Ribeiro v. Fasano, Ippolito & Lee, P.C.

• Decision Date: 02 June 2015
• Docket Number: AC36385
• Court: Connecticut Court of Appeals
• Parties: RIBEIRO v. FASANO, IPPOLITO & LEE, P.C.

RIBEIRO v. FASANO, IPPOLITO & LEE, P.C.

AC36385

COURT OF APPEALS OF THE STATE OF CONNECTICUT

June 2, 2015

DISSENT

GRUENDEL, J., dissenting. Distilled to its essence, this case concerns a return date that was two days too late. The question presented under the unique facts of this case is one of first impression: may a plaintiff, who properly files a return of service with the court in accordance with General Statutes § 52-46a but later is apprised of a defect with respect to the return date on his writ of summons and complaint, utilize the curative provision of General Statutes § 52-72 to both (1) serve an amended summons and complaint on the defendants, and (2) file that amended summons and complaint with the court nunc pro tunc to ensure compliance with § 52-46a? Because any defects with respect to legal process in this case are technical in nature, rather than substantive, and mindful of this court's obligation to strictly construe that remedial statute in favor of the plaintiff, I would answer that query in the affirmative. Accordingly, I respectfully dissent from the majority opinion.

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 The plaintiff claims that the court improperly dismissed the action for lack of personal jurisdiction due to his failure to comply with General Statutes § 52-48 (b).

The underlying facts are not disputed. The plaintiff's complaint alleges that the plaintiff and the law firm of Fasano, Ippolito & Lee, P.C. (law firm), entered into a contract whereby Attorney Alphonse Ippolito agreed to represent the plaintiff in connection with the purchase and development of real property known as 339 Greene Street in New Haven (property). The complaint further alleged that pursuant to the contract, the law firm and Ippolito agreed to secure, inter alia, an easement from an adjacent property located at 329 Greene Street to enable the plaintiff "to tap into and use the existing water and sewer lines and pipes" that ran through that property. Ippolito and the law firm represented the plaintiff at the March 29, 2007 closing on the property. At that time, the owner of the adjacent property executed a utility easement that Ippolito had drafted. That owner thereafter refused to allow the plaintiff to tap into the water and sewer lines that transect its property. In so doing, it relied on the language contained in the utility easement drafted by Ippolito.

This civil action followed. The plaintiff's complaint consisted of three counts. The first count sounds in breach of contract against the law firm and Ippolito. In the second and third counts, the plaintiff alleged that because the law firm and Ippolito also "represented theinterests of and acted as and were the agents for" the defendants "at all times in connection with their representation of [the plaintiff] and in connection with [his] financing and purchase of the property," the defendants were "liable to [him] for the damages he sustained as a result of the breaches, errors and/or omissions committed" by the law firm and Ippolito.

The plaintiff's writ of summons and complaint were dated March 26, 2013. The return date specified on that summons and complaint was May 28, 2013. It is undisputed that the return date exceeded by two days the two month time period set forth in § 52-48 (b).² The plaintiff then filed his return of service with the Superior Court on May 21, 2013. In so doing, he fully complied with § 52-46a, as that filing was made more than six days prior to the specified return date.³

On June 26 and June 27, 2013,⁴ the defendants filed respective motions to dismiss the action for lack of jurisdiction, claiming that the return date specified on the plaintiff's summons failed to comply with the requirements of § 52-48 (b).⁵ In response, the plaintiff filed a request for leave to "amend, serve and file" legal process pursuant to § 52-72.⁶ That request was twofold in nature, as the plaintiff sought to avail himself of that remedial statute to simultaneously (1) serve on the defendants an amended writ of summons and complaint that revised the return date to May 21, 2013, and (2) file that amended writ of summons and complaint "nunc pro tunc on May 14, 2013 . . . ."⁷ (Emphasis omitted.) The defendants opposed that request. The court heard argument on the plaintiff's request on September 23, 2013.

