Johnson v. Preleski ( 2020 )

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ANTHONY JOHNSON v. BRIAN PRELESKI,
STATE’S ATTORNEY
(SC 20104)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
Pursuant to statute (§ 52-593a (a)), ‘‘a cause or right of action shall not be
lost . . . if the process to be served is personally delivered to a state
marshal’’ before the expiration of the applicable statute of limitations
and the process is served within thirty days of such delivery.
The petitioner, who had been convicted of the crime of murder, filed a
petition for a new trial based on a claim of newly discovered evidence.
The respondent state’s attorney asserted as a special defense that the
petition was time barred because the petitioner did not serve the petition
on him until August 6, 2014, which was one day after the three year
statutory (§ 52-582) limitation period for filing such petitions had
expired. Thereafter, the trial court conducted an evidentiary hearing at
which the office manager for the petitioner’s attorney, P, testified that,
at 4:59 p.m. on August 5, 2014, the final day of the limitation period,
she had sent the petition by facsimile to the office of a state marshal,
L, for service on the respondent. The petitioner also introduced into
evidence the facsimile cover sheet, in which P instructed L to make
service as soon as possible, as well as the facsimile transmission report,
which indicated that the petition had been successfully delivered to L’s
fax machine at 5:01 p.m. on August 5, 2014. Although the facsimile
transmission report indicated that the petition was successfully transmit-
ted to L’s office on August 5, 2014, and L served the respondent on
August 6, 2014, L could not recall whether he had been in the office or
if he personally had handled the petition on August 5, 2014. The trial
court concluded that the petitioner failed to establish that he had served
the petition on the respondent prior to the expiration of the statute
of limitations because there was no proof that the process had been
‘‘personally delivered’’ to L on August 5, 2014, for purposes of § 52-593a
(a). The court reasoned that L did not endorse the date of delivery on
the return of service and that the petitioner provided no authority for the
proposition that sending process to a marshal by facsimile constitutes
personal delivery under § 52-593a (a). Accordingly, the trial court ren-
dered judgment dismissing the petition, and the petitioner appealed to
the Appellate Court, which agreed with the trial court that sending the
petition by facsimile to a marshal did not constitute personal delivery
sufficient to save the otherwise untimely petition under § 52-593a (a).
On the granting of certification, the petitioner appealed to this court.
Held that the petitioner presented sufficient evidence to establish that,
by successfully sending the petition to L by facsimile on August 5, 2014,
the process was personally delivered to a marshal within the meaning
of § 52-293a (a) prior to the expiration of the applicable limitation period,
and, accordingly, the Appellate Court incorrectly concluded that § 52-
593a did not save the petition from dismissal: because the language of
§ 52-293a (a) was ambiguous as to whether a successful transmission of
process by facsimile constitutes personal delivery, this court considered
extratextual sources, including the statute’s legislative history, and, fol-
lowing a consideration of case law interpreting the term ‘‘personal deliv-
ery,’’ concluded that delivery of process via facsimile is not excluded
as a proper method of personal delivery, as allowing a petitioner to
satisfy the personal delivery requirement by sending process to a marshal
by facsimile was consistent with the remedial purpose of the statute,
which was to assist plaintiffs in preserving their causes of action, as long
as process is delivered to a marshal for service prior to the expiration
of the applicable statute of limitations; moreover, there was sufficient,
circumstantial evidence to establish that the process was personally
delivered to L prior to the expiration of the applicable limitation period,
including P’s testimony that she sent the process to L on the final day
of the limitation period, the facsimile transmission report confirming
delivery of the petition to L’s fax machine on that date, the facsimile
cover sheet instructing L to serve the process as soon as possible, and
the fact that L served the process on the respondent the day after it
was transmitted to L’s office.
(Three justices dissenting in one opinion)
Argued February 22, 2019—officially released March 24, 2020**
Procedural History
Petition for a new trial following the petitioner’s con-
viction of the crime of murder, brought to the Superior
Court in the judicial district of New Britain, where the
respondent asserted a special defense; thereafter, the
case was tried to the court, Young, J.; judgment dismiss-
ing the petition, from which the petitioner appealed to
the Appellate Court, DiPentima, C. J., and Keller and
Beach, Js., which affirmed the trial court’s judgment,
and the petitioner, on the granting of certification,
appealed to this court. Reversed; judgment directed.
