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RIBEIRO v. FASANO, IPPOLITO & LEE, P.C.—DISSENT
GRUENDEL, J., dissenting. Distilled to its essence,
this case concerns a return date that was two days too
late. The question presented under the unique facts of
this case is one of first impression: may a plaintiff,
who properly files a return of service with the court in
accordance with General Statutes § 52-46a but later is
apprised of a defect with respect to the return date on
his writ of summons and complaint, utilize the curative
provision of General Statutes § 52-72 to both (1) serve
an amended summons and complaint on the defen-
dants, and (2) file that amended summons and com-
plaint with the court nunc pro tunc to ensure
compliance with § 52-46a? Because any defects with
respect to legal process in this case are technical in
nature, rather than substantive, and mindful of this
court’s obligation to strictly construe that remedial stat-
ute in favor of the plaintiff, I would answer that query
in the affirmative. Accordingly, I respectfully dissent
from the majority opinion.
The plaintiff, Nino Ribeiro, appeals from the judg-
ment of the trial court dismissing his action against the
defendants Fidelity National Title Insurance Company,
Chicago Title Insurance Company, and Bank of
America, N.A.1 The plaintiff claims that the court
improperly dismissed the action for lack of personal
jurisdiction due to his failure to comply with General
Statutes § 52-48 (b).
The underlying facts are not disputed. The plaintiff’s
complaint alleges that the plaintiff and the law firm of
Fasano, Ippolito & Lee, P.C. (law firm), entered into a
contract whereby Attorney Alphonse Ippolito agreed
to represent the plaintiff in connection with the pur-
chase and development of real property known as 339
Greene Street in New Haven (property). The complaint
further alleged that pursuant to the contract, the law
firm and Ippolito agreed to secure, inter alia, an ease-
ment from an adjacent property located at 329 Greene
Street to enable the plaintiff ‘‘to tap into and use the
existing water and sewer lines and pipes’’ that ran
through that property. Ippolito and the law firm repre-
sented the plaintiff at the March 29, 2007 closing on
the property. At that time, the owner of the adjacent
property executed a utility easement that Ippolito had
drafted. That owner thereafter refused to allow the
plaintiff to tap into the water and sewer lines that tran-
sect its property. In so doing, it relied on the language
contained in the utility easement drafted by Ippolito.
This civil action followed. The plaintiff’s complaint
consisted of three counts. The first count sounds in
breach of contract against the law firm and Ippolito.
In the second and third counts, the plaintiff alleged that
because the law firm and Ippolito also ‘‘represented the
interests of and acted as and were the agents for’’ the
defendants ‘‘at all times in connection with their repre-
sentation of [the plaintiff] and in connection with [his]
financing and purchase of the property,’’ the defendants
were ‘‘liable to [him] for the damages he sustained as
a result of the breaches, errors and/or omissions com-
mitted’’ by the law firm and Ippolito.
The plaintiff’s writ of summons and complaint were
dated March 26, 2013. The return date specified on
that summons and complaint was May 28, 2013. It is
undisputed that the return date exceeded by two days
the two month time period set forth in § 52-48 (b).2 The
plaintiff then filed his return of service with the Superior
Court on May 21, 2013. In so doing, he fully complied
with § 52-46a, as that filing was made more than six
days prior to the specified return date.3
On June 26 and June 27, 2013,4 the defendants filed
respective motions to dismiss the action for lack of
jurisdiction, claiming that the return date specified on
the plaintiff’s summons failed to comply with the
requirements of § 52-48 (b).5 In response, the plaintiff
filed a request for leave to ‘‘amend, serve and file’’ legal
process pursuant to § 52-72.6 That request was twofold
in nature, as the plaintiff sought to avail himself of
that remedial statute to simultaneously (1) serve on the
defendants an amended writ of summons and complaint
that revised the return date to May 21, 2013, and (2)
file that amended writ of summons and complaint ‘‘nunc
pro tunc on May 14, 2013 . . . .’’7 (Emphasis omitted.)
The defendants opposed that request. The court heard
argument on the plaintiff’s request on September 23,
2013.
In its November 29, 2013 memorandum of decision,
the court acknowledged the plaintiff’s claim that § 52-
72 (a) ‘‘gives him the opportunity to amend the return
date of his writ of summons and complaint nunc pro
tunc because the language [of that statute] implies that
[it] covers both defects in the return date as well as
defects in the date of the return of the writ of summons
and complaint.’’ (Emphasis omitted.) The court never-
theless did not explicitly decide the propriety of that
claim. Instead, the court reasoned that ‘‘[i]n the present
case . . . process was signed . . . on March 26, 2013,
and the return date was set at May 28, 2013. Since this
return date is two months and two days past the date
on which process was signed, it is outside the two
month requirement in § 52-48 (b). The plaintiff then
returned process to this court on May 21, 2013, in com-
pliance with § 52-46a,8 as May 21 is at least six days
prior to the return date of May 28, 2013. The return of
process here on May 21 . . . cannot be amended to be
in agreement with both § 52-46a and § 52-48 (b), as it
must be. Moreover, since the return date to this court
must be on a Tuesday, as stated in § 52-48 (a), moving
the May 28 [return] date back one week to a Tuesday
would make the return date fall on May 21, the same
date as the return of process, resulting in noncompli-
ance with § 52-46a. Also, if the return date is to be
pushed forward to the following Tuesday, or June 4,
2013, the two month limit between June 4, 2013, and
the date process was signed on March 26 would still
be contravened. Due to the original return date of May
28, 2013, on the writ of summons and complaint, and
the date on which the plaintiff returned process to this
court on May 21, 2013, there is no date to which the
court can amend the return date and remain in compli-
ance with the requirements of both § 52-48 (b) and § 52-
46a.’’ (Footnote added.) The court thus granted the
motions to dismiss, concluding that it lacked personal
jurisdiction over the defendants. From that judgment,
the plaintiff appealed to this court.
I
At the outset, I note that although the record before
us does not contain an explicit ruling on the plaintiff’s
request to file his amended return of process ‘‘nunc pro
tunc on May 14, 2013’’; (emphasis omitted); the plaintiff
in his principal appellate brief submits—and the defen-
dants do not disagree—that the court implicitly denied
that request in its memorandum of decision. I agree.
