Opinion
No. FST CV 06-5002018 S
October 31, 2007
MEMORANDUM OF DECISION
This memorandum of decision considers whether a complaint asserting claims against apportionment defendants, filed after the expiration of the sixty-day period provided for such claims under General Statutes § 52-102b(d), can be successfully attacked by a motion to dismiss.
In their original complaint, dated August 2, 2006, the plaintiffs alleged that their property located at 204 Tokeneke Road in Darien had suffered flooding as the result of the diversion of surface water from property owned by defendants Robert and Catherine Barrett located at 26 Great Hill Road in Darien. The Barrett defendants filed an apportionment complaint citing in Lucy Oldrin ("Oldrin"), LBM Engineering, LLC ("LBM") and New Ridge Builders, Inc. ("New Ridge") as apportionment defendants. The apportionment complaint claims that if the plaintiffs were damaged as alleged in their complaint the apportionment defendants were negligent and their negligence caused some or all of the plaintiffs' damages.
Apportionment defendant Oldrin is the owner of property located at 24 Great Hill Drive in Darien adjacent to the property owned by the Barrett defendants. The apportionment complaint alleges that she caused the plaintiffs' damages "by resurfacing and regarding (sic)" her property. Apportionment defendants, LBM and New Ridge were contractors engaged by the Barrett defendants to perform resurfacing and regrading work on their property.
The return date of the apportionment complaint was November 21, 2006. The plaintiffs did not file a complaint against the apportionment defendants within sixty days of the return date as they were authorized by General Statutes § 52-102b(d). However, on August 29, 2007, 239 days after the return date of the apportionment complaint, the plaintiffs filed a pleading entitled "Complaint Against Third Party Defendants." That pleading contained three counts, one directed against each of the apportionment defendants cited in by the defendants. The complaint asserts that it is filed "[p]ursuant to section 52-102(c)." The record does not show that the pleading was authorized under Practice Book § 10-60 or any other applicable provision.
"(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint."
The General Statutes do not contain any statute designated as "section 52-102(c)." Presumably, the plaintiffs sought to designate General Statutes § 52-102a(c) which provides: "(c) The plaintiff, within twenty days after the third party defendant appears in the action, may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's complaint against the third-party plaintiff."
On September 11, 2007, apportionment defendant New Ridge filed a motion to dismiss the plaintiffs' August 29, 2007 complaint on the ground that it was "not timely under Connecticut General Statutes Section 52-102b(d) or 52-102a(c)." The motion claims that the court either lacks personal jurisdiction over New Ridge with respect to the plaintiffs' claims and/or lacks subject matter jurisdiction over the claim. In the memorandum of law submitted with the motion to dismiss, New Ridge points out that it was brought into the case as an apportionment defendant pursuant to General Statutes § 52-102b and not as a third-party defendant pursuant to General Statutes § 52-102a. The provisions of § 52-102b(d) require that any claims which the plaintiffs may have had against New Ridge had to be asserted within sixty days of November 21, 2006.
In relevant part, Practice Book § 10-31 provides that a "motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person. . ." Practice Book § 10-30 requires that a motion to dismiss must be filed within thirty days of the filing of an appearance.
In their brief in opposition to the motion to dismiss the plaintiffs claim that the untimeliness of their complaint against New Ridge does not deprive the court of either personal jurisdiction over New Ridge or of subject matter jurisdiction. In that brief, the plaintiffs do not clarify whether the reference to General Statutes "section 52-102(c)" was intended to refer to § 52-102b(d) or to § 52-102a(c). The plaintiffs simply assert that the time limits imposed by both statutory provisions are not jurisdictional. The plaintiffs claim that their position is supported by the Appellate Court's holding in Tarzia v. Great Atlantic and Pacific Tea Co., 52 Conn.App. 136 (1999), appeal dismissed, 254 Conn. 786 (2000).
The court finds that the plaintiff's reliance on Tarzia, supra, is misplaced. In that "slip and fall" case the plaintiff sued a supermarket for injuries he received in a fall while walking in the parking lot. The supermarket filed a third-party complaint against its landlord claiming that the provisions of its lease required the landlord to keep the parking lot in a safe condition. Forty-seven days after the landlord appeared in the case, the plaintiff filed a document entitled "assertion of claim" adopting the supermarket's allegations and claiming that it was seeking damages from the landlord for his injuries. After the trial had commenced the plaintiff sought to amend his complaint to include a claim against the landlord. The court denied the plaintiff's motion. Subsequently the court granted summary judgment in favor of the supermarket when the plaintiff could not show that it was in possession and control of the parking lot where he was injured.
On appeal the Appellate Court found that the trial court had abused its discretion by denying the plaintiff's motion to amend his complaint to assert a claim against the landlord and further found that the trial court should not have granted the supermarket's motion for summary judgment. The court also held that although the plaintiff's "assertion of claim" was not filed within twenty days of the landlord's appearance as required by General Statutes § 52-102a(c), there was no authority that the statutory time period had to be strictly enforced. The Appellate Court stated:
The plaintiff did not need to add [the landlord] to the suit by way of writ, summons and complaint as was necessary when [the supermarket] added [the landlord] as a third party defendant as provided by § 52-102a(a). [The landlord] was already a party in the case when the plaintiff asserted his claim and when the plaintiff attempted to amend his complaint. As such, [the landlord] had the right to address claims against him by [the supermarket] and by the plaintiff and could also address the claim of the plaintiff against the original defendant. Because the original defendant's fate, vis-a-vis the plaintiff, directly affected [the Landlord], the status of the three parties was intertwined. [The landlord], at the time the plaintiff asserted his claim against him, was not only a third party defendant but was, as to the plaintiff, the same as an original defendant.
