Connecticut Center for Advanced Technology, Inc. v. Bolton Works, LLC ( 2019 )

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CONNECTICUT CENTER FOR ADVANCED
TECHNOLOGY, INC. v. BOLTON
WORKS, LLC
(AC 41225)
Keller, Elgo and Bishop, Js.
Syllabus
The plaintiff landlord sought, by way of summary process, to regain posses-
sion of certain premises that it had leased to the defendant tenant. The
plaintiff commenced the action by service of process, with the summons
and complaint having a return date of October 26, 2017, and returned
process to the court on October 24, 2017. The defendant subsequently
filed a motion to dismiss for lack of jurisdiction, claiming that the
plaintiff had failed to comply with the statute (§ 47a-23a) that requires
that process in a summary process action be returned to court at least
three days before the return date. In response, on November 15, 2017,
the plaintiff served on the defendant and returned to the court an
amended writ of summons and complaint with a new return date of
November 24, 2017. The defendant moved to dismiss the amended com-
plaint on the grounds that the plaintiff’s original failure to return process
at least three days before the return date had deprived the court of
jurisdiction and that that defect in service could not be cured by amend-
ing the return date. The trial court denied the motion to dismiss, conclud-
ing that the plaintiff properly had amended the complaint and the return
date to comply with § 47a-23a pursuant to the statute (§ 52-72) that
allows for the proper amendment of civil process that, for any reason,
is defective. The court thereafter rendered judgment of possession in
favor of the plaintiff, from which the defendant appealed to this court.
Held that the trial court properly denied the defendant’s motion to
dismiss the amended complaint; contrary to the defendant’s claim, our
Supreme Court has clarified that § 52-72 permits the amendment of civil
process to correct an improper return date regardless of whether the
correct return date has passed, as that statute contains no language
limiting its applicability to amendments sought before the passage of
the correct return date, and that summary process actions constitute
civil actions that fall within the scope of § 52-72, and, accordingly, the
plaintiff properly amended the return date so as to comply with the
mandatory process requirements of § 47a-23a.
Argued March 5—officially released August 13, 2019
Procedural History
Summary process action brought to the Superior
Court in the judicial district of Hartford, Housing Ses-
sion, where the court, Shah, J., denied the defendant’s
motion to dismiss; thereafter, the matter was tried to
the court; judgment for the plaintiff, from which the
defendant appealed to this court. Affirmed.
Joshua C. Shulman, for the appellant (defendant).
Natalie J. Real, with whom was Pat Labbadia III,
for the appellee (plaintiff).
Opinion
BISHOP, J. The issue in this appeal is whether, pursu-
ant to General Statutes § 52-72,1 the return date of a
summary process complaint can be amended to correct
the plaintiff’s failure to return the complaint at least
three days before the return date as required by General
Statutes § 47a-23a.2 The defendant, Bolton Works, LLC,
appeals from the judgment of possession rendered by
the trial court in favor of the plaintiff, Connecticut Cen-
ter for Advanced Technology, Inc. The defendant claims
that the trial court improperly concluded that § 52-72
permits the amendment of the return date in the context
of summary process actions and that the court therefore
erred in denying its motion to dismiss the plaintiff’s
amended complaint for failure to comply with § 47a-
23a. We disagree and, accordingly, affirm the judgment
of the trial court.
The following procedural history is relevant to our
resolution of the defendant’s appeal. The plaintiff
brought a summary process action against the defen-
dant alleging termination of the lease by lapse of time.
The writ of summons and complaint were dated Octo-
ber 17, 2017, with a return date of October 26, 2017.
Following service on the defendant, the plaintiff
returned the process on October 24, 2017—two days
before the return date. The defendant subsequently filed
a motion to dismiss on the ground that the process was
not returned at least three days prior to the return date
as required by § 47a-23a.
To satisfy the three day requirement of § 47a-23a, the
plaintiff, on November 15, 2017, filed and served an
amended writ of summons and complaint with a return
date of November 24, 2017. In response, the defendant
filed a motion to dismiss the plaintiff’s amended com-
plaint on December 4, 2017, arguing that the failure to
return the complaint in a summary process action in
compliance with § 47a-23a cannot be cured by amend-
ment and, therefore, the plaintiff’s action was still sub-
ject to dismissal. The court denied this motion on
December 12, 2017, concluding that the plaintiff had
properly amended its complaint and the return date
pursuant to § 52-72 so as to comply with § 47a-23a. The
court subsequently rendered judgment of possession
in favor of the plaintiff on December 28, 2017. This
appeal followed.
On appeal, the defendant claims that the trial court
improperly concluded that § 52-72 permits the amend-
ment of the return date in the context of summary
process actions and that the court therefore erred in
denying its motion to dismiss the plaintiff’s amended
complaint.