In its November 29, 2013 memorandum of decision, the court acknowledged the plaintiff's claim that § 52-72 (a) "gives him the opportunity to amend the return date of his writ of summons and complaint nunc pro tunc because the language [of that statute] implies that [it] covers both defects in the return date as well as defects in the date of the return of the writ of summons and complaint." (Emphasis omitted.) The court nevertheless did not explicitly decide the propriety of that claim. Instead, the court reasoned that "[i]n the present case . . . process was signed . . . 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 in § 52-48 (b). The plaintiff then returned process to this court on May 21, 2013, in compliance with § 52-46a,⁸ as May 21 is at least six days prior to the return date of May 28, 2013. The return of process 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 stated in § 52-48 (a), moving the May 28 [return] date back one week to a Tuesdaywould make the return date fall on May 21, the same date as the return of process, resulting in noncompliance with § 52-46a. Also, if the return date is to be pushed forward to the following Tuesday, or 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 compliance with the requirements of both § 52-48 (b) and § 52-46a." (Footnote added.) The court thus granted the motions to dismiss, concluding that it lacked personal jurisdiction over the defendants. From that judgment, the plaintiff appealed to this court.

I

At the outset, I note that although the record before us does not contain an explicit ruling on the plaintiff's request to file his amended return of process "nunc pro tunc on May 14, 2013"; (emphasis omitted); the plaintiff in his principal appellate brief submits—and the defendants do not disagree—that the court implicitly denied that request in its memorandum of decision. I agree. Indeed, the court's memorandum of decision can only be read to include such a denial. The return date specified on the plaintiff's summons did not comply with § 52-48 (b), as it fell outside the two month period specified therein. Under Connecticut law, a party is entitled to amend a defective return date pursuant to § 52-72; Coppola v. Coppola, 243 Conn. 657, 664-67, 707 A.2d 281 (1998); though "[a]mended process must still comply with § 52-46a and be returned at least six days before the return date." Id., 666 n.11. Accordingly, if the court had granted the plaintiff's request to file his amended return of process nunc pro tunc on May 14, 2013, his amendment of the return date to May 21, 2013, would have resulted in compliance with § 52-46a.

It nevertheless remains that the court specifically found that, even if the return date was amended pursuant to § 52-72, "there is no date to which the court can amend the return date and remain in compliance with the requirements of both § 52-48 (b) and § 52-46a." Mindful that, in the face of a silent record, "we presume that the trial court, in rendering its judgment . . . undertook the proper analysis of the law"; S & S Tobacco & Candy Co. v. Greater New York Mutual Ins. Co., 224 Conn. 313, 322, 617 A.2d 1388 (1992); I agree with the parties that a denial of the plaintiff's request to file his amended summons and complaint nunc pro tunc emanates from the court's memorandum of decision. Absent such a ruling, the court could not have determined that § 52-72 did not operate to save the plaintiff's action against the defendants. See Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618,626, 642 A.2d 1186 (1994) (curative provision of § 52-72 [a] "is mandatory rather than directory"); Olympia Mortgage Corp. v. Klein, 61 Conn. App. 305, 309-10, 763 A.2d 1055 (2001) (§ 52-72 cured defect in process made returnable more than two months from date of service of process).

II

The plaintiff contends that the court improperly determined that it lacked personal jurisdiction over the defendants due to his noncompliance with § 52-48 (b). Our Supreme Court has stated that "[a] defect in process . . . such as an improperly executed writ, implicates personal jurisdiction . . . ." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004). "Because a challenge to the personal jurisdiction of the trial court is a question of law, our review is plenary." Myrtle Mews Assn., Inc. v. Bordes, 125 Conn. App. 12, 15, 6 A.3d 163 (2010).

With that standard in mind, I turn to the unique procedural facts of this case. In response to the motions to dismiss filed by the defendants predicated on a defective return date, the plaintiff sought leave, pursuant to § 52-72, to simultaneously (1) serve an amended summons and complaint on those parties, and (2) file that amended summons and complaint with the court nunc pro tunc. The defendants concede, consistent with established precedent, that the plaintiff is...