Indeed, the court’s memorandum of decision can only
be read to include such a denial. The return date speci-
fied on the plaintiff’s summons did not comply with
§ 52-48 (b), as it fell outside the two month period
specified therein. Under Connecticut law, a party is
entitled to amend a defective return date pursuant to
§ 52-72; Coppola v. Coppola, 243 Conn. 657, 664–67, 707
A.2d 281 (1998); though ‘‘[a]mended process must still
comply with § 52-46a and be returned at least six days
before the return date.’’ Id., 666 n.11. Accordingly, if
the court had granted the plaintiff’s request to file his
amended return of process nunc pro tunc on May 14,
2013, his amendment of the return date to May 21, 2013,
would have resulted in compliance with § 52-46a.
It nevertheless remains that the court specifically
found that, even if the return date was amended pursu-
ant to § 52-72, ‘‘there is no date to which the court can
amend the return date and remain in compliance with
the requirements of both § 52-48 (b) and § 52-46a.’’
Mindful that, in the face of a silent record, ‘‘we presume
that the trial court, in rendering its judgment . . .
undertook the proper analysis of the law’’; S & S
Tobacco & Candy Co. v. Greater New York Mutual Ins.
Co., 224 Conn. 313, 322, 617 A.2d 1388 (1992); I agree
with the parties that a denial of the plaintiff’s request
to file his amended summons and complaint nunc pro
tunc emanates from the court’s memorandum of deci-
sion. Absent such a ruling, the court could not have
determined that § 52-72 did not operate to save the
plaintiff’s action against the defendants. See Concept
Associates, Ltd. v. Board of Tax Review, 229 Conn. 618,
626, 642 A.2d 1186 (1994) (curative provision of § 52-
72 [a] ‘‘is mandatory rather than directory’’); Olympia
Mortgage Corp. v. Klein, 61 Conn. App. 305, 309–10,
763 A.2d 1055 (2001) (§ 52-72 cured defect in process
made returnable more than two months from date of
service of process).
II
The plaintiff contends that the court improperly
determined that it lacked personal jurisdiction over the
defendants due to his noncompliance with § 52-48 (b).
Our Supreme Court has stated that ‘‘[a] defect in process
. . . such as an improperly executed writ, implicates
personal jurisdiction . . . .’’ Lostritto v. Community
Action Agency of New Haven, Inc., 269 Conn. 10, 848
A.2d 418 (2004). ‘‘Because a challenge to the personal
jurisdiction of the trial court is a question of law, our
review is plenary.’’ Myrtle Mews Assn., Inc. v. Bordes,
125 Conn. App. 12, 15, 6 A.3d 163 (2010).
With that standard in mind, I turn to the unique proce-
dural facts of this case. In response to the motions to
dismiss filed by the defendants predicated on a defec-
tive return date, the plaintiff sought leave, pursuant to
§ 52-72, to simultaneously (1) serve an amended sum-
mons and complaint on those parties, and (2) file that
amended summons and complaint with the court nunc
pro tunc. The defendants concede, consistent with
established precedent, that the plaintiff is entitled to
amend the return date pursuant to § 52-72 so as to
comply with § 52-48 (b). See, e.g., Concept Associates,
Ltd. v. Board of Tax Review, supra, 229 Conn. 621–26;
Olympia Mortgage Corp. v. Klein, supra, 61 Conn. App.
309–10. Accordingly, the dispositive question is whether
the plaintiff also is entitled, under § 52-72, to file his
amended writ of summons and complaint ‘‘nunc pro
tunc on May 14, 2013’’; (emphasis omitted); to ensure
compliance with § 52-46a. The plaintiff’s claim presents
an issue of first impression for the appellate courts of
this state.9
‘‘Whether the defect in the present case can be cured
under § 52-72 is a question of statutory interpretation
that also requires our plenary review.’’ New England
Road, Inc. v. Planning & Zoning Commission, 308
Conn. 180, 185, 61 A.3d 505 (2013). ‘‘When construing
a statute, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature.
. . . In other words, we seek to determine, in a rea-
soned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the ques-
tion of whether the language actually does apply. . . .
In seeking to determine that meaning, General Statutes
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered. . . . The test to determine ambiguity is
whether the statute, when read in context, is susceptible
to more than one reasonable interpretation.’’ (Internal
quotation marks omitted.) Hees v. Burke Construction,
Inc., 290 Conn. 1, 10, 961 A.2d 373 (2009).
In accordance with § 1-2z, I begin with the plain lan-
guage of the statute. Section 52-72 (a) provides: ‘‘Upon
payment of taxable costs, any court shall allow a proper
amendment to civil process which is for any reason
defective.’’ For purposes of resolving the defendant’s
claim, the critical language is ‘‘civil process which is
for any reason defective.’’ The majority suggests that
this language encompasses only defects with respect
to the writ of summons, the complaint and any attach-
ments thereto, and therefore concludes that a plaintiff’s
filing of those materials with the court pursuant to § 52-
46a is not subject to the curative provision of § 52-72.10
Admittedly, that strict interpretation is a plausible one.
At the same time, the appellate courts of this state
have suggested a broader reading of defective civil pro-
cess, as that terminology is used in § 52-72, which
encompasses a plaintiff’s return of process to the court
pursuant to § 52-46a. See, e.g., New England Road, Inc.
v. Planning & Zoning Commission, supra, 308 Conn.
186 (expressing agreement with proposition that ‘‘the
remedial aspects of § 52-72 have been limited to amend-
ing defects in the return date or the return of process
to court’’ and noting that ‘‘[i]n prior cases, we have
applied § 52-72 to cure . . . defects in the return date
or the [untimely] return of process to court’’); Coppola
v. Coppola, supra, 243 Conn. 662 (rejecting claim that
§ 52-72 ‘‘does not encompass a late return of process’’);
cf. Young v. Bridgeport, 135 Conn. App. 699, 709, 42 A.3d
514 (2012) (explaining that General Statutes ‘‘§§ 52-45a
through 52-72 . . . prescribe the manner and means
by which service of civil process is to be accomplished’’
[emphasis added]). That precedent suggests that
defects with respect to the return of process to the
court are within the purview of § 52-72.
As a result, the relevant language of § 52-72 is suscep-
tible to more than one reasonable interpretation and
ambiguous as applied to the facts of this case. In con-
struing § 52-72, this court therefore must consider ‘‘the
legislative history of the statute and the circumstances
surrounding its enactment, the legislative policy it was
designed to implement, the statute’s relationship to
existing legislation and common-law principles govern-
ing the same general subject matter.’’11 Teresa T. v.
