Concept Associates, Ltd. v. Board of Tax Review of Town of Guilford

• Decision Date: 14 June 1994
• Docket Number: No. 14819,14819
• Citation: 642 A.2d 1186,229 Conn. 618
• Court: Connecticut Supreme Court
• Parties: CONCEPT ASSOCIATES, LTD. v. BOARD OF TAX REVIEW OF the TOWN OF GUILFORD et al.

Page 1186

642 A.2d 1186

229 Conn. 618

CONCEPT ASSOCIATES, LTD. v. BOARD OF TAX REVIEW OF the TOWN OF GUILFORD et al.

No. 14819.

Supreme Court of Connecticut.

Argued March 24, 1994.

Decided June 14, 1994.

John K. Atticks III, Madison, for the appellant (plaintiff).

Judith A. Ravel, Branford, with whom, on the brief, was Jeffrey M. Donofrio, New Haven, for the appellees (defendants).

Before PETERS, C.J., and BORDEN, BERDON, KATZ and PALMER, JJ.

BERDON, Associate Justice.

The sole issue in this appeal is whether General Statutes § 52-72 ¹ permits the amendment of an improper return date in civil process after the return date has passed. We conclude that it does and therefore reverse the contrary judgment of the Appellate Court.

The following relevant facts are undisputed. On October 1, 1991, the plaintiff, Concept Associates, Ltd., was the owner of a parcel of land located in Guilford. The plaintiff appealed the 1991 assessment of that property to the defendant board of tax review of the town of Guilford (board). ² On March 31, 1992, the board affirmed the challenged assessment. On May 6, 1992, pursuant to General Statutes § 12-117a, ³ the plaintiff appealed to the Superior Court. The plaintiff's summons specified as a return date May 28, 1992, a Thursday, rather than May 26, 1992, a Tuesday, in violation of General Statutes § 52-48. ⁴

The plaintiff's tax appeal was served on the defendants on May 7, 1992, and was filed in the trial court on May 14, 1992. On May 28, 1992, the defendants filed an appearance in the trial court. On June 26, 1992, the defendants filed a motion to dismiss the appeal on the ground that the use of the defective return date in the summons deprived the court of jurisdiction. On July 2, 1992, the plaintiff filed a motion to amend pursuant to § 52-72 seeking permission to correct the return date from May 28, 1992, to May 26, 1992. On September 4, 1992, the trial court held that the return date could not be amended under § 52-72 because the correct date had already passed. The trial court granted the defendants' motion to dismiss for lack of jurisdiction and the plaintiff appealed to the Appellate Court.

The Appellate Court affirmed the judgment of the trial court dismissing the plaintiff's appeal. Concept Associates, Ltd. v. Board of Tax Review, 31 Conn.App. 793, 627 A.2d 471 (1993). The court held that "once the date for return has passed there is nothing before the court that can be amended." Id., at 797, 627 A.2d 471. Therefore, "dismissal of the action for lack of subject matter jurisdiction was proper." Id. We granted the plaintiff's petition for certification ⁵ and now reverse.

The plaintiff claims that § 52-72 permits the amendment of process to correct an improper return date regardless of whether the correct return date has passed. This statute provides that "[a]ny court shall allow a proper amendment to civil process which has been made returnable to the wrong return day ... upon sustaining a plea in abatement." The defendants concede that the legislature has the power to authorize, by statute, the amendment of defects in process that would otherwise deprive the court of jurisdiction. They nevertheless claim that because the plaintiff did not seek to amend the return date until after the correct return date had passed, the amendment was not "a proper amendment" within the meaning of § 52-72. We disagree with the defendants' construction of the statute. ⁶

" '[T]he fundamental objective of statutory construction is to ascertain and give effect to the apparent intent of the legislature.' (Internal quotation marks omitted.) Warkentin v. Burns, 223 Conn. 14, 20, 610 A.2d 1287 (1992)." State v. Guckian, 226 Conn. 191, 198, 627 A.2d 407 (1993); see also State v. Johnson, 227 Conn. 534, 541, 630 A.2d 1059 (1993); All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 194, 567 A.2d 1156 (1989). In determining the legislature's intent, "this court is to be guided by the language, purpose and legislative history of the statute in question." Vanzant v. Hall, 219 Conn. 674, 682, 594 A.2d 967 (1991); see also Carothers v. Capozziello, 215 Conn. 82, 120, 574 A.2d 1268 (1990); Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 405, 528 A.2d 805 (1987). Furthermore, "in the absence of ambiguity, courts cannot read into statutes, by construction, provisions which are not clearly stated...." (Internal quotation marks omitted.) Carothers v. Capozziello, upra, 215 Conn. at 129, 574 A.2d 1268; see also State v. Johnson, supra, 227 Conn. at 542, 630 A.2d 1059; Glastonbury Co. v. Gillies, 209 Conn. 175, 179, 550 A.2d 8 (1988).

