REBECCA MERRILL v. NRT NEW ENGLAND, INC., et al., SC 18763
Judicial District of New Haven
Pleadings; Whether Trial Court Lacked Subject Matter Jurisdiction Due to a Failure of Service; Whether Defendants Waived Claim of Lack of Personal Jurisdiction Due to Defective Process. The plaintiff brought this action alleging that the defendants misrepresented that the property she had purchased was a corner lot. The defendants were served with a summons and complaint dated June 29, 2008, and bearing a return date of July 22, 2008, on or about June 30, 2008. On August 20, 2008, the plaintiff filed with the trial court the summons and complaint with the July 22, 2008 return date on each crossed out and the date of August 26, 2008 written in. The plaintiff also filed on that date the marshal's return of service, an amendment of process and a revised complaint dated August 12, 2008. The plaintiff's attorney indicated that he changed the return date because the marshal did not return process to him until after the sixth day preceding July 22, 2008, making it impossible for him to file it with the court six days prior to the return date as required by General Statutes § 52-46a. On September 8, 2008, the defendants' counsel filed an appearance and a request to revise and, on October 24, 2008, the defendants moved to dismiss the action alleging insufficient process and a lack of personal jurisdiction. The trial court granted the motion to dismiss, reasoning that it lacked jurisdiction because there was never a return made for the June 29, 2008 summons and complaint. The plaintiff appealed and the Appellate Court (126 Conn. App. 314) reversed, finding that the trial court improperly granted the motion to dismiss. In doing so, it rejected the defendants' claim that they were never served with the documents that the plaintiff filed with the court, noting that, although the plaintiff altered the return date, the summons and complaint filed with the court were otherwise the same as those that had been served on the defendants. Ultimately, the Appellate Court ruled that the plaintiff's amendment of the return date, albeit without leave of the trial court as required by General Statutes § 52-72 (a), did not deprive the trial court of subject matter jurisdiction but rather rendered the action subject to dismissal for want of personal jurisdiction over the defendants. The court held that, because the defendants did not file their motion to dismiss within thirty days after their counsel filed an appearance, they waived their opportunity to claim a lack of personal jurisdiction on the basis of defective service. The Supreme Court will address whether the Appellate Court properly determined that (1) §§ 52-46a and 52-72 did not operate to deprive the trial court of subject matter jurisdiction, and (2) the defendants had waived any challenge to a lack of in personam jurisdiction.