Ragaglia, 272 Conn. 734, 742, 865 A.2d 428 (2005).
In so doing, this court is bound by the well established
principle that, in construing a statute that is remedial
in nature, ‘‘any ambiguities should be resolved in a
manner that furthers, rather than thwarts, the [statute’s]
remedial purposes.’’ (Internal quotation marks omit-
ted.) Finkle v. Carroll, 315 Conn. 821, 831, 110 A.3d 387
(2015); see also Vincent v. New Haven, 285 Conn. 778,
792, 941 A.2d 932 (2008) (same); Commissioner of
Labor v. C.J.M. Services, Inc., 73 Conn. App. 39, 53,
806 A.2d 1105 (2002) (‘‘[a]mbiguities in a remedial stat-
ute must be resolved in favor of the persons whom the
statute is intended to protect’’), rev’d in part, 268 Conn.
283, 842 A.2d 1124 (2004). Furthermore, ‘‘in interpreting
the language of § 52-72, we do not write on a clean
slate, but are bound by . . . previous judicial interpre-
tations of this language and the purpose of the statute.’’
New England Road, Inc. v. Planning & Zoning Com-
mission, supra, 308 Conn. 186. The purpose of this
statute, as articulated in prior judicial interpretations
thereof, therefore demands attention.
Our Supreme Court has stated that ‘‘[t]he purpose
of [§ 52-72] is to provide for amendment of otherwise
incurable defects that go to the court’s jurisdiction.’’
Hartford National Bank & Trust Co. v. Tucker, 178
Conn. 472, 478–79, 423 A.2d 141 (1979), cert. denied,
445 U.S. 904, 100 S. Ct. 1079, 63 L. Ed. 2d 319 (1980).
Section 52-72 is ‘‘a remedial statute [that] must be liber-
ally construed in favor of those whom the legislature
intended to benefit.’’ (Internal quotation marks omit-
ted.) Concept Associates, Ltd. v. Board of Tax Review,
supra, 229 Conn. 623. ‘‘The legislature, in enacting § 52-
72, expressed an intent to reject the draconian result
of dismissal of the plaintiff’s cause of action’’ because
of defective process. Coppola v. Coppola, supra, 243
Conn. 665. As the court explained: ‘‘[S]tatutes such as
§ 52-72 were intended to take the sharp edges off the
common law . . . . Centuries ago the common law
courts of England . . . insisted upon rigid adherence
to the prescribed forms of action, resulting in the defeat
of many suits for technical faults rather than upon their
merits. Some of that ancient jurisprudence migrated to
this country . . . and has affected the development of
procedural law in this state. . . . [H]owever, our legis-
lature enacted numerous procedural reforms applicable
to ordinary civil actions that are designed to ameliorate
the consequences of many deviations from the pre-
scribed norm, which result largely from the fallibility
of the legal profession, in order generally to provide
errant parties with an opportunity for cases to be
resolved on their merits rather than dismissed for some
technical flaw.’’ (Citation omitted; internal quotation
marks omitted.) Id., 664–65.
In furtherance of that salutary aim, our Supreme
Court has ‘‘refused to permit the recurrence of the ineq-
uities inherent in eighteenth century common law that
denied a plaintiff’s cause of action if the pleadings were
technically imperfect.’’ Andover Ltd. Partnership I v.
Board of Tax Review, 232 Conn. 392, 399, 655 A.2d 759
(1995). For that reason, the court has held that the
curative provision of § 52-72 (a) ‘‘is mandatory rather
than directory . . . .’’ (Footnote omitted.) Concept
Associates, Ltd. v. Board of Tax Review, supra, 229
Conn. 626; see also Kobyluck v. Planning & Zoning
Commission, 84 Conn. App. 160, 168, 852 A.2d 826
(‘‘[§] 52-72 requires the trial court to allow a proper
amendment to defective process’’), cert. denied, 271
Conn. 923, 859 A.2d 579 (2004).
In addition, this court must be mindful that the
Supreme Court, in interpreting § 52-72, has emphasized
its ‘‘expressed policy preference 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.’’ (Internal
quotation marks omitted.) Coppola v. Coppola, supra,
243 Conn. 665. ‘‘Our practice does not favor the termina-
tion of proceedings without a determination of the mer-
its of the controversy where that can be brought about
with due regard to necessary rules of procedure. . . .
For that reason, [a] trial court should make every effort
to adjudicate the substantive controversy before it, and,
where practicable, should decide a procedural issue so
as not to preclude hearing the merits of an appeal.’’
(Citations omitted; internal quotation marks omitted.)
Egri v. Foisie, 83 Conn. App. 243, 250, 848 A.2d 1266,
cert. denied, 271 Conn. 931, 859 A.2d 930 (2004); accord
Kobyluck v. Planning & Zoning Commission, supra,
84 Conn. App. 166 (‘‘[o]ur preference is to avoid a termi-
nation of proceedings due to mere technical imperfec-
tion’’). This court also must heed the principle that
‘‘a court should . . . make every presumption favoring
jurisdiction’’ in deciding a motion to dismiss predicated
on defective civil process. Olympia Mortgage Corp. v.
Klein, supra, 61 Conn. App. 310.
The present case is not one in which the plaintiff
failed to file his return of process with the court; it is
undisputed that he did so on May 21, 2013. The only
defect arising from the plaintiff’s commencement of
this civil action—and the only one identified by the
defendants in their motions to dismiss—is a return date
that was two days too late under § 52-48 (b). The sole
issue, then, is whether the plaintiff, once alerted to the
defective return date on his summons, could utilize
§ 52-72 both to amend his summons and complaint,
and to file the same ‘‘nunc pro tunc on May 14, 2013’’;
(emphasis omitted); to ensure compliance with § 52-
46a. I would answer that query in the affirmative.
First, I note that our Supreme Court has held that
§ 52-72 may be utilized to amend a return date to correct
a plaintiff’s failure to return civil process at least six
days before the return date, as required by § 52-46a.