Norman A. Pattis, for the appellant (petitioner).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, and Christian M. Watson, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
ROBINSON, C. J. The sole issue in this certified
appeal is whether a successful facsimile (fax) transmis-
sion constitutes personal delivery under General Stat-
utes § 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 judg-
ment 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. John-
son 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. John-
son, 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 peti-
tion 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 per-
sonal 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 expira-
tion 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 dis-
missing 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 consti-
tute personal delivery sufficient to save the petition for
a new trial under § 52-593a (a). Johnson v. Preleski,
supra, 174 Conn. App. 295–98. The Appellate Court rea-
soned 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., 297. 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 consti-
tuted 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 treat-
ing 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 sav-
ings 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 respon-
dent’s strict interpretation of § 52-593a (a) and conclude
that evidence of a successful fax transmission of pro-
cess to a state marshal’s fax machine prior to the lapse
of the statute of limitations constitutes personal deliv-
ery that will afford a plaintiff the benefit of that sav-
ings statute.
Whether the trial court properly interpreted § 52-593a
(a) in connection with the respondent’s statute of limita-
tions 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 Condomin-
ium 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 trans-
mission 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 gen-
eral 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 reme-
dial 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). ‘‘Con-
necticut law repeatedly has expressed a policy prefer-
ence 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 determi-
nation 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 Commis-
sion, 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 that the plain language of the statute does not
preclude the use of a fax machine or any other method
to deliver process to the marshal but, rather, is silent
about what constitutes the requisite personal delivery.
We previously have concluded that § 52-593a (a), ‘‘taken
as a whole,’’ is ambiguous ‘‘regarding the requirements
relating to delivery of process to the marshal.’’ Tayco
Corp. v. Planning & Zoning Commission, 294 Conn.
673, 681, 986 A.2d 290 (2010). For example, one reason-
able interpretation of the phrase personal delivery could
require a physical, in hand transfer of the process docu-
ments to the state marshal. The Appellate Court, how-
ever, has held that an in person handoff is not required
to comply with the savings statute. See Gianetti v.
Connecticut Newspapers Publishing Co., supra, 136
Conn. App. 73–74 (‘‘[a]lthough delivery by mail is not
mentioned in the [savings] statute, such delivery is not
precluded’’ (internal quotation marks omitted)). We
agree with this reasoning and conclude that, for pur-
poses of § 52-593a (a), delivery of the process via fax
is not excluded as a proper personal delivery method
as a matter of law.
Given the ambiguity in the text of the statute, we next
consider extratextual sources in determining whether
a successful fax transmission constitutes personal
delivery under § 52-593a (a). We turn first to the stat-
ute’s legislative history. The legislature enacted § 52-
593a in 1967; Public Acts 1967, No. 890;8 to assist plain-
tiffs in preserving their causes of action so long as they
deliver the process to the marshal for service prior to
the expiration of the applicable statute of limitations.
Speaking in support of the bill that became § 52-593a,
Representative John W. Boyd stated: ‘‘[T]his bill is for
the purpose of, in a small way, extending the statute
of limitations of causes of action. It does so by providing
that, in the event that the complaint or other process,
is personally delivered to the officer who will make
service within the time limited by law . . . the period
will be extended for [fifteen] days for the officer to
make such service.’’ 12 H.R. Proc., Pt. 7, 1967 Sess., p.
2798. Senator John F. Pickett described the savings
statute as intended to remedy ‘‘[t]he problem [of] when
a statute of limitation[s] is about to expire and the
sheriff get[s] a copy of the [process] from [counsel]’’
by allowing the sheriff to serve it within the extra time
allotted ‘‘if necessary.’’9 12 S. Proc., Pt. 5, 1967 Sess., p.
2117. In 2003, the legislature amended the savings stat-
ute to afford marshals thirty days, rather than the origi-
nal fifteen, to serve the process after receipt. Public Acts
2003, No. 03-224, § 14. The president of the Connecticut
State Marshal’s Association, Inc., Robert S. Miller, sub-
mitted written testimony to the Judiciary Committee in
support of this amendment, suggesting that the exten-
sion of time for service to thirty days was intended to
‘‘lessen the intense pressure on the [m]arshal to get
it served on time and [to] save the suit from being
dismissed.’’ Conn. Joint Standing Committee Hearings,
Judiciary, Pt. 6, 2003 Sess., p. 1964; see, e.g., Hatt v.
