Olympia Mortgage Corp. v. Klein, 61 Conn. App. 305, 763 A.2d 1055 (2001)

CT: Underlying legal advice and representation matter 

Student Contributor:  Nicholas Kingsbury

Facts: Client sued his former attorney and served him with a summons and complaint. The court dismissed the client’s complaint ruling that the client wrote an improper return date on the document. An improper return date will raise a subject matter jurisdiction problem (the court’s power to hear a given dispute), which will kill a plaintiff’s claim. Here, the client put a return date 3 months from when he filed the summons and complaint, instead of the requisite 2 months. The client appealed the dismissal of his claim, arguing that General Statutes 52-72 allows him to amend his complaint to change the return date and fix the subject matter jurisdiction problem. The client filed a request with the court to amend his documents with the correct date; and the attorney did not object to it. However, the correct return date had already passed. The correct return date would have been May 1st, but the client put in the request on June 8th.

Issue: Can a malpractice plaintiff back-date the return date on the complaint (thereby saving his claim from dismissal) if the correct return date has already passed?

Ruling: Yes. The original “intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date." 52-72 is a very liberal rule, even allowing a plaintiff to correct the return date on his documents even if the proper date has already passed. This statutory rule reflects the court system’s general policy to save a plaintiff’s claim from being dismissed merely because of a procedural problem. Because of the liberal nature of the statute, the fact that the plaintiff filed an official request to change the date, and the fact that the opponent never objected, the plaintiff should be allowed to back-date his complaint to the correct return date.

Lesson: The courts appear to be lenient if a plaintiff makes a procedural error in her complaint against an allegedly negligent attorney. If you file the wrong return date, General Statutes 52-72 will give you an opportunity to fix the defect, even if the correct return date has already passed. However, it’s safer to get it right the first time. If the defending attorney had objected to the client’s request to amend the return date, this might have turned out differently.