Coppola v. Coppola, supra, 243 Conn. 664. That remedial
statute thus operates to alleviate the harsh result of
dismissal due to technical noncompliance with the
return of process requirements of § 52-46a, as well as
the return date requirements of § 52-48 (b). If the return
date may be amended under § 52-72 to secure compli-
ance with § 52-46a, I perceive little reason why a party
should be precluded from filing its amended writ of
summons and complaint nunc pro tunc for that very
same purpose. As the Supreme Court recently noted,
‘‘[i]n prior cases, we have applied § 52-72 to cure . . .
defects in the return date or the [untimely] return of
process to the court.’’12 New England Road, Inc. v. Plan-
ning & Zoning Commission, supra, 308 Conn. 186.
Permitting the plaintiff to utilize § 52-72 to file his
amended summons and complaint with the court ‘‘nunc
pro tunc on May 14, 2013’’; (emphasis omitted); com-
ports with that precedent.
Second, it is axiomatic that we must construe § 52-
72 ‘‘in a manner that will not thwart its intended purpose
. . . .’’ (Internal quotation marks omitted.) Concept
Associates, Ltd. v. Board of Tax Review, supra, 229
Conn. 624. The purpose of § 52-72 is to ‘‘provide for
amendment of otherwise incurable defects that go to
the court’s jurisdiction’’; Hartford National Bank &
Trust Co. v. Tucker, supra, 178 Conn. 479; and avoid
the ‘‘draconian result’’ of dismissal of a plaintiff’s action
due to defective process. Coppola v. Coppola, supra,
243 Conn. 665. Denying the plaintiff’s request to file his
amended summons and complaint with the court nunc
pro tunc impedes that remedial purpose and deprives
the litigant of his day in court due to technical imper-
fection.
I respectfully disagree with the defendants and the
majority that the plaintiff’s request to file his amended
summons and complaint nunc pro tunc is substantive,
rather than technical, in nature. See New England Road,
Inc. v. Planning & Zoning Commission, supra, 308
Conn. 189 (‘‘the intent of the legislature [in enacting
§ 52-72] was to permit cure of technical, rather than
substantive, defects’’). This is not a case in which the
defect in the plaintiff’s legal process arose from a failure
to return service to the court. Rather, the sole defect
was a tardy return date. Once alerted to that deficiency,
the plaintiff sought recourse under § 52-72 to serve an
amended summons and complaint on the defendants.
He further sought to file that amended process with
the court nunc pro tunc on May 14, 2013. Accordingly,
this is not a case in which the plaintiff has sought to
‘‘alter, after the fact, the date’’ on which his original
writ of summons and complaint was filed with the court,
as the majority suggests. He simply wanted to file his
new process nunc pro tunc to secure compliance with
§ 52-46a, the necessity of which arose solely from his
defective return date.
In that regard, I note that our Supreme Court recently
held that the ‘‘failure to attach a summons or citation
to the complaint [is] a substantive defect [and] not the
type of technical defect that is amendable pursuant to
§ 52-72.’’ New England Road, Inc. v. Planning & Zoning
Commission, supra, 308 Conn. 194. In so doing, the
court relied on its prior holding in Hillman v. Green-
wich, 217 Conn. 520, 587 A.2d 99 (1991). In Hillman, the
court explained that ‘‘a writ of summons is a statutory
prerequisite to the commencement of a civil action.
. . . [I]t is an essential element to the validity of the
jurisdiction of the court. . . . Although the writ of sum-
mons need not be technically perfect, and need not
conform exactly to the form set out in the Practice
Book . . . the plaintiff’s complaint must contain the
basic information and direction normally included in a
writ of summons.’’ (Citations omitted.) Id., 526. The
court thus reasoned that ‘‘[b]ecause the plaintiff . . .
failed to comply in any fashion with these basic
requirements . . . the trial court should have granted
the defendant’s motion to dismiss the complaint . . .
for lack of personal jurisdiction . . . .’’13 (Emphasis
added.) Id. At the same time, the appellate courts of
this state have permitted plaintiffs to cure defects in
writs of summons when they complied, in some fashion,
with that statutory requirement.14 See, e.g., Concept
Associates, Ltd. v. Board of Tax Review, supra, 229
Conn. 621–26 (permitting amendment of defect in writ
of summons under § 52-72 when plaintiff had served
summons on defendants and filed return of process
with court); Olympia Mortgage Corp. v. Klein, supra,
61 Conn. App. 306–10 (same). Accordingly, our courts
have distinguished, in considering the operation of § 52-
72, between an absolute failure to comply with the
statutory prerequisite of serving a writ of summons,
on the one hand, with a plaintiff’s compliance, albeit
defective, on the other. That precedent instructs that
the former is substantive in nature and not susceptible
to amendment under § 52-72, while the latter is techni-
cal in nature and amendable thereunder.
That reasoning informs the analysis in the present
case. While the return of a writ of summons and com-
plaint to the court is, like the service of a writ, a statu-
tory imperative, it remains that the plaintiff in this case
complied with that requirement. In its memorandum of
decision, the trial court made an express finding to that
effect. Neither the defendants nor the majority have
presented any sound basis to depart from the aforemen-
tioned reasoning in considering whether the plaintiff’s
request to file his amended summons and complaint
nunc pro tunc is technical, rather than substantive, in
nature.
Furthermore, it bears emphasis that § 52-72 is a reme-
dial statute that allows ‘‘for the correction of procedural
defects . . . where no prejudice had occurred and
where there was no impediment to the progress of the
case . . . .’’ Willamette Management Associates, Inc.
v. Palczynski, 134 Conn. App. 58, 68, 38 A.3d 1212
(2012). This court has noted situations in which a
‘‘defendant discovered the defect immediately and had
not pleaded responsively at the time that the case was
dismissed . . . thus, amendment [pursuant to § 52-72]
would not have prejudiced the defendant’s ability to
plead responsively. . . . All substantive allegations in
the complaint remained precisely the same. . . . The
defendant’s substantive rights were not affected by the
amendment . . . .’’ (Citation omitted.) Id.; accord
Hartford National Bank & Trust Co. v. Tucker, supra,
178 Conn. 478 (‘‘[t]he amended return only made the
original more specific; it did not deny the defendant
his right to notice of the complaint’s allegations’’). That
is precisely the case here. Although one can envision
a scenario in which the filing of an amended writ of
summons and complaint nunc pro tunc could materially
affect the interests of a party—such as when such filing
impacts the operation of a statute of limitation—the
undisputed facts of this case disclose no such impair-
ment. Neither the defendants nor the majority has iden-
tified any substantive interest implicated by what, in
essence, is a request to backdate the filing of an
amended pleading. As was the case in Coppola v. Cop-
pola, supra, 243 Conn. 666, the defendants in the present
case ‘‘received actual notice of the cause of action
within the statutory time frame’’ and would ‘‘[suffer]
no prejudice as a result’’ of the filing of the amended
summons and complaint nunc pro tunc. Because the
proposed filing of the plaintiff’s amended summons and
complaint nunc pro tunc does not affect the substantive
rights of the defendants in any manner, and because
it is undisputed that the plaintiff complied with the
statutory prerequisite of § 52-46a in filing his original
process with the court, I would conclude that the plain-
tiff’s request to file his amended summons and com-
plaint nunc pro tunc is technical, rather than
substantive, in nature, and thus within the purview of
§ 52-72.