Burlington Coat Factory, 263 Conn. 279, 314, 819 A.2d
260 (2003) (‘‘[I]t is now well settled that testimony
before legislative committees may be considered in
determining the particular problem or issue that the
legislature sought to address by the legislation. . . .
This is because legislation is a purposive act . . . and,
therefore, identifying the particular problem that the
legislature sought to resolve helps to identify the pur-
pose or purposes for which the legislature used the
language in question.’’ (Internal quotation marks
omitted.)).
In light of this legislative history, allowing the peti-
tioner in the present case to satisfy the personal delivery
requirement via successfully faxing process to the state
marshal for service is consistent with the statute’s reme-
dial purpose, especially given the imminently expiring
statute of limitations for his petition for a new trial.
‘‘Section 52-593a (a) . . . represents a balance
between two public policies enunciated by both the
legislature and this court regarding statutes of limita-
tion[s] and requirements for service of process. Statutes
of limitation[s] implement the public policy of limiting
the legal consequences of a wrong to a reasonable time
after an event occurs. . . . Proper service of process,
in comparison, promotes the public policy of ensuring
actual notice to defendants.’’ (Citations omitted.) Tayco
Corp. v. Planning & Zoning Commission, supra, 294
Conn. 684–85. Put differently, permitting the petitioner
to deliver process by fax on the last day of the limitation
period does not impermissibly grant him extra time
with which to prepare his action.10 See id., 686 (‘‘§ 52-
593a (a) does not give the litigant time beyond the
statute of limitations in which to deliver process to the
marshal for service’’ (emphasis in original)).
Allowing a plaintiff to fax process to a marshal for
service is consistent with other Connecticut courts’ pre-
vious interpretations of the phrase ‘‘personally deliv-
ered’’ in § 52-593a (a).11 We find particularly instructive
the Appellate Court’s decision in Gianetti v. Connecti-
cut Newspapers Publishing Co., supra, 136 Conn. App.
67. In Gianetti, the Appellate Court held that, although
the plaintiff mailed the process to the marshal before
the statute of limitations expired, this mailing was not
sufficient to demonstrate that the marshal had received
it before the statute of limitations had terminated. Id.,
73–74. The Appellate Court emphasized that, although
mailing is an acceptable form of delivery, ‘‘the determi-
native standard is when the marshal receives the pro-
cess, not when it is mailed.’’ (Emphasis added.) Id.,
73. According to the Appellate Court in Gianetti, ‘‘the
plaintiff must get the process to the serving officer
within the period allowed by the statute’’ in order to
satisfy the delivery requirement.12 Id.
The circumstances surrounding delivery in Gianetti
are distinguishable from the present case. Delivery by
fax is more akin to in hand delivery than the first class
mail at issue in Gianetti because the time, date, and
success of a fax transmission are confirmed near instan-
taneously, whereas delivery by mail necessarily takes
more time, and the date of delivery is not necessarily
certain.13 In contrast to first class mail, faxing the pro-
cess to a marshal’s fax machine provides confirmation
of whether it was received, along with the date and
time of receipt.14 The inherent reliability of the delivery
confirmation provided by the fax machine avoids the
problem with mail delivery identified in Gianetti, in
which the Appellate Court observed that, ‘‘where a
delivery of process is to be made by mail, it has not
been personally delivered until it has been received in
person by the serving officer, at which point he can so
attest.’’15 (Internal quotation marks omitted.) Id., 74.