Section 52-72 was originally adopted in 1917. Public Acts 1917, c. 164. Although there is no legislative history available, it appears that the statute was enacted in response to decisions of this court holding that an improper return date was a jurisdictional defect that could not be corrected. See, e.g., Hoxie v. Payne, 41 Conn. 539 (1874). Indeed, this court has stated that the purpose of § 52-72 "is to provide for amendment of otherwise incurable defects that go to the court's jurisdiction." Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 478-79, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d 319 (1980). The apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date.

Section 52-72 does not contain a provision limiting its applicability to amendments that are sought before the passage of the correct return date. The defendants claim, however, that such a limitation is implicit in the words "a proper amendment" because there is no longer a case before the court once the return date has passed. Therefore, there is nothing to amend. We disagree with this strict construction. As a remedial statute, § 52-72 must " 'be liberally construed in favor of those whom the legislature intended to benefit. Hartford Fire Ins. Co. v. Brown, 164 Conn. 497, 503, 325 A.2d 228 (1973).' Hinchliffe v. American Motors Corporation, [184 Conn. 607, 615 n. 4, 440 A.2d 810 (1981) ]." Chrysler Corporation v. Maiocco, 209 Conn. 579, 595-96, 552 A.2d 1207 (1989). Indeed, as Professor Edward L. Stephenson points out, statutes such as § 52-72 were intended to take the sharp edges off the common law: "Over-technical formal requirements have ever been a problem of the common law, leading [the legislature] at periodic intervals to enact statutes ... which, in substance, told the courts to be reasonable in their search for technical perfection." 1 E. Stephenson, Connecticut Civil Procedure (2d Ed.1970) § 35, p. 137.

Furthermore, " 'principles of statutory construction ... require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results.' Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991). 'We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. Peck v. Jacquemin, 196 Conn. 53, 63-64, 491 A.2d 1043 (1985).' Id., 219 Conn. at 713, 595 A.2d 297." Scrapchansky v. Plainfield, 226 Conn. 446, 453, 627 A.2d 1329 (1993); see also State v. Johnson, supra, 227 Conn. at 542, 630 A.2d 1059; Fairfield Plumbing & Heating Supply Corp. v. Kosa, 220 Conn. 643, 650-51, 600 A.2d 1 (1991). Section 52-72 requires the court to allow an amendment "upon sustaining a plea in abatement." At the time the statute was adopted, the Practice Book provided that pleas in abatement had to be filed "before the opening of the court on the day following the return day of the writ." Practice Book, 1908, Rules of the Superior Court § 12, p. 206; see also Mitchell v. Smith, 74 Conn. 125, 126, 49 A. 909 (1901). Because a plea in abatement could be filed until the close of court on the return date, the legislature must have contemplated that the sustaining of a plea in abatement, and consequently the amendment of a defective return date, could occur after the return date had passed. Indeed, in Corden v. Zoning Board of Appeals, 131 Conn. 654, 658, 41 A.2d 912 (1945), this court held that the plaintiffs' failure to provide a sufficient bond, which was a jurisdictional defect, could be corrected pursuant to § 52-72 ⁷ even after an appeal and remand to the trial court.

The defendants nevertheless claim that even if § 52-72 permits the amendment of process after the return date has passed, the statute applies only if a motion to amend or an opposing party's motion to dismiss is filed before the return date. We disagree, however, because such an interpretation would thwart the intended purpose of the statute. A defendant in a civil action need not appear in court until the second day following the return date. Practice Book § 66. A motion to dismiss, which has replaced the plea in abatement as the vehicle for challenging the court's jurisdiction; Hartford National Bank & Trust Co. v. Tucker, supra, 178 Conn. at 477 n. 2, 423 A.2d 141; need not be filed until thirty days after the defendant's appearance. Practice Book § 142. As a practical matter, a motion to dismiss is never brought before the return date has passed. Therefore, under the defendants' proposed construction of the statute, a defendant could avoid the operation of § 52-72 simply by failing to call the plaintiff's attention to the defective return date until after the return date. Only plaintiffs who discover their technical (and sometimes typographical) mistakes early and file motions to amend before the return date passes could benefit from the statute. We decline to adopt such a narrow interpretation of this remedial statute.

In sum, we reject the defendants' claim that an amendment to correct a defective return date is "proper" under § 52-72 only if it is sought before the return date has passed. We therefore reverse the judgment of the Appellate Court and remand the case to the...