Johnson v. Preleski

Decision Date24 March 2020
Docket NumberSC 20104
Citation335 Conn. 138,229 A.3d 97
CourtConnecticut Supreme Court
Parties Anthony JOHNSON v. Brian PRELESKI, State's Attorney

Norman A. Pattis, Bethany, for the appellant (petitioner).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Christian M. Watson, supervisory assistant state's attorney, for the appellee (respondent).

Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.**

ROBINSON, C. J.

The sole issue in this certified appeal is whether a successful facsimile (fax) transmission constitutes personal delivery under General Statutes § 52-593a,1 a savings statute that permits a plaintiff to comply with a statute of limitations through timely personal delivery of process, prior to the expiration of the limitation period, to a state marshal for service. The petitioner, Anthony Johnson, appeals, upon our granting of his petition for certification,2 from the judgment of the Appellate Court affirming the trial court's dismissal of his petition for a new trial brought against the respondent, Brian Preleski, the state's attorney for the New Britain judicial district, as time barred.

Johnson v. Preleski , 174 Conn. App. 285, 286, 298, 166 A.3d 783 (2017). On appeal, the petitioner contends, inter alia, that the Appellate Court improperly disregarded the remedial purpose of § 52-593a in concluding that the successful fax transmission of process to the state marshal is not personal delivery as contemplated by that savings statute. We agree and, accordingly, reverse the judgment of the Appellate Court.

The record reveals the following undisputed facts and procedural history. On May 26, 2011, the petitioner was convicted of murder, and, on August 5, 2011, he was sentenced to forty-five years imprisonment. The Appellate Court affirmed the judgment of conviction following the petitioner's direct appeal. State v. Johnson , 149 Conn. App. 816, 831, 89 A.3d 983, cert. denied, 312 Conn. 915, 93 A.3d 597 (2014).

Subsequently, the petitioner sought to file a petition for a new trial pursuant to General Statutes § 52-2703 on the basis of newly discovered evidence. At 4:59 p.m. on August 5, 2014, which was the final day prior to the expiration of the three year statutory limitation period for the petition,4 Donna Peat, the office manager for the petitioner's attorney, faxed the process for the petition to Charles J. Lilley, a state marshal, for service. The fax transmission report indicated that the process was successfully delivered to Lilley's fax machine at 5:01 p.m. that day, along with a cover sheet directing Lilley to serve the process "ASAP."5 Peat also attempted to call Lilley on August 5 but could not reach him and left him a voice mail message instead. Although Lilley's fax machine received the fax on August 5, Lilley could not recall whether he was at work that day or whether he physically held the process in his hand. He also did not indicate the date he received the process on the return of service. In any event, Lilley served process on the respondent on the next day, August 6, 2014.

On August 28, 2014, the respondent filed a motion to dismiss the petition for a new trial pursuant to Practice Book § 10-30, claiming that the petition is time barred because the petitioner did not serve process on him until one day after the expiration of the three year limitation period. See General Statutes § 52-582(a). The respondent also filed an answer and special defense in which he again asserted that the petition was barred by the statute of limitations. Specifically, the respondent argued that the transmission of a fax to a marshal does not constitute evidence of personal delivery prior to the expiration of the statute of limitations for purposes of § 52-593a (a), and, without any other proof of personal delivery, such as an endorsement by the marshal, the petition is time barred.

After an evidentiary hearing, and over the petitioner's objection,6 the trial court agreed with the respondent and concluded that the petitioner failed to prove that he served process on the respondent prior to the expiration of the statute of limitations. Specifically, the trial court determined that there was no proof of timely delivery of the process to Lilley for purposes of § 52-593a (a) because Lilley did not endorse the date of delivery pursuant to § 52-593a (b), and the petitioner failed to provide legal support for the proposition that a fax constituted personal delivery as a matter of law. The trial court subsequently rendered judgment dismissing the petition for a new trial.7