A more flexible interpretation of § 52-593a (a) that
permits personal delivery by successful fax transmis-
sion also is consistent with the analysis of § 52-593a
(b) in our recent decision in Doe v. West Hartford, 328
Conn. 172, 177 A.3d 1128 (2018). In Doe, we concluded
that the endorsement provision of § 52-593a (b), which
affords plaintiffs a convenient method to ensure that
‘‘the timeliness of delivery [to the marshal] may be
ascertained,’’ is directory rather than mandatory. Id.,
186–87. We observed that, because endorsement by the
marshal is not required, the statute leaves room to allow
other modes of communication to satisfy the delivery
requirement. ‘‘[P]ermitting a plaintiff to prove timely
delivery of process to a marshal by means other than
the statutorily directed endorsement would not result in
an unjust windfall but, rather, assuming that timeliness
could be shown by other evidence, simply would enable
the plaintiff to take advantage of a protection that the
legislature sought to provide to him, at no expense to
the opposing party.’’16 (Emphasis added.) Id., 186. Thus,
under Doe, plaintiffs may prove delivery of process to
the marshal by other methods beyond the endorsement
prescribed by § 52-593a (b).17 If endorsement of the date
of delivery is not mandatory, it follows that plaintiffs
should not be penalized if, in the absence of an endorse-
ment, they can prove delivery by other evidence. See
id., 190–92 (summary judgment was improper because
testimony of plaintiff’s counsel provided circumstantial
evidence of timely delivery).
Accordingly, we agree with the petitioner that he has
satisfied the requirement of timely personal delivery
under § 52-593a (a) by providing sufficient, circumstan-
tial evidence of receipt of the process by the marshal.
Specifically, Peat testified that she sent the process to
the marshal on the last day prior to the lapse of the
statute of limitations. She sent the fax at 4:59 p.m., and
it was received two minutes later by the marshal’s fax
machine. The petitioner introduced into evidence both
the fax cover sheet from his attorney’s office and the
transmission report demonstrating successful delivery
to Lilley’s office on August 5, 2014. See footnote 5 of
this opinion. Because the fax transmission was in the
marshal’s office, it was, in essence, delivered into his
constructive possession. See Black’s Law Dictionary
(11th Ed. 2019) p. 1408 (defining ‘‘constructive posses-
sion’’ as ‘‘[c]ontrol or dominion over a property without
actual possession or custody of it’’). The petitioner elic-
ited further circumstantial evidence of timely delivery
in that Lilley served the respondent the following day,
as directed by the petitioner’s attorney, thereby giving
the respondent notice of the action well within the time
period allowed by § 52-593a. As the Appellate Court
concluded in Gianetti v. Connecticut Newspapers Pub-
lishing Co., supra, 136 Conn. App. 73, possession of
process by the marshal is all that is necessary to estab-
lish compliance with the statute. The manner in which
the process is delivered to the marshal is not relevant,
as long as the petitioner has shown that he has delivered
the process within the prescribed limitation period. The
petitioner, therefore, has sufficiently demonstrated that
the marshal received personal delivery of the process
in compliance with the savings statute.18
The respondent argues, however, that the petitioner’s
inability to prove that anyone actually was present in
the marshal’s office at the time of receipt defeats the
petitioner’s claim. We disagree. This argument is incon-
sistent with our recent decision in Doe v. West Hartford,
supra, 328 Conn. 172, in which we inferred the marshal’s
timely possession of process on the basis of circumstan-
tial evidence.19 In Doe, the marshal neither endorsed
the return of service nor testified to the date he received
the process. Id., 177–78. Instead, the court relied on an
affidavit and deposition testimony from the plaintiff’s
attorney, in which he averred that the marshal had
received the summons and complaint prior to the expi-
ration of the statute of limitations and that his office
staff and the marshal himself had confirmed to him
that the marshal had retrieved the process within the
limitation period. Id., 178, 188–89. We held that this
affidavit and deposition testimony, among other facts,
such as the attorney’s leaving the process on the counter
near his office manager’s desk for retrieval by the mar-
shal in accordance with his office’s usual procedure,
and the fact that the process was no longer on the
counter later that day, was sufficient, circumstantial
evidence to defeat a motion for summary judgment. Id.,
188–89, 194–95.
In the present case, as in Doe, circumstantial evidence
establishes timely possession by the marshal. Although
the facts in Doe showed receipt by the marshal himself,
there is sufficient proof presented here to infer receipt
by the marshal’s office. As we have discussed, success-
ful delivery into the actual or constructive possession
of the marshal (whether to the marshal’s agent or his
office) is sufficient to meet the statute’s requirements.
