MICHAEL ABBELS ET AL. v. JOEL ZARETZKY, M.D.

2004 Ct. Sup. 325
No. CV02-0078142SConnecticut Superior Court, Judicial District of Ansonia-Milford at Milford
January 12, 2004

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 128
NADEAU, JUDGE.

This case involves questions as to whether an amended return date was proper or whether it instead leaves the court without jurisdiction over the case and the newly enlarged group of defendants.

FACTS
The plaintiffs, Michael and Linda Abbels, commenced this medical malpractice action by serving the defendant, Joel Zaretzky, on April 26, 2002. On May 9, 2002, the plaintiffs filed the writ of summons and complaint with a return date of May 28, 2002. On February 5, 2003, the plaintiffs filed a motion to cite in Joel Zaretzky d/b/a Internal Medicine Associates and Joel Zaretzky d/b/a Joel S. Zaretzky, M.D., P.C., which the court granted on February 21, 2003. On March 7, 2003, the plaintiffs served the defendants with an amended writ of summons and complaint dated March 3, 2003. That writ of summons did not include a return date; instead, the docket number was typed in the space where the return date should have been. The plaintiffs filed the amended complaint and writ of summons on March 13, 2003.

On May 12, 2003, the defendants Joel Zaretzky d/b/a Internal Medicine Associates and Joel Zaretzky d/b/a Joel S. Zaretzky, M.D., P.C. (moving defendants) filed a motion to dismiss the plaintiffs’ amended complaint on the ground that “this court lacks jurisdiction over the parties added to the instant lawsuit . . .” The moving defendants also filed a memorandum of law in support of their motion. In reply, the plaintiffs filed an objection to the motion to dismiss along with a supporting memorandum of law on May 16, 2003. The moving defendants filed a reply memorandum of law in support of their motion to dismiss on June 6, 2003. CT Page 326

Meanwhile, on May 16, 2003, the plaintiffs filed a motion for leave to amend the March 3, 2003 writ of summons. On May 22, 2003, the moving defendants filed an objection to the motion to amend the summons. The court granted the motion for leave to amend on June 2, 2003 and on June 9, 2003, the plaintiffs filed an amended summons with a return date of March 25, 2003.

DISCUSSION
Initially, it should be noted that while the motion to dismiss in the present case is premised on the ground that the court lacks jurisdiction “over the parties,” the sole issue addressed by the moving defendants in their supporting memorandum of law is the court’s subject matter jurisdiction. “A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised.” (Internal quotation marks omitted.) Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.” Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). “Issues not briefed are considered abandoned.” State v. Ramsundar, 204 Conn. 4, 16, 526 A.2d 1311 (1987); see also Hayes v. Smith, 194 Conn. 52, 480 A.2d 425 (1984). Because the moving defendants’ memorandum of law raises the issue of the court’s subject matter jurisdiction, and because they have failed to brief the court’s jurisdiction over the parties, the court should and does address only the question of whether it lacks subject matter jurisdiction.

“A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.” (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). “A motion to dismiss tests inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.)Id. “Where a decision as to whether a court has subject matter CT Page 327 jurisdiction is required, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Olympia Mortgage Corp. v. Klein, 61 Conn. App. 305, 307, 763 A.2d 1055
(2001).

The moving defendants argue that the court lacks subject matter jurisdiction because General Statutes § 52-45a requires a writ of summons to include the return day and the plaintiffs’ amended summons did not comply with this requirement. The plaintiffs argue in opposition that because the court has subject matter jurisdiction over the original cause of action, it has jurisdiction over the action set forth in the amended complaint since both actions arise from a single group of facts. The plaintiffs further argue that the court is required to allow them to amend the defective summons pursuant to General Statutes §52-72. Alternatively, the plaintiffs argue that a defective return date implicates personal rather than subject matter jurisdiction. Lastly, the plaintiffs argue that the lack of a return date is merely a “circumstantial” defect that, pursuant to General Statutes § 52-123,[1] does not constitute a basis for dismissal.