Third, denying the plaintiff’s request to file his
amended summons and complaint with the court nunc
pro tunc, which results in the dismissal of his action
for lack of personal jurisdiction, also leads to an unfor-
tunate result and one ‘‘contrary to basic principles of
judicial economy and efficiency . . . .’’ Barry v. Qual-
ity Steel Products, Inc., 280 Conn. 1, 17–18, 905 A.2d
55 (2006). Like § 52-72, the accidental failure of suit
statute; General Statutes § 52-592; is a remedial statute
designed to alleviate the harsh effects of a judgment of
dismissal for lack of jurisdiction. Commonly known as
the ‘‘saving statute’’; see, e.g., Peabody N.E., Inc. v.
Dept. of Transportation, 250 Conn. 105, 116, 735 A.2d
782 (1999); Tellar v. Abbott Laboratories, Inc., 114
Conn. App. 244, 250, 969 A.2d 210 (2009); § 52-592 (a)
provides in relevant part that a plaintiff whose ‘‘action
has been dismissed for want of jurisdiction . . . may
commence a new action . . . for the same cause at
any time within one year after the determination of the
original action or after the reversal of the judgment.’’
Thus, due to the legislative grace embodied in § 52-592,
the parties, at the end of the day, likely will end up
once again before the trial court despite the present
dismissal for technical imperfection—albeit at signifi-
cant expense, in both time and resources, to the litigants
and the court. Cognizant of our obligation to interpret
§ 52-72 in a manner consistent with existing legislation
evincing a similar legislative policy; see Commissioner
of Public Safety v. Freedom of Information Commis-
sion, 312 Conn. 513, 527, 93 A.3d 1142 (2014); that
inefficient result further informs my interpretation of
§ 52-72 under the facts of this case.15 See Vibert v. Board
of Education, 260 Conn. 167, 177, 793 A.2d 1076 (2002)
(refusing to interpret statute in way that would lead to
bizarre result).
Finally, I note that § 52-72 is a remedial statute that
allows ‘‘for the correction of procedural defects . . .
where no prejudice had occurred and where there was
no impediment to the progress of the case . . . .’’ Wil-
lamette Management Associates, Inc. v. Palczynski,
supra, 134 Conn. App. 68; see also Coppola v. Coppola,
supra, 243 Conn. 666 (‘‘[i]t is undisputed that the defen-
dant received actual notice of the cause of action within
the statutory time frame [and] suffered no prejudice as
a result of the late return of process’’); Concept Associ-
ates, Ltd. v. Board of Tax Review, supra, 229 Conn.
625–26 (emphasizing that ‘‘the defendants do not claim
that the plaintiff’s motion to amend . . . prejudiced
them’’); Merrill v. NRT New England, Inc., 126 Conn.
App. 314, 322, 12 A.3d 575 (2011) (plaintiff’s amendment
of return date ‘‘in an effort to conform to § 52-46a . . .
did not deprive the defendants of any substantive rights,
nor did the defendants suffer any prejudice’’), appeal
dismissed, 307 Conn. 638, 59 A.3d 171 (2013) (certifica-
tion improvidently granted). The defendants have
advanced no claim of prejudice, nor can I conceive of
any, resulting from the plaintiff’s request to file his
amended summons and complaint nunc pro tunc in the
present case.
The defendants claim, and the majority concludes,
that the court properly determined that ‘‘the return of
process date . . . cannot be amended to be in
agreement with both § 52-46a and § 52-48 (b), as it must
be.’’ Underlying that conclusion are two critical pre-
sumptions. First, that conclusion presumes that the
plaintiff’s August 6, 2013 request for leave sought to
amend the date he filed his original, and defective, sum-
mons and complaint. That presumption is contrary to
the plain language of the plaintiff’s request, which
sought ‘‘permission to amend and serve his writ of
amended summons and complaint and file same with
the court nunc pro tunc . . . .’’ (Emphasis altered.)
Put simply, the plaintiff did not request leave to amend
the date his original summons and complaint were
filed—he requested leave to file his new, amended sum-
mons and complaint with the court nunc pro tunc to
secure compliance with § 52-46a due solely to a defect
concerning his original return date.16
Second, that conclusion presumes that the two
requests must be adjudicated sequentially under § 52-
72. I decline to read that statute in such a narrow fashion
and instead adhere to established precedent dictating
that § 52-72 is a remedial statute that must be liberally
construed in favor of the plaintiff. Concept Associates,
Ltd. v. Board of Tax Review, supra, 229 Conn. 623.
Moreover, it remains that the plaintiff sought leave to
simultaneously (1) amend the return date and serve an
amended summons and complaint on the defendants,
and (2) file that amended summons and complaint with
the court nunc pro tunc. Both aspects of that request
are consistent with the precedent of this state’s highest
court indicating that § 52-72 properly is utilized to
amend ‘‘defects in the return date or the return of pro-
cess to court.’’ New England Road, Inc. v. Planning &
Zoning Commission, supra, 308 Conn. 186. Although
that court has indicated that ‘‘[a]mended process must
still comply with § 52-46a and be returned at least six
days before the return date’’; Coppola v. Coppola, supra,
243 Conn. 666 n.11; the plaintiff’s simultaneous requests
served to ensure compliance therewith. In light of our
obligation to liberally construe that statute, as well as
the expressed policy preference 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, I eschew
the narrow and technical construction of § 52-72
espoused by the defendants and the majority. Had the
court in the present case granted the plaintiff’s request
‘‘for leave to amend, serve and file writ of summons
and complaint nunc pro tunc’’; (emphasis omitted); the
return date on his amended complaint would have been
May 21, 2013, and the date of his return of that process
to the court would have been May 14, 2013, thereby
complying fully with both §§ 52-46a and 52-48 (b). More-
over, no prejudice would have inured to the defendants.