The lack of direct evidence as to when the process was
physically in Lilley’s hands does not render the delivery
of the process untimely for lack of evidence of personal
delivery, especially given the circumstantial evidence
supporting the inference that Lilley’s office received it
on time, namely, the time and date stamps on the fax
cover sheet and the transmission report; see footnote
5 of this opinion; and the fact that he served the process
on the respondent the very next day. We therefore dis-
agree with the trial court’s determination, upheld by
the Appellate Court, that there was an ‘‘absence of any
evidence that the marshal received the process on the
date it was faxed . . . .’’ (Internal quotation marks
omitted.) Johnson v. Preleski, supra, 174 Conn. App.
291–92. Accordingly, the Appellate Court incorrectly
concluded that § 52-593a did not save the petition from
dismissal as time barred.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for further proceedings according
to law.
In this opinion PALMER, D’AURIA and ECKER,
Js., concurred.
* This appeal originally was argued before a panel of this court consisting
of Chief Justice Robinson and Justices McDonald, D’Auria, Mullins, Kahn
and Ecker. Thereafter, Justice Palmer was added to the panel and has read
the briefs and appendices, and listened to a recording of the oral argument
prior to participating in this decision.
** March 24, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes § 52-593a provides: ‘‘(a) Except in the case of an appeal
from an administrative agency governed by section 4-183, a cause or right
of action shall not be lost because of the passage of the time limited by law
within which the action may be brought, 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.
‘‘(b) In any such case, the officer making service shall endorse under oath
on such officer’s return the date of delivery of the process to such officer
for service in accordance with this section.’’
2
We granted the petitioner’s petition for certification to appeal, limited
to the following issue: ‘‘Did the Appellate Court correctly affirm the trial
court’s dismissal of the . . . petition for a new trial for failure to satisfy
the ‘personal delivery’ requirement of . . . § 52-593a?’’ Johnson v. Preleski,
328 Conn. 925, 925–26, 182 A.3d 83 (2018).
3
General Statutes § 52-270 provides: ‘‘(a) The Superior Court may grant
a new trial of any action that may come before it, for mispleading, the
discovery of new evidence or want of actual notice of the action to any
defendant or of a reasonable opportunity to appear and defend, when a just
defense in whole or part existed, or the want of actual notice to any plaintiff
of the entry of a nonsuit for failure to appear at trial or dismissal for
failure to prosecute with reasonable diligence, or for other reasonable cause,
according to the usual rules in such cases. The judges of the Superior Court
may in addition provide by rule for the granting of new trials upon prompt
request in cases where the parties or their counsel have not adequately
protected their rights during the original trial of an action.
‘‘(b) An affidavit signed by any party or his or her attorney shall be
presumptive evidence of want of actual notice.’’
4
The statute of limitations for this action; see General Statutes § 52-582
(a); expired three years after the petitioner’s sentencing on August 5, 2011.
See Summerville v. Warden, 229 Conn. 397, 426, 641 A.2d 1356 (1994) (‘‘[t]he
three year period begins to run from the date of rendition of judgment by
the trial court . . . which, in a criminal case, is the date of imposition of
the sentence by the trial court’’ (citation omitted)).
5
As the Appellate Court noted, the trial court admitted into evidence
‘‘both a fax cover sheet and a document entitled ‘TX Result Report.’ Both
documents reflected the time ‘17:01’ on August 5, 2014. . . . [T]he message
section of the fax cover sheet, which was signed by Peat and dated August
5, 2014, provides in relevant part: ‘Please make service of the attached ASAP.
Also, please confirm receipt. I will mail the originals.’ ’’ (Emphasis omitted.)
Johnson v. Preleski, supra, 174 Conn. App. 288 n.4.
6
The parties agreed that the petition would have been time barred by
§ 52-582 unless the process was personally delivered to Lilley by August 5,
2014, thus giving the petitioner the benefit of the savings statute, § 52-593a.
In arguing that the successful fax transmission on August 5, 2014, constituted
personal delivery under § 52-593a, thereby rendering his action timely, the
petitioner argued that lower courts have construed the endorsement require-
ment under § 52-593a (b) as directory rather than mandatory, and that
§ 52-593a is remedial and should be interpreted liberally for the benefit of
plaintiffs like the petitioner.
7
The Appellate Court, in its description of the case’s procedural history,
described the hearing before the trial court as ‘‘a hearing on the motion to
dismiss’’ rather than a hearing on the respondent’s special defenses. Johnson
v. Preleski, supra, 174 Conn. App. 288. Our description of the procedural
history in this opinion reflects that the trial court dismissed the petition on
the basis of the respondent’s special defense rather than on the motion to
dismiss, which remains pending.
