not offend § 52-48
(b); see Concept Associates, Ltd. v. Board of Tax
Review, supra, 229 Conn. 619–20; and to amend the
return date to correct a failure to return process to
court six days before the return date, if time permits.
See Coppola v. Coppola, supra, 243 Conn. 664. Each of
the defects in the foregoing cases was technical in
nature and was remedied by changing the word(s) or
numeral(s) on a page. We are not aware, however, of
any case in which a court has taken the unusual step
of purporting to alter, after the fact, the date on which
a writ actually was returned to court.
In New England Road, Inc. v. Planning & Zoning
Commission, supra, 308 Conn. 180, our Supreme Court
affirmed the judgment of the trial court denying a
request to amend the service of process pursuant to
§ 52-72 where the complaint was served without an
attached summons or citation. Id., 194. Citing Hillman
v. Greenwich, 217 Conn. 520, 524, 587 A.2d 99 (1991),
and Village Creek Homeowners Assn. v. Public Utilities
Commission, 148 Conn. 336, 339, 170 A.2d 732 (1961),
our Supreme Court stated that ‘‘a writ of summons is
a statutory prerequisite to the commencement of a civil
action. . . . [I]t is an essential element to the validity
of the jurisdiction of the court.’’ (Internal quotation
marks omitted.) New England Road, Inc. v. Planning &
Zoning Commission, supra, 192. Our Supreme Court
concluded that ‘‘the failure to serve a summons or cita-
tion is a substantive defect that is not amendable pursu-
ant to § 52-72.’’ (Emphasis added.) Id., 191–92.
The relevant question, then, is whether the date pro-
cess is returned is substantive or technical in nature.
We conclude that the date process is returned to court
is an historical fact and may not be amended by judicial
fiat. Once process is returned to court and the date of
return is recorded in the Superior Court file, it ought
not be subject to change.
Our conclusion that the plaintiff in the present case
may not avail himself of § 52-72 to amend the date the
writ was returned to court finds support in Rogozinski
v. American Food Service Equipment Corp., supra, 211
Conn. 431. In Rogozinski, the process was returned to
court five days, not six, prior to the return date. Id.,
432. Our Supreme Court affirmed the judgment of the
trial court dismissing the action for failure to comply
with the mandatory requirement of § 52-46a that pro-
cess be returned to court at least six days prior to the
return date. Id., 435. The Rogozinski plaintiff argued
that ‘‘the late return of process was a ‘circumstantial
error’ within the meaning of [General Statutes] § 52-
123, and, therefore, the matter should not have been
dismissed.’’4 Id., 433. Our Supreme Court disagreed,
stating that ‘‘despite its facially expansive language,
§ 52-123 and its predecessors have been uniformly lim-
ited in their application to defects in the writ. See E.
Stephenson, [Connecticut Civil Procedure (2d Ed.)]
§ 101, pp. 435–36. Meanwhile, there is uncontroverted
authority to the effect that defects in the process are
voidable and therefore subject to abatement.’’ Rogozin-
ski v. American Food Service Equipment Corp.,
supra, 435.
Circumstantial defects appear to be similar in nature
to the technical defects our Supreme Court discussed
in New England Road, Inc. v. Planning & Zoning Com-
mission, supra, 308 Conn. 180. ‘‘Circumstantial defects
not subject to abatement by reason of § 52-123 or its
predecessors have included the mistaken use of a Prac-
tice Book form . . . failure to designate an apartment
number in a writ . . . an erroneous reference in appeal
papers to next term instead of next return day . . . a
copy of the affidavit attached to the writ served upon
the defendant did not bear the signature of the affiant
. . . an erroneous reference in the return to the City
Court held at New Haven in and for the city of New
Haven instead of The City Court of New Haven . . . an
erroneous prayer for relief on the writ and declaration
rather than on the writ alone . . . and a defendant who
had signed his name in the body of a plea in abatement
signed defendant at the end of the plea instead of again
signing his name.’’ (Citations omitted; internal quotation
marks omitted.) Rogozinski v. American Food Service
Equipment Corp., supra, 211 Conn. 434.
After concluding that the trial court properly dis-
missed the Rogozinski action, our Supreme Court
stated in a footnote that ‘‘the General Assembly specifi-
cally considered this issue when it enacted General
Statutes § 52-592, the accidental failure of suit statute,
inasmuch as it specifically refers to the failure to return
process. Since that statute authorizes the reinitiation
of a suit that has failed ‘to be tried on its merits because
of insufficient service or return of the writ due to . . .
neglect of the officer to whom it was committed’ then,
arguably, a suit whose process fails for an unknown
reason, such as is the case here, should not be treated
any more harshly.’’ Id., 435 n.2. On the basis of this
precedent, we conclude that the date process is
returned to court is an historical fact that is substantive
in nature and is not amendable pursuant to § 52-72.
For the foregoing reasons, we agree with the trial
court that there is no date to which it 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. To remedy the defect present
here by manipulating an historical fact would be, in our
opinion, a step too far. We therefore affirm the judgment
of the trial court dismissing the plaintiff’s action.
The judgment is affirmed.
In this opinion ALVORD, J., concurred.
1
Fasano, Ippolito & Lee, P.C., and Alphonse Ippolito are also defendants,
but they are not parties to this appeal. We, therefore, refer in this opinion
to Fidelity National Title Insurance Company, Chicago Title Insurance Com-
pany, and Bank of America, N.A., as the defendants.
2
The court did not rule on the plaintiff’s request to amend. The request to
amend, however, was rendered moot when the court granted the defendants’
motions to dismiss.
3
On appeal, the plaintiff has argued strenuously that our Supreme Court’s
decision in Coppola entitles him to amend the return date and the date he
returned the writ to the Superior Court. We acknowledge the remedial
purpose of § 52-72 articulated in Coppola, but that purpose cannot be
achieved under the facts of the present case. Coppola is factually distin-
guishable.
In Coppola, process, with a return date of August 15, 1995, was signed
on June 25, 1995. Coppola v. Coppola, supra, 243 Conn. 660. Process was
returned to court on the return date, August 15, 1995, not six days prior
thereto as required by § 52-46a. Id. Our Supreme Court permitted the return
date to be amended to August 22, 1995, to comply with the six day rule, as
that date did not violate the two month rule prescribed by § 52-48 (b); id.,
667 n.12; in other words, two months from the date process was signed was
August 25, 1995. In the present case, process was returned in accord with
§ 52-48 (b), but the return date exceeded the mandatory two month time
limit by two days. ‘‘Section 52-48 (b) . . . with its two month limit, circum-
scribes the extent to which a return date may be amended.’’ Id., 666–67.
It is significant that in Coppola, the date process was signed was the date
from which the two month limit of § 52-48 (b) was counted. ‘‘[O]nce an
action has been brought by service of process on the defendant, a trial court
may thereafter dismiss the action for failure to return the service of process
within the mandated time period.’’ Rana v. Ritacco, 236 Conn. 330, 339, 672
A.2d 946 (1996). The date process is signed is a matter of record and an
historical fact. The date the process is returned to court also is a matter of
record and an historical fact, and may not be altered.
4
General Statutes § 52-123, entitled ‘‘Circumstantial defects not to abate
pleadings,’’ 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.’’