The standard of review for a court’s ruling on a
motion to dismiss pursuant to Practice Book § 10-31
(a) (1) is well settled. ‘‘A motion to dismiss tests, inter
alia, whether, on the face of the record, the court is
without jurisdiction. . . . [O]ur review of the court’s
ultimate legal conclusion and resulting [determination]
of the motion to dismiss will be de novo. . . . When
a . . . court decides a jurisdictional question raised
by a pretrial motion to dismiss, it must consider the
allegations of the complaint in their most favorable
light. . . . In this regard, a court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing them in a manner most favorable to the pleader.
. . . The motion to dismiss . . . admits all facts which
are well pleaded, invokes the existing record and must
be decided upon that alone. . . . In undertaking this
review, we are mindful of the well established notion
that, in determining whether a court has subject matter
jurisdiction, every presumption favoring jurisdiction
should be indulged.’’ (Internal quotation marks omit-
ted.) Dorry v. Garden, 313 Conn. 516, 521, 98 A.3d
55 (2014).
The defendant first contends that we are bound by
this court’s decision in Arpaia v. Corrone, 18 Conn.
App. 539, 559 A.2d 719 (1989), which stated, in the
context of a summary process action, that ‘‘[w]here
return of service is not timely . . . the defect cannot
be cured by amendment.’’ (Internal quotation marks
omitted.) Id., 540. We disagree.
In Arpaia, the defendants filed a motion to dismiss
the plaintiffs’ summary process action for failure to
make timely return of process before the listed return
date as required by § 47a-23a. Id., 539–40. The trial court
denied the defendants’ motion and subsequently ren-
dered judgment of possession in favor of the plaintiffs.
Id., 539. On appeal to this court, the defendants argued
that the trial court had erred in denying their motion
to dismiss the plaintiffs’ action because the plaintiffs
made return of process only two days prior to the return
date, not three and, therefore, the action was subject
to dismissal upon timely motion. Id., 539–40. Agreeing
with the defendants, this court reversed the judgment
of possession, concluding that, because the defendants
had filed a timely motion to dismiss the plaintiffs’ action,
thereby choosing not to waive the defect in the process,
the trial court was required to grant the motion. Id. In
so concluding, this court noted that, when return of
service is untimely made and the return date has already
passed, the defect may not be amended. Id., 541. The
court reasoned that, ‘‘once the date for return has
passed there is nothing before the court which can be
amended.’’ (Internal quotation marks omitted.) Id.
Although the portion of Arpaia pertaining to the
amendment of process directly supports the defen-
dant’s claim in the present case, we disagree that it is
binding on this court. To the extent that this portion
of Arpaia was part of the court’s holding and not mere
dictum,3 it was thereafter impliedly overruled by our
Supreme Court in Concept Associates, Ltd. v. Board of
Tax Review, 229 Conn. 618, 642 A.2d 1186 (1994).
In Concept Associates, Ltd., the plaintiff appealed a
tax assessment of its property by the Board of Tax
Review of the town of Guilford to the Superior Court,
but the return date listed on the complaint fell on a
Thursday, and not a Tuesday as required by General
Statutes § 52-48. Id., 620. The defendants therefore filed
a motion to dismiss the appeal, arguing that the defec-
tive return date deprived the trial court of jurisdiction.
Id., 621. In response, the plaintiff filed a motion to
amend the improper return date pursuant to § 52-72,
which the court denied on the ground that the return
date had already passed. Id. Consequently, the court
granted the defendants’ motion to dismiss the plaintiff’s
appeal. Id.
On appeal to this court, the plaintiff argued that § 52-
72 is the proper vehicle by which a party may amend
a defect of process. Concept Associates, Ltd. v. Board
of Tax Review, 31 Conn. App. 793, 795, 627 A.2d 471
(1993), rev’d, 229 Conn. 618, 642 A.2d 1186 (1994). This
court agreed with the defendants, however, that the
plaintiff could not amend its civil process because the
return date had already passed at the time the motion
to amend had been filed in the trial court and, therefore,
the court did not have jurisdiction to consider the mat-
ter. Id., 797. In so holding, this court relied on the deci-
sion in Arpaia, stating: ‘‘In Arpaia . . . this court held
that when the return of service is not timely, it is a defect
that cannot be cured by amendment. The rationale for
this proposition is that once the date for return has
passed there is nothing before the court that can be
amended. . . . The same rationale applies here. The
plaintiff’s summons in this case failed to state a correct
return date. Therefore, there was no proceeding before
the trial court. The plaintiff’s motion to amend the
return day was filed after the date for return had passed.
Thus, the plaintiff’s motion attempted to amend an
action that was not properly before the trial court and
must fail. The trial court’s dismissal of the action for
lack of subject matter jurisdiction was proper.’’ (Cita-
tions omitted; emphasis added; internal quotation
marks omitted.) Id., 796–97. This court therefore
affirmed the judgment of dismissal rendered by the trial
court. Id., 797.