Also misplaced is the defendants’ reliance on Rogozi-
nski v. American Food Service Equipment Corp., 211
Conn. 431, 559 A.2d 1110 (1989), in support of their
contention that § 52-72 may not be utilized to amend
the date of the plaintiff’s return of process. Decided
more than one-quarter century ago, Rogozinski con-
cerned a request to amend a late return of process
pursuant to General Statutes § 52-123.17 Only four pages
in length, Rogozinski’s concise analysis is understand-
able, as the plaintiff’s claim required little discussion.
Noting that § 52-123 ‘‘is used to provide relief from
defects in the text of the writ itself but is not available
to cure irregularities in the service or return of process,’’
the court held that the plaintiff could not obtain
recourse under that statute to remedy a defective return
of process. Id., 434. The court noted that circumstantial
defects, as that term of art is used in § 52-123, are
‘‘uniformly limited . . . to defects in the writ.’’18 Id.,
435. The court contrasted such circumstantial defects
with ‘‘defects in the process [that] are voidable and
therefore subject to abatement,’’ intimating that the
plaintiff’s request involved such a defect.19 Id. Signifi-
cantly, Rogozinski makes no mention whatsoever of
§ 52-72. In addition, that case predates the liberal inter-
pretation of § 52-72 articulated in Concept Associates,
Ltd. v. Board of Tax Review, supra, 229 Conn. 618,
Coppola v. Coppola, supra, 243 Conn. 657, and their
progeny. Rogozinski therefore has little relevance to
the issue of first impression presently before this court
regarding the proper construction of § 52-72.
Section 52-72 is a remedial statute that must be liber-
ally construed. Concept Associates, Ltd. v. Board of
Tax Review, supra, 229 Conn. 623. As such, this court
is obligated to resolve any ambiguity in that statute in
favor of the plaintiff; see Commissioner of Labor v.
C.J.M. Services, Inc., supra, 73 Conn. App. 53; and in
a manner that furthers its remedial purposes. Vincent
v. New Haven, supra, 285 Conn. 792. In the present
case, it is undisputed that the only defect with the plain-
tiff’s civil process was a return date that was two days
too late. See footnotes 3 and 4 of this dissenting opinion.
This case thus presents the precise scenario that § 52-
72 was enacted to address. See Concept Associates,
Ltd. v. Board of Tax Review, supra, 623 (legislative
intent ‘‘in enacting § 52-72 was to prevent the loss of
jurisdiction merely because of a defective return date’’).
Moreover, our Supreme Court has recognized that
the curative provision of § 52-72 properly is utilized to
amend, inter alia, ‘‘defects in . . . the return of process
to court.’’ New England Road, Inc. v. Planning & Zon-
ing Commission, supra, 308 Conn. 186. For that reason,
the plaintiff requested leave to ‘‘amend, serve and file’’
legal process pursuant to § 52-72. Our Supreme Court
has instructed that ‘‘in in interpreting the language of
§ 52-72, we do not write on a clean slate, but are bound
by . . . the purpose of the statute.’’ (Internal quotation
marks omitted.) New England Road, Inc. v. Planning &
Zoning Commission, supra, 186. In light of this court’s
obligation to liberally construe that remedial statute in
favor of the plaintiff, I would conclude that ‘‘civil pro-
cess which is for any reason defective,’’ as that terminol-
ogy is used in § 52-72 (a), encompasses both the
plaintiff’s request to serve an amended writ of summons
and complaint on the defendants, and his request to
file the same with the court ‘‘nunc pro tunc on May 14,
2013 . . . .’’ (Emphasis omitted.) To quote Coppola,
that construction ‘‘effectuates the statute’s remedial
purpose and statutory policy of amend[ing] . . . other-
wise incurable defects that go to the court’s jurisdic-
tion.’’ (Internal quotation marks omitted.) Coppola v.
Coppola, supra, 243 Conn. 665. I therefore would
reverse the judgment of the trial court dismissing the
action against the defendants for lack of personal juris-
diction.
1
Also named as defendants in the plaintiff’s complaint were Fasano,
Ippolito & Lee, P.C., and Alphonse Ippolito. They are not parties to this
appeal. I therefore refer to Fidelity National Title Insurance Company, Chi-
cago Title Insurance Company, and Bank of America, N.A., collectively, as
the defendants in this opinion.
2
General Statutes § 52-48 (b) provides: ‘‘All process shall be made return-
able not later than two months after the date of the process and shall
designate the place where court is to be held.’’
3
In its memorandum of decision, the court made an express finding that
the plaintiff’s return of service complied with § 52-46a.
4
At that time, the defendants had not filed any responsive pleadings.
5
The only defect alleged by the defendants concerned the tardy return
date.
6
The plaintiff’s pleading is titled ‘‘Request for Leave to Amend, Serve and
File Writ of Summons and Complaint Nunc Pro Tunc.’’ (Emphasis omitted.)
It states in relevant part that the plaintiff ‘‘hereby requests, pursuant to [§]
52-72, permission to amend and serve his writ of amended summons and
complaint and file same with the court nunc pro tunc, thereby amending
his complaint dated March 26, 2013 and making it returnable May 21, 2013
and filed nunc pro tunc on May 14, 2013.’’ (Emphasis in original.) Appended
to that request was an amended summons and complaint, as well as a
proposed order form. Significantly, the plaintiff’s pleading did not request
to amend the date that his original summons and complaint was filed. Rather,
he simply sought leave to file his new, amended summons and complaint
with the court ‘‘nunc pro tunc on May 14, 2013 . . . .’’ (Emphasis omitted.)
7
Black’s Law Dictionary defines ‘‘nunc pro tunc’’ as ‘‘[h]aving retroactive
legal effect through a court’s inherent power . . . .’’ Black’s Law Dictionary
(7th Ed. 1999) p. 1097. It literally means ‘‘now for then.’’ Ballantine’s Law
Dictionary (3d Ed. 1969) p. 873; see, e.g., Ridpath v. Board of Governors
Marshall University, 447 F.3d 292, 303 (4th Cir. 2006) (noting that ‘‘the
district court authorized the filing of the [a]mended [c]omplaint, nunc pro
tunc’’ [emphasis omitted]).