The petitioner appealed from the judgment of the trial court to the Appellate Court. Relying on its decision in Gianetti v. Connecticut Newspapers Publishing Co. , 136 Conn. App. 67, 44 A.3d 191, cert. denied, 307 Conn. 923, 55 A.3d 567 (2012), the Appellate Court agreed with the trial court's conclusion that the petitioner's transmission of process to Lilley by fax did not constitute personal delivery sufficient to save the petition for a new trial under § 52-593a (a). Johnson v. Preleski , supra, 174 Conn. App. at 295–98, 166 A.3d 783. The Appellate Court reasoned that the remedial nature of § 52-593a "[did] not require [it] to vitiate clear statutory requirements, thus rendering meaningless the thing to be accomplished by the statute." Id., at 297, 166 A.3d 783. This certified appeal followed. See footnote 2 of this opinion.

On appeal, the petitioner claims that the Appellate Court improperly upheld the dismissal of his petition on the basis of an "unduly strict interpretation" of § 52-593a (a). He argues that, even without an endorsement from the marshal showing the date of receipt pursuant to § 52-593a (b), the evidence of the successful fax transmission of process to Lilley's fax machine constituted other evidence sufficient as a matter of law to show that the process was personally delivered to a state marshal prior to the expiration of the statute of limitations. The petitioner further contends that treating his successful fax transmission to Lilley as personal delivery is consistent with the policy underlying both statutes of limitations generally and § 52-593a as a savings statute. In response, the respondent argues that sending process by fax is insufficient to comply with the personal delivery requirements of § 52-593a (a). According to the respondent, allowing transmission of a fax without confirmation of receipt from the marshal himself would render the statute's personal delivery requirement meaningless. We disagree with the respondent's strict interpretation of § 52-593a (a) and conclude that evidence of a successful fax transmission of process to a state marshal's fax machine prior to the lapse of the statute of limitations constitutes personal delivery that will afford a plaintiff the benefit of that savings statute.

Whether the trial court properly interpreted § 52-593a (a) in connection with the respondent's statute of limitations special defense presents a question of law over which we exercise plenary review. See, e.g., JP Morgan Chase Bank, N.A. v. Winthrop Properties, LLC , 312 Conn. 662, 670, 94 A.3d 622 (2014) (scope of statute "is an issue of statutory interpretation over which we exercise plenary review"); Pasco Common Condominium Assn., Inc. v. Benson , 192 Conn. App. 479, 489, 218 A.3d 83 (2019) (applying plenary review to trial court's interpretation of statute of limitations governing special defense). Thus, whether a successful fax transmission constitutes personal delivery under § 52-593a (a) presents a question of statutory construction over which our review is plenary.

"In determining the meaning of a statute, we look first to the text of the statute and its relationship to other statutes. General Statutes § 1-2z. If the text of the statute is not plain and unambiguous, we may consider extratextual sources of information such as the statute's legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and [common-law] principles governing the same general subject matter .... Our fundamental objective is to ascertain the legislature's intent." (Citation omitted; internal quotation marks omitted.) Chestnut Point Realty, LLC v. East Windsor , 324 Conn. 528, 533, 153 A.3d 636 (2017).

We must keep in mind that "[§] 52-593a (a) 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). "[R]emedial statutes must be afforded a liberal construction in favor of those whom the legislature intended to benefit ...." (Internal quotation marks omitted.) Dorry v. Garden , 313 Conn. 516, 530, 98 A.3d 55 (2014). "Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court.... [Thus] [o]ur practice does not favor the termination of proceedings without a determination of the merits of the controversy whe[n] that can be brought about with due regard to necessary rules of procedure." (Citations omitted; internal quotation marks omitted.) Fedus v. Planning & Zoning Commission , 278 Conn. 751, 769–70, 900 A.2d 1 (2006) ; see also Coppola v. Coppola , 243 Conn. 657, 665, 707 A.2d 281 (1998) ; Snow v. Calise , 174 Conn. 567, 574, 392 A.2d 440 (1978).

We begin with the language of § 52-593a (a), which provides in relevant part that an action will be saved from an expiring statute of limitations "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." (Emphasis added.) We first observe...

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