The plaintiff in that case then appealed to our
Supreme Court, claiming that § 52-72 permits the
amendment of process to correct an improper return
date regardless of whether the correct return date has
passed. Concept Associates, Ltd. v. Board of Tax
Review, supra, 229 Conn. 621. In response, the defen-
dants argued that the plaintiff’s amendment was ‘‘not
a proper amendment’’ within the meaning of § 52-72
because the plaintiff did not seek to amend the return
date until after the correct return date had passed and
that, therefore, there was nothing before the court that
could be amended. (Internal quotation marks omitted.)
Id., 622–23. Our Supreme Court disagreed with the
defendants’ strict construction, pointing out that § 52-
72 has no provision limiting its applicability to amend-
ments sought prior to the passage of the relevant return
date. Id., 623. The court therefore rejected the narrow
interpretation of the statute advanced by the defen-
dants, explaining that, ‘‘[a]s a remedial statute, § 52-72
must be liberally construed in favor of those whom
the legislature intended to benefit.’’ (Internal quotation
marks omitted.) Id. Accordingly, the court reversed this
court’s judgment. Id., 626.
Although our Supreme Court’s decision in Concept
Associates, Ltd. v. Board of Tax Review, supra, 229
Conn. 618, did not explicitly overrule the portion of
Arpaia prohibiting amendment of process to correct
an improper return date after the return date has
passed, that was the practical effect of its decision. It
is clear from the procedural history of Concept Associ-
ates, Ltd., that both the Appellate Court and the defen-
dants had relied on Arpaia to support the trial court’s
dismissal of the plaintiff’s action. By reversing the judg-
ment of the Appellate Court and explicitly rejecting the
defendants’ argument that ‘‘there [was] no longer a case
before the court once the return date ha[d] passed’’
and, therefore, ‘‘there [was] nothing to amend,’’ the
Supreme Court implicitly overruled Arpaia. Id., 623.
Accordingly, we reject the defendant’s argument that
Arpaia is dispositive of the present appeal.
The defendant further argues, however, that § 52-
72, which permits the amendment of civil process, is
inapplicable in the present case because summary pro-
cess actions are not ordinary civil actions. According
to the defendant, a summary process action is a unique
cause of action that is distinct from the types of cases
that the legislature intended to classify as ‘‘civil
actions.’’ This issue requires little discussion, as the
question of whether a summary process action is a civil
action was recently answered by our Supreme Court
in Presidential Village, LLC v. Phillips, 325 Conn. 394,
158 A.3d 772 (2017).
The question before the court in Presidential Village,
LLC, was whether summary process actions constitute
‘‘other civil actions’’ within the meaning of General Stat-
utes § 52-174 (b), which provides a medical treatment
report exception to the rule against the admission of
hearsay. Id., 414–16. In holding that summary process
actions are ‘‘civil actions,’’ the court explained: ‘‘Black’s
Law Dictionary defines ‘civil action’ in relevant part as,
‘[a]n action wherein an issue is presented for trial
formed by averment of complaint and denials of answer
or replication to new matter . . . .’ Black’s Law Dic-
tionary (Rev. 4th Ed. 1968). The statutory process by
which eviction occurs in Connecticut is consistent
with this definition. Specifically, if a tenant neglects
or refuses to quit possession after having received a
pretermination notice and a subsequent notice to quit;
see General Statutes § 47a-23; ‘any commissioner of
the Superior Court may issue a writ, summons and
complaint which shall be in the form and nature of an
ordinary writ, summons and complaint in a civil
process . . . .’ ’’ (Emphasis altered.) Presidential Vil-
lage, LLC v. Phillips, supra, 325 Conn. 416; see also
General Statutes § 47a-23a. The court further explained:
‘‘At this point, the tenant may file an answer to the
complaint and may allege any special defenses, a pro-
cess facilitated by a standard form provided by the
Judicial Branch. See Summary Process (Eviction)
Answer to Complaint, Judicial Branch Form JD-HM-5;
see also Practice Book § 17-30 (rule of civil practice
governing default judgment for failure to appear or
plead in summary process matter). After the pleadings
are closed, a trial is scheduled. See General Statutes
§ 47a-26d.’’ Presidential Village, LLC v. Phillips,
supra, 416.
In sum, summary process actions are civil actions,
and, therefore, in the absence of explicit statutory lan-
guage to the contrary, they fall within the scope of
§ 52-72. Accordingly, we conclude that the trial court
properly denied the defendant’s motion to dismiss the
plaintiff’s summary process action.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 52-72 provides in relevant part: ‘‘(a) Upon payment
of taxable costs, any court shall allow a proper amendment to civil process
which is for any reason defective.
‘‘(b) Such amended process shall be served in the same manner as other
civil process and shall have the same effect, from the date of the service,
as if originally proper in form. . . .’’
2
General Statutes § 47a-23a (a) provides in relevant part: ‘‘[The] complaint
[in a summary process action] . . . shall be returned to court at least three
days before the return day.’’
3
There is no indication in the text of the Arpaia decision that the plaintiffs
had, in fact, sought to amend the return date in that matter.