8
General Statutes § 52-46a requires that process in civil actions returnable
to the Superior Court shall be returned ‘‘to the clerk of such court at least
six days before the return day.’’
9
In its appellate brief, Bank of America, N.A., claims that the plaintiff
failed to brief the issue of whether the court improperly denied his request
to file his amended summons and complaint nunc pro tunc on May 14, 2013,
and thus has abandoned that issue. I disagree. It is plain to us that such a
challenge permeates the plaintiff’s principal appellate brief. Throughout that
brief, the plaintiff argues that the court improperly determined that he could
not amend and file legal process nunc pro tunc so as to comply with those
statutes. Specifically, on page thirteen of his brief, the plaintiff claims that
the court ‘‘erroneously decided that [his] request for leave to amend the
return [date] and the date the writ of summons and complaint were filed
is precluded’’ under Connecticut law. The plaintiff then proceeds to discuss
various decisions articulating the remedial purpose of § 52-72 before ulti-
mately concluding that his request for leave to amend ‘‘falls squarely within
the meaning of [§] 52-72 and may be corrected by amendment.’’ I therefore
reject the assertion that the plaintiff has abandoned that claim due to inade-
quate briefing. Because it addresses the merits of the plaintiff’s claim, I
presume the majority has done so as well.
10
The majority opinion cites Morgan v. Hartford Hospital, 301 Conn. 388,
402–403, 21 A.3d 451 (2011), in support of its narrow construction of defective
civil process under § 52-72. Morgan does not cite to or involve § 52-72 in
any manner. Rather, that case concerned civil process in the context of
written opinion letters of similar health care providers that ‘‘must be attached
to the complaint’’ pursuant to General Statutes § 52-190a. Id., 402. As such,
Morgan is inapposite to the present case, in which this court considers
‘‘civil process which is for any reason defective,’’ as that terminology is
used in § 52-72.
11
The legislative history of § 52-72 sheds minimal light on the issue before
us. In 2012, the legislature enacted House Bill No. 5365, entitled ‘‘An Act
Concerning Court Operations and Victim Services,’’ which addressed ‘‘cer-
tain circumstances that have occurred or to correct certain potential discrep-
ancies . . . in order to allow [the Judicial Branch] to effectuate things more
smoothly.’’ 55 H.R. Proc., Pt. 18, 2012 Sess., p. 5841, remarks of Representa-
tive Gerald M. Fox III. That legislation included a revision to § 52-72 (a),
which previously required our courts to ‘‘allow a proper amendment to civil
process which has been made returnable to the wrong return day or is for
any other reason defective, upon payment of costs taxable upon sustaining
a plea in abatement.’’ General Statutes (Rev. to 2009) § 52-72 (a). By removing
the specific reference to the ‘‘return day’’ and opting for a more general
statement regarding ‘‘civil process which is for any reason defective,’’ the
legislature made it clear that the remedial provision contained in § 52-72 is
not limited to curing defects with respect to a specified return date.
12
In New England Road, Inc., the Supreme Court described the holding
of Coppola as follows: ‘‘[I]n Coppola v. Coppola, [supra, 243 Conn. 661], the
plaintiff claimed that § 52-72 permitted the amendment of the return date
to correct a failure to return civil process to the court at least six days prior
to the return date as required by [§] 52-46a. In response, the defendant
claimed that the return date was proper and that the plaintiff was simply
late in returning process, a flaw which § 52-72 was not intended to amend.
. . . The defendant therefore claimed that the phrase for any other reason
defective did not encompass the late return of process. . . . This court
agreed with the plaintiff and concluded that a construction of the term
defective to permit an amendment of the return date to correct the failure
to return the process in a timely fashion effectuates the statute’s remedial
purpose and statutory policy of amend[ing] . . . otherwise incurable
defects that go to the court’s jurisdiction.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) New England Road, Inc. v.
Planning & Zoning Commission, supra, 308 Conn. 188.
13
As our Supreme Court has explained, the failure to include a summons
or citation in the service of process is substantive in nature because it
implicates ‘‘due process concerns’’; New England Road, Inc. v. Planning &
Zoning Commission, supra, 308 Conn. 192; and therefore likely prejudices
a defendant.
14
In Coppola v. Coppola, supra, 243 Conn. 660, the plaintiff complied in
some fashion with § 52-46a by filing her return of process with the Superior
Court, albeit belatedly.
15
In response to my invocation of the accidental failure of suit statute,
the majority cites to Rogozinski v. American Food Service Equipment Corp.,
211 Conn. 431, 559 A.2d 1110 (1989), a case that makes no mention of § 52-
72 and suggests in dictum that the existence of § 52-592 obviates the need
for relief under a remedial statute for defective return of process to the
court. Id., 435 n.2. Yet it remains that § 52-592 (a) is not confined to defects
with respect to return of process—it applies to a plaintiff whose ‘‘action
has been dismissed for want of jurisdiction . . . .’’ That remedial provision
thus applies not only to defective return of process, but also to defective
service of writs of summons and complaints, which likewise expose a plain-
tiff to a dismissal for lack of jurisdiction and which, as the majority recog-
nizes, are within the purview of § 52-72. Taken to its logical conclusion, the
suggestion that the existence of § 52-592 obviates the need for resort to
§ 52-72 intimates—incorrectly, in my view—that § 52-72 is a redundant, and
unnecessary, remedial statute.
That suggestion nevertheless highlights a principal distinction between
the respective views of the majority and this dissenting opinion. We both
recognize that, at the end of the day, the plaintiff likely will be able to return
to court and proceed with his action against the defendants pursuant to
§ 52-592. In light of that reality, as well as the ample precedent of this state’s
highest court commanding a liberal construction of § 52-72, I would permit
the plaintiff to serve his amended summons and complaint on those parties,
and file that amended summons and complaint with the court nunc pro
tunc. I see little reason to engage in a hypertechnical game of procedural
‘‘gotcha’’ when there is no prejudice to the defendants and the only meaning-
ful result is additional cost to the parties and the court.