8
Number 890 of the 1967 Public Acts provides: ‘‘No cause or right of
action shall be lost because of the passage of the time limited by law within
which such action may be brought, if the process to be served is personally
delivered to an officer authorized to serve such process or is personally
delivered to the office of any sheriff within the time limited by law, and
such process is served, as provided by law, within fifteen days of such
delivery. In any such case the officer making such service shall endorse
under oath on his return the date of delivery of such process to him for
service in accordance with this act.’’
9
This court has described § 52-593a as ‘‘intended to prevent a party from
losing the right to a cause of action because of untimely service on the part
of the marshal by giving the marshal additional time in which to effect
proper service on the party in question.’’ (Emphasis in original.) Tayco Corp.
v. Planning & Zoning Commission, supra, 294 Conn. 682; see also Mario
v. Conservation Commission, 33 Conn. Supp. 172, 173, 367 A.2d 698 (1976)
(‘‘In 1967, the legislature recognized the injustice that might result if a sheriff,
through inattention, oversight or lack of time, failed to serve papers [on]
time. It gave the sheriff a grace period of fifteen additional days.’’).
10
The dissent argues that, because the text of the statute as originally
enacted included the word ‘‘office,’’ which the legislature subsequently
removed in 2000 in No. 00-99, §§ 116 and 138, of the 2000 Public Acts, the
legislature could not have intended ‘‘for delivery to the marshal’s place of
business to constitute personal delivery . . . .’’ We disagree. The legisla-
ture’s removal of the word ‘‘office’’ in conjunction with the word ‘‘sheriff’’
was not intended to govern the means and method of delivery but, instead,
implemented a then proposed constitutional amendment eliminating the
office of the High Sheriff in Connecticut, which resulted in the creation of
the state marshal system and changed, inter alia, the entity responsible for
process serving in Connecticut. Senator Donald E. Williams, Jr., explained
the bill’s purpose: ‘‘[W]e have before us today the bill which would delve
into the substance of reforming the current sheriff system. . . . [I]f the
voters agree that the office of the High Sheriff is to be abolished and deleted
from the state constitution, at that time this bill will take effect.’’ 43 S. Proc.,
Pt. 5, 2000 Sess., pp. 1598–99. In creating the state marshal system and
implementing the constitutional amendment, this bill necessarily eliminated
the ‘‘office’’ of the High Sheriff as a physical and governmental entity where
court papers could be delivered for service by sheriffs or deputy sheriffs.
See Legislative Program Review and Investigations Committee, Connecticut
General Assembly, Connecticut Sheriffs System (February, 2000) pp. 3–4,
43 (describing duties of sheriffs and deputy sheriffs as process servers).
Put differently, this change to the statute speaks more to the implementation
of the constitutional amendment than to the permissible method of delivery.
We also note that the dissent agrees that § 52-593a functions as a remedial
statute but construes the legislative history as evincing a desire to benefit
marshals rather than plaintiffs. We disagree. Affording the marshal extra
time to serve the process allows a plaintiff to preserve his cause of action
and, accordingly, benefits the plaintiff, not the marshal. As such, the statute
should be liberally construed in the plaintiff’s favor.
11
This construction of ‘‘personally delivered’’ under § 52-593 (a) is not
inconsistent with this court’s decision in Hatt v. Burlington Coat Factory,
supra, 263 Conn. 279, in which we concluded that faxing a decision of the
Workers’ Compensation Commissioner to a party’s attorney did not comply
with the statute requiring notice in workers’ compensation proceedings to
be given by ‘‘written or printed notice, service personally or by registered
or certified mail’’ for purposes of triggering the statutory appeal period.
(Emphasis in original; internal quotation marks omitted.) Id., 294–95; see
also General Statutes § 31-321. The statutory language at issue in the present
case is distinguishable from that in Hatt because § 31-321 uses the term
‘‘service personally’’ rather than ‘‘personally [deliver]’’ as in § 52-593a (a).
