Coppola v. Coppola

707 A.2d 281, 243 Conn. 657, 1998 Conn. LEXIS 38
CourtSupreme Court of Connecticut
DecidedFebruary 17, 1998
DocketSC 15715
StatusPublished
Cited by77 cases

This text of 707 A.2d 281 (Coppola v. Coppola) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coppola v. Coppola, 707 A.2d 281, 243 Conn. 657, 1998 Conn. LEXIS 38 (Colo. 1998).

Opinion

Opinion

NORCOTT, J.

The dispositive issue in this certified appeal is whether, pursuant to General Statutes § 52-72,1 the return date of civil process can be amended to [659]*659correct the plaintiffs failure to return the process at least six days before the return date as required by General Statutes § 52-46a.2 The plaintiff, Eileen Coppola, appeals3 from the judgment of the Appellate Court affirming the trial court’s judgment granting the defendant’s motion to dismiss. The plaintiff claims that the trial court improperly concluded that: (1) § 52-72 does not permit the amendment of the return date to correct a late return of process; and (2) the defendant did not waive the defect, despite having filed his motion to dismiss more than thirty days after the filing of an appearance, in violation of Practice Book § 142 et seq.4 We agree with the plaintiff that § 52-72 permits the amendment of the return date5 and, accordingly, we reverse the judgment of the Appellate Court.

The facts relevant to this appeal are undisputed. The plaintiff brought an action against the defendant, Paul [660]*660J. Coppola, for injuries arising out of a July 4, 1993 automobile accident. The writ of summons and complaint were dated June 25, 1995, with a return day of August 15, 1995. The defendant was served on June 28, 1995, and he filed an appearance on July 19, 1995. The plaintiff returned the process to the Superior Court on August 15,1995, which was the return date. Thereafter, on September 8, 1995, the defendant, pursuant to Practice Book § 142, filed a motion to dismiss on the ground that the process was not returned at least six days prior to the return date as required by § 52-46a. On September 14,1995, the plaintiff, pursuant to Practice Book § 175,6 filed an amendment to revise the return day from August 15, 1995, to August 22, 1995, in order to satisfy the six day requirement of § 52-46a.The trial court denied the plaintiffs request to amend the return date because it concluded that a late return of process was not the type of defect that could be amended pursuant to § 52-72. The court further stated that the plaintiffs reliance on Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 642 A.2d 1186 (1994), was “misplaced” and that “no case has been found that supports the plaintiffs argument that . . . she can correct a late return of process by an amendment filed on September 14, 1995, which simply changes the return day from August 15, 1995 to August 22,1995, and then claim that the original process, which was returned on August 15, 1995, was returned at least six days before the new return day of August 22, 1995.” The court, in light of its finding that the defendant’s motion to dismiss was timely, dismissed the plaintiffs action. The Appellate Court summarily affirmed the trial court’s judgment of [661]*661dismissal. Coppola v. Coppola, 44 Conn. App. 930, 691 A.2d 1128 (1997). This certified appeal follows.

The plaintiff claims that § 52-72 permits the amendment of the return date to correct a failure to return civil process at least six days prior to the return day as required by § 52-46a.7 She relies on our analysis of § 52-72 in Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 623-25, as authority for her construction of the statute. The defendant, in support of the contrary view, argues that a late return of process is a defect of service that cannot be amended. He further contends that Concept Associates, Ltd., is inapplicable to the facts in the present case because it dealt with the amendment of an improper return date rather than the amendment of a proper return date to remedy a late return of process.

As a preliminary matter, we note that the requirement of § 52-46a to return process in civil actions to the clerk of the Superior Court at least six days before the return date8 is mandatory and failure to comply with its [662]*662requirements renders the proceeding voidable, rather than void, and subject to abatement. Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 433, 559 A.2d 1110 (1989). “[0]nce an action has been brought by service of process on the defendant, a trial court may thereafter dismiss the action for failure to return the service of process within the mandated time period.” Rana v. Ritacco, 236 Conn. 330, 339, 672 A.2d 946 (1996).

Our resolution of the plaintiffs claim requires an analysis of § 52-72, in which “we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, we look to the words of the statute itself, to the 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 general subject matter.” (Internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742. (1997).

Section 52-72 (a) provides in relevant part that “[a]ny court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective . . . .” The defendant argues that the phrase “for any other reason defective” does not encompass a late return of process. Section 52-72 does not define the term defective. “ ‘If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.’ ” State v. Payne, 240 Conn. 766, 771, 695 A.2d 525 (1997). The term “defective” is defined as “[packing in some particular which is essential to the completeness, legal sufficiency, or security of the object spoken of; as a ‘defective’service of process or return of service. . . .” [663]*663Black’s Law Dictionary (6th Ed. 1990). In construing the meaning of defective as used in the statute, we find the analysis of the legislative intent and purpose of § 52-72 set forth in Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 623-25, more instructive than the dictionary definition.

In Concept Associates, Ltd., the defendant filed a motion to dismiss on the basis that the return date was a Thursday rather than a Tuesday as required by General Statutes § 52-48 (a).9 Id., 620. After the return date had passed, the plaintiff sought to amend the return date pursuant to § 52-72 from May 28, 1992, a Thursday, to May 26, 1992, a Tuesday. The issue presented was whether § 52-72 “permits the amendment of an improper return date in civil process after the return date has passed.” Id., 619-20.

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Bluebook (online)
707 A.2d 281, 243 Conn. 657, 1998 Conn. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coppola-v-coppola-conn-1998.