The moving defendants argue in reply that an incorrect return date implicates the court’s subject matter jurisdiction. The moving defendants further argue that pursuant to General Statutes § 52-48, an improper return date is not amendable once the return date has passed and that the plaintiffs therefore have waived any right to amend the return date. Finally, the moving defendants assert that General Statutes § 52-123 applies to defects in the text of a summons but not to errors in process.

Pursuant to General Statutes § 52-45a, “[c]ivil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator.” (Emphasis added.) “All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.” General Statutes § 52-48(b); see also Practice Book § 8-1. However, General Statutes § 52-72 “creates an avenue to amend defects in the return date.” Olympia Mortgage Corp. v. Klein, supra, 61 Conn. App. 309. General Statutes § 52-72(a) provides in relevant part: “Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return CT Page 328 day or is for any other reason defective . . .” (Emphasis added.) Our Supreme Court has interpreted this language to be “mandatory rather than directory . . .” Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 626, 642 A.2d 1186
(1994).

In Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998), the court noted that § 52-72 “was enacted in response to decisions of [the Supreme Court] holding that an improper return date was a jurisdictional defect that could not be corrected.”Id., 663. The court further noted that “the purpose of § 52-72
is to provide for amendment of otherwise incurable defects that go to the court’s jurisdiction . . . The apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date.” (Citation omitted; internal quotation omitted.) Id., 663-64. The court stated that “such an interpretation is consistent with our expressed policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” (Internal quotation marks omitted.)Id., 665. Furthermore, the court held that “[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), therefore, with its two month limit, circumscribes the extent to which a return date may be amended.” Id., 666-67.

In Concept Associates, Ltd., supra, 229 Conn. 618, the court rejected a claim that it is only proper for a defective return date to be amended pursuant to § 52-72 if the amendment is sought before the return date has passed, stating that “such an interpretation would thwart the intended purpose of the statute.”Id., 625. The court concluded that § 52-72 “does not contain a provision limiting its applicability to amendments that are sought before the passage of the correct return date”; id.,
623; and rejected the argument that § 52-72 applies only if a motion to amend or an adverse party’s motion to dismiss is filed prior to the return date. Id., 625.

In the present case, the plaintiffs’ amended return date of March 25, 2003, complied with the time limitation set forth in §52-48(b) because the date of process was less than two months prior to the amended return date.[2] Thus, the amended return date was proper and the plaintiffs’ motion to amend the summons was properly granted. Consequently, in accordance with §§52-45a and 52-72, this court has subject matter jurisdiction over CT Page 329 the plaintiffs’ March 3, 2003 amended complaint.[3] The motion to dismiss for lack of subject matter jurisdiction is denied.

NADEAU, JUDGE.

[1] Connecticut General Statutes § 52-123 provides that “[n]o writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”
[2] There is a split in authority among the Superior Courts as to what or when the “date of process” is for purposes of §52-48(b). One line of cases holds that the date of process is the date listed on the process. See Zalounzis v. Sturges Mathes,
Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 94 046570 (September 2, 1994, Rush, J.) (12 Conn. L. Rptr. 380); see also Howard v. Albertus Magnus College,
Superior Court, judicial district of New Haven, Docket No. CV 03 0472650 (July 2, 2003, Harper, J.). Other courts have used the date when service of process is made as the date of process. Se Nurse Force, LLC v. Laurel Convalescent Home, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0193324 (June 11, 2003, D’Andrea, J.T.R.) (34 Conn. L. Rptr. 697). The plaintiffs in this case complied with § 52-48(b) under either view because the date listed on the process is March 3, 2003 and the date process was served is March 7, 2003, both of which are within two months of the March 25, 2003 amended return date.
[3] The Supreme Court has not yet decided whether the use of a defective return date deprives a court of subject matter jurisdiction in the absence of an amendment pursuant to § 52-72. See Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 625-26 n. 8. Because § 52-72 is applicable to the facts of this case, there is no need for this court to decide the issue.

CT Page 330