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

• Decision Date: 02 June 2015
• Docket Number: No. 36385.,36385.
• Citation: 157 Conn.App. 617,117 A.3d 965
• Court: Connecticut Court of Appeals
• Parties: Nino RIBEIRO v. FASANO, IPPOLITO AND LEE, P.C., et al.

157 Conn.App. 617

117 A.3d 965

Nino RIBEIRO

v.FASANO, IPPOLITO AND LEE, P.C., et al.

No. 36385.

Appellate Court of Connecticut.

Argued Jan. 21, 2015.

Decided June 2, 2015.

Stephen E. Pliakas, Waterbury, for the appellant (plaintiff).

Tiziana M. Scaccia, Hartford, for the appellees (defendant Fidelity National Title Insurance Company et al.).

Elizabeth T. Timkovich, with whom, on the brief, was Pierre–Yves Kolakowski, Greenwich, for the appellee (defendant Bank of America, N.A.).

GRUENDEL, LAVINE and ALVORD, Js.

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, therefore, 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 addition, the complaint alleged that at the time of the plaintiff'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 Insurance 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 complaint 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 jurisdiction 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 violation 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 process 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 Statutes § 52–46a provides, in relevant part, that “[p]rocess in civil actions ... shall be returned ... to the Superior 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) provides: “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 defendants' 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 whenever possible. Id., at 665, 707 A.2d 281.

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., at 661–62, 707 A.2d 281. “A return date may be amended but it still must comply with the time limitations 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., at 666–67, 707 A.2d 281.

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 noncompliance 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 compliance 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 improperly 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. at 665, 707 A.2d 281, precludes his proposed amendments to process.³ The plaintiff also claims that the judgment dismissing 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 ultimate 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 resolution 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]...