Furthermore, it bears mentioning that the six day rule embodied in § 52-
46a is a vestige of an era long passed, in which horsepower had a literal
connotation and the return of process to court often necessitated days of
travel. See Daley v. Board of Police Commissioners, 133 Conn. 716, 719,
54 A.2d 501 (1947) (noting that precursor to § 52-46a originally was enacted
in 1744). Since that time, technological advances such as the internal com-
bustion engine and the computer dramatically have altered the manner in
which legal process is prepared and returned to our courts. Indeed, almost
every aspect of civil practice in this state today is filed electronically with
the Superior Court.
Whether such ancient practices serve any meaningful purpose in an age
of instantaneous electronic filing is a question beyond the scope of this
case, and more properly the purview of the legislature that crafted § 52-
46a. It nevertheless sheds additional light on the question of whether strict
adherence to the technical requirements of such statutory provisions govern-
ing the service and return of process is appropriate in cases in which a
party seeks recourse pursuant to a remedial statute and no prejudice results
to the opposing party.
16
Early in its discussion of the plaintiff’s claim, the majority states that
‘‘[t]he date the process is returned to court . . . is a matter of record and
an historical fact, and may not be altered.’’ Footnote 3 of the majority
opinion. The majority provides no authority for that proposition. Later, after
noting that the ‘‘relevant question, then, is whether the date process is
returned is substantive or technical in nature’’—a point with which I whole-
heartedly agree—the majority again asserts: ‘‘We conclude that the date
process is returned to court is an historical fact and may not be amended
by judicial fiat.’’ Similarly, in the concluding paragraph to its opinion, the
majority opines that ‘‘[t]o remedy the defect present here’’ would be ‘‘manipu-
lating an historical fact . . . .’’
Despite a canvass of Connecticut decisional law, I am unable to find any
legal significance attached to that nomenclature as it pertains to the issue
at hand, nor has the majority provided any legal authority or explanation
therefor. In a general sense, our decisional law has noted that historical
facts ‘‘constitute a recital of external events and the credibility of their
narrators.’’ Copas v. Commissioner of Correction, 234 Conn. 139, 152, 662
A.2d 718 (1995). The date of the plaintiff’s original filing is no more an
‘‘historical fact’’ than the May 28, 2013 return date set forth on the summons
filed on that date and memorialized as ‘‘a matter of record’’ in the trial court
file. Moreover, the majority’s proposition appears contrary to the authority
vested in our trial judges to permit, in their discretion, the amendment of
a party’s ‘‘pleadings or other parts of the record or proceedings,’’ as stated
in in Practice Book § 10-60 (a). See GMAC Mortgage, LLC v. Ford, 144 Conn.
App. 165, 184, 73 A.3d 742 (2013) (whether to allow amendment under § 10-
60 [a] ‘‘is a matter left to the sound discretion of the trial court’’ [internal
quotation marks omitted]).
Remedial statutes such as § 52-72 necessarily contemplate certain legal
fictions that are essential to their operation. As but one example, consider the
operation of General Statutes § 52-109, another remedial statute ‘‘intended to
soften the otherwise harsh consequences of strict construction under the
common law [and instruct] courts to be reasonable in their search for
technical perfection.’’ (Internal quotation marks omitted.) DiLieto v. County
Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 151, 998 A.2d 730
(2010). Surely, the identity of the plaintiff who commences civil litigation
in the Superior Court is as much ‘‘a matter of record and an historical fact’’;
footnote 3 of the majority opinion; as the date that legal process is returned
to the court. Yet § 52-109 nevertheless permits the substitution of a different
party as the plaintiff in order to ‘‘alter the hard and inefficient result that
attached to the mispleading of parties at common law.’’ (Internal quotation
marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C.,
supra, 150. As our Supreme Court has explained, application of that statute
necessarily relates back to, and corrects retroactively, prior defects. Id.
Accordingly, when § 52-109 is implicated, ‘‘the substituted party is let in to
carry on a pending suit [and is] treated and regarded for most purposes
just as if he had commenced the suit originally. The writ, the complaint,
the service of process, attachment made, bonds given, the entry of the case
in court, the pleadings if need be, in short all things done in the case by or
in favor of the original plaintiff . . . remain for the benefit of the plaintiff
who succeeds him, as if done by and for him originally and just as if no
change of parties had been made. So far as the defendant is concerned, the
same suit upon the same cause of action, under the same complaint and
pleadings substantially in most cases, goes forward to its final and legitimate
conclusion as if no change had been made.’’ (Internal quotation marks
omitted.) Id., 152. There is no good reason to distinguish between the applica-
tion of a remedial statute to permit the substitution of a different party as
plaintiff and the application of a remedial statute to permit the filing of
amended process intended solely to ensure compliance with the six day
rule of § 52-46a. In both instances, a harsh and inefficient result is averted.
In neither instance is the defendant prejudiced by application of the reme-
dial statute.
17
General Statutes § 52-123 provides: ‘‘No 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.’’
18
For that reason, I disagree with the majority that circumstantial defects,
as discussed in Rogozinski, ‘‘appear to be similar in nature to the technical
defects our Supreme Court discussed in New England Road, Inc. v. Plan-
ning & Zoning Commission, supra, 308 Conn. 180.’’ Whereas Rogozinski
plainly indicates that circumstantial defects pertain exclusively to defects
in the writ itself; Rogozinski v. American Food Service Equipment Corp.,
supra, 211 Conn. 435; our Supreme Court has recognized that technical
defects subject to amendment under § 52-72 are ‘‘limited’’ to ‘‘defects in the
return date or the return of process to court.’’ New England Road, Inc. v.
Planning & Zoning Commission, supra, 186; Coppola v. Coppola, supra,
243 Conn. 662 (rejecting claim that § 52-72 ‘‘does not encompass a late
return of process’’); Concept Associates, Ltd. v. Board of Tax Review, supra,
229 Conn. 625–26 (§ 52-72 utilized to cure defective return date).
19
Respectfully, Rogozinski did not state that ‘‘the General Assembly spe-
cifically considered this issue when it enacted General Statutes § 52-592,’’
as the majority asserts. Rather, the court actually stated: ‘‘Ostensibly, the
General Assembly specifically considered this issue when it enacted General
Statutes § 52-592 . . . .’’ Rogozinski v. American Food Service Equipment
Corp., supra, 211 Conn. 435 n.2. The omission of the prefatory word ‘‘ostensi-
bly’’ from the quoted material transforms mere dictum into a definitive
statement of law.