But cf. Hatt v. Burlington Coat Factory, supra, 295 (noting that ‘‘the language
of § 31-321 indicates that the legislature considered only personal delivery
and registered or certified letters as acceptable methods of service’’). In
contrast to Hatt, this case does not concern the methods by which the
marshal must ultimately serve the process received. See footnote 17 of
this opinion. Moreover, Hatt is factually distinguishable because it strictly
construed the commissioner’s procedural obligations under § 31-321 in order
to preserve a party’s ‘‘time-sensitive’’ statutory right to appeal. Hatt v. Burl-
ington Coat Factory, supra, 294–95. In contrast, this case involves § 52-
593a, which is a remedial statute that we are asked to construe liberally in
order to protect the timeliness of the plaintiff’s cause of action. See id.,
296–97 (distinguishing case from Compensation Review Board decision hold-
ing that, ‘‘despite the dictates of § 31-321, a party could protect its right to
appeal by faxing a copy of its petition to the board on the [final] day, while
mailing the original and required copies for arrival on the following day’’
(emphasis in original)). Accordingly, Hatt does not control our resolution
of this case.
12
In Gianetti, the Appellate Court further concluded that the plaintiff did
not comply with the statute’s delivery requirements because the marshal
failed to endorse the date of delivery on the return pursuant to § 52-593a
(b). ‘‘The marshal’s return is silent as to when it was received from the
plaintiff, and, thus, does not comply with the provisions of § 52-593a (b).
Although we take no position on whether an amended return or affidavit
of the marshal would have had a curative effect, the plaintiff failed to submit
such an amended return or affidavit confirming receipt prior to June 20,
2006. A plaintiff relying upon a ‘saving statute’ must demonstrate compliance
with its provisions. See Vessichio v. Hollenbeck, 18 Conn. App. 515, 519,
558 A.2d 686 (1989). Because the plaintiff failed to establish a genuine issue
of material fact as to his compliance with the provisions of § 52-593a, the
court properly rendered summary judgment as to count one of the complaint
. . . .’’ (Footnote omitted.) Gianetti v. Connecticut Newspapers Publishing
Co., supra, 136 Conn. App. 74. We note that the Appellate Court’s strict
interpretation of § 52-593a (b) in Gianetti appears inconsistent with our
subsequent conclusion in Doe v. West Hartford, 328 Conn. 172, 186–87,
177 A.3d 1128 (2018), that the endorsement provision is directory rather
than mandatory.
13
Mail or parcel delivery methods that provide confirmation of delivery
upon receipt might well be more akin to a fax than the first class mail in
Gianetti, which did not provide any evidence of when the marshal received
the process. See Gianetti v. Connecticut Newspapers Publishing Co., supra,
136 Conn. App. 74 (‘‘the plaintiff failed to submit . . . an amended return
or affidavit confirming receipt prior to [the end of the limitation period]’’).
14
We note that there is no challenge to the accuracy of the date and time
of the fax transmission.
15
One of the dissent’s criticisms of delivery via fax is that a marshal is
unable to confirm that the copy served is a ‘‘true and attested copy’’; General
Statutes § 52-57 (a); of the original because the marshal does not have the
original. See footnote 5 and accompanying text of the dissenting opinion.
The Appellate Court ordered supplemental briefing on this specific issue:
‘‘Is personal delivery of the original writ, summons and petition, as opposed
to a copy, facsimile, or electronic copy, required by . . . § 52-593a?’’
(Emphasis in original; internal quotation marks omitted.) Johnson v. Pre-
leski, supra, 174 Conn. App. 292 n.7. The Appellate Court did not decide
this question. Id., 293 n.7. In his brief to this court, the respondent claims
that this question ‘‘is effectively moot’’ in the absence of any evidence that
Lilley actually received the process on August 5.
We too decline to reach this issue because it has not been distinctly raised
by either party and the Appellate Court declined to reach it in its review.
See Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., 311 Conn. 123, 164, 84 A.3d 840 (2014) (‘‘our system is an adversarial
one in which the burden ordinarily is on the parties to frame the issues,
and the presumption is that issues not raised by the parties are deemed
waived’’). We note, however, that, although there was no challenge to the
authenticity of the process delivered in this case, nothing in the statute
precludes delivery of a copy to the marshal. As we previously indicated,
delivery via fax does not permit a plaintiff extra time beyond the statute
of limitations. Instead, a fax produces an exact duplicate of the process
transmitted to the marshal. After the marshal receives the fax, a plaintiff
still has time, under the statute, to produce the original so that the marshal
can attest to its accuracy.
