Prenderville v. Sinclair

• Court: Connecticut Court of Appeals
• Writing for the Court: MULLINS, J.
• Citation: Prenderville v. Sinclair, 164 Conn.App. 439, 138 A.3d 336 (Conn. App. 2016)
• Decision Date: 12 April 2016
• Docket Number: No. 36931.,36931.
• Parties: Charles PRENDERVILLE, Administrator (Estate of Corey Prenderville), et al. v. Christopher SINCLAIR et al.

164 Conn.App. 439

138 A.3d 336

Charles PRENDERVILLE, Administrator (Estate of Corey Prenderville), et al.

v.Christopher SINCLAIR et al.

No. 36931.

Appellate Court of Connecticut.

Argued Dec. 7, 2015.

Decided April 12, 2016.

Tracey E. Hardman, Middletown, for the appellants (plaintiffs).

Diana M. Carlino, with whom, on the brief, was James F. Biondo, for the appellees (defendants).

DiPENTIMA, C.J., and MULLINS and NORCOTT, Js.

MULLINS, J.

The plaintiffs, Charles Prenderville, individually 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 neurologist, 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 process to court on September 9, 2013.

On November 1, 2013, the defendants moved to dismiss the plaintiffs' action on the following grounds: (1) the court lacked personal jurisdiction because the plaintiffs failed to comply with the time limits for service and return of process established by General Statutes §§ 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 apportionment 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 Statutes § 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 permitted to benefit.

In their objection to the motion to dismiss, the plaintiffs 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 statutes, (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 limitations 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 amendment 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 amendment 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 challenge the court's statutory construction, they present an issue of law over which our review is plenary. Marchesi 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 circumstantial 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 providing that no proceeding shall be abated for circumstantial 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, (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 Commission, 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 concluded that § 52–72 and Coppola did not permit amendment 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 determined 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. at 665, 707 A.2d 281. 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...