Also, the record in this case does not mandate the inference that Lilley
did not have access to the original when he served the process, as he
indicated in his return that he served ‘‘a verified true and attested copy of
the original [w]rit, [s]ummons and [p]etition [f]or [a] [n]ew [t]rial . . . .’’
(Emphasis added.) Moreover, a day passed between receipt of the fax and
actual service. Finally, the respondent did not challenge the service of
process, apart from the timeliness of the delivery to the marshal.
16
We emphasize that our conclusion that the successful fax transmission
of process to the marshal constitutes personal delivery under § 52-593a (a)
does not affect the marshal’s subsequent obligation to serve the process on
the respondent in the manner prescribed by statute. See Tayco Corp. v.
Planning & Zoning Commission, supra, 294 Conn. 685–86 (discussing due
process implications of ‘‘[p]roper service of process, [which] promotes the
public policy of ensuring actual notice to defendants’’); Smith v. Smith,
150 Conn. 15, 20, 183 A.2d 848 (1962) (explaining that, to confer personal
jurisdiction on court, process is served either through ‘‘manual delivery or
by leaving it at [the defendant’s] usual place of abode’’); see also General
Statutes §§ 52-54 and 52-57.
17
The dissent asserts that interpreting the statute to permit delivery to a
marshal by fax will open the door to a parade of horribles including, inter
alia, service of ‘‘a protective order by WhatsApp . . . .’’ We disagree. Our
opinion is limited to the discrete and unique issue of personal delivery under
§ 52-593a and the particular method of delivery by fax transmission; we do
not intend to pass on or approve of the methods for service of process
described by the dissent. We emphasize that service of process in any
circumstance must comport with the due process clause’s actual notice
requirements. ‘‘Proper service of process . . . promotes the public policy
of ensuring actual notice to defendants. . . . [It] gives a court power to
render a judgment which will satisfy due process under the [fourteenth]
amendment of the federal constitution . . . .’’ (Citation omitted; internal
quotation marks omitted.) Tayco Corp. v. Planning & Zoning Commission,
supra, 294 Conn. 685. Delivery to a marshal, however, does not raise similar
concerns because a marshal serves only as a mechanism to effectuate ser-
vice; the marshal is not a party to the case. See Zarillo v. Peck, 33 Conn.
Supp. 676, 678, 366 A.2d 1165 (‘‘Section 52-593a, unlike General Statutes
§ 52-54, the service-of-summons statute, does not spell out how delivery
shall be made. The latter statute, for example, prescribes that service shall
be made by reading the summons and complaint in the hearing of the
defendant or by leaving an attested copy with him or at his usual place of
abode. The purpose of prescribing those modes of service is to ensure actual
notice to the defendant. . . . All that § 52-593a requires, on the other hand,
is that the process be personally delivered.’’ (Citations omitted.)), cert.
denied, 171 Conn. 731, 357 A.2d 515 (1976). If a marshal does not receive
notice, he could not, ipso facto, serve the process in a manner compliant
with due process, and a plaintiff’s case will not proceed. Accordingly, we
disagree that our decision will revolutionize service of process in our state.
18
Although not cited by the parties, our independent research revealed a
recent decision by the Supreme Court of Minnesota that held that a fax
transmission does not constitute personal delivery. Cox v. Mid-Minnesota
Mutual Ins. Co., 909 N.W.2d 540, 546 (Minn. 2018). We respectfully disagree
with the conclusion of our sister state’s high court. As noted by the dissent
in that case, the majority conflates ‘‘ ‘service’ ’’ of process on defendants
with ‘‘ ‘delivery’ ’’ of the process to a sheriff (or state marshal). Id., 549–50
(Anderson, J., dissenting). The majority’s holding in Cox is inconsistent with
the remedial nature of Connecticut’s statute, and, therefore, we are not
persuaded by its reasoning.
19
We note that our decision in Doe was released after the Appellate Court
decided the present case, and, as a result, the Appellate Court lacked the
benefit of our analysis in Doe. See Johnson v. Preleski, supra, 174 Conn.
App. 285.