The plaintiff argues that since the twenty days after appearance time limitation imposed by General Statutes § 52-102a(c) was not mandatory, it follows that the sixty day after return date limitation imposed by General Statutes § 52-102b is also not mandatory. The court disagrees. There are substantial differences between the operation and purposes of the two statutes.
Third-party practice was not recognized in Connecticut at common law. Puleo v. Goldberg, 129 Conn. 34 (1942). A party not originally named could be brought into an action only if absolutely necessary to the resolution of the claim set forth in the complaint. Harrall v. Leverty, 50 Conn. 46, 63 (1882) In 1965 the legislature enacted General Statutes § 52-102a permitting a defendant, for the first time, to move for permission to serve a complaint on a person, not a party to the case who may be liable to the defendant for all or a portion of the plaintiff's claim. Section (b) provides that a third-party defendant shall have all the rights and remedies of an original defendant, including the right to file defenses, counterclaims and cross claims. A third-party defendant is also entitled to assert on behalf of the third-party plaintiff any defenses which that party has to the plaintiff's claim. Subsection (c) of that statute permits a plaintiff to assert any claim against the third-party defendant within twenty days of that party's appearance.
Our apportionment statute General Statutes § 52-102b was enacted in 1995. Subsection (a) of that statute provides that any apportionment writ, summons and complaint "shall be served within one hundred twenty days of the return date." That subsection further provides that a party cited in as an apportionment defendant "shall be a party for all purposes." Subsection (d) states that a "plaintiff may, within sixty days of the return date of the apportionment complaint . . . assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint."
The Supreme Court has held that, in most cases, the one hundred twenty-day requirement of General Statutes § 52-102b(a) implicates the personal jurisdiction of the court. In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10 (2004), the court was required to determine whether the one hundred twenty-day time limitation set forth in General Statutes § 52-102b(a) was mandatory or directory. The court found that the legislature's use of the word "shall" in the statute suggested the intent to make service within the time provided mandatory. Id. at 20. The court also noted that General Statutes § 52-102b(f) provides that the provisions of the statute "shall be the exclusive means by which a defendant may cause a party to brought in as an apportionment defendant. . ." Id. at 21. The court went on to review the legislative intent in enacting Tort Reforms I and II and the fact that General Statutes § 52-102b was enacted to provide a practical means to accomplish the apportionment objectives of Tort Reform II as set forth in General Statutes § 52-572h. Id. at 23-25. The court then found that the one hundred twenty-day time limitation was designed to accomplish a substantive purpose rather than a procedural one and that therefore the time limitation was mandatory. Id. at 25. The court determined that the failure to comply with the statute implicated the court's personal jurisdiction over the apportionment defendant and not the court's subject matter jurisdiction. Id. at 33. Ultimately the court found that the mandatory time limits of General Statutes § 52-102b(a) "must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties." Id. at 35-36.
In Pedro v. Miller, 281 Conn. 112 (2007), the court considered the equities arising when a plaintiff injured in a motor vehicle accident filed an amended complaint, more than a year after the return date, claiming that her injuries were exacerbated during treatment. The defendant motorist sought to serve an apportionment complaint on the plaintiff's treating physician. The trial court granted the physician's motion to dismiss concluding that it lacked personal jurisdiction over the physician because the apportionment complaint was not served within the one hundred twenty days following the return date of plaintiff's complaint as required by General Statutes § 52-102b(a). The court found that the motion to dismiss was improperly granted. The court found that the trial court was required to consider the equitable implications of the situation even in the absence of waiver or consent. The court held that the fact that the claims implicating the possible liability of third parties for the plaintiff's injuries did not arise until the amended complaint was filed was a sufficient equitable consideration to require that the motion to dismiss be denied.
In Carpenter v. Law Offices of Dressler and Assoc., LLC, 85 Conn.App. 655 (2004), the Appellate Court considered the jurisdictional implications which arose when a client sued her former attorney for malpractice and the defendant attorney served an apportionment complaint on three attorneys who had succeeded him in representing the plaintiff. The plaintiff amended her complaint to assert direct claims against the apportionment defendant within sixty days of the apportionment defendants' appearance as required by General Statutes § 52-102b(d). The trial court granted the apportionment defendants' motion to strike the apportionment complaint finding that the plaintiff's claim was not one resulting in personal injury, wrongful death or property damage and thus not subject to apportionment. Thereafter the trial court granted the apportionment defendants' motion to dismiss the plaintiff's claims against them. The Appellate Court found that under Lostritto, supra, the trial court improperly found that it did not have subject matter jurisdiction. The court further found that the court did have subject matter jurisdiction over the plaintiff's direct claims against the apportionment defendants and that any lack of personal jurisdiction was waived when the apportionment defendants failed to raise that issue within thirty days of their appearance.
The causes of action set forth in the plaintiffs' August 29, 2007 complaint sound in negligence and nuisance. The Superior Court clearly has subject matter jurisdiction over such claims. Considering the claims of New Ridge in light of the Appellate Court holding in Carpenter, supra, the court finds that it has both personal jurisdiction and subject matter jurisdiction with respect to the plaintiffs' claims. Accordingly, defendant New Ridge's motion to dismiss must be denied. Moreover, to the extent that it seeks to challenge personal jurisdiction, New Ridge's motion to dismiss is untimely in that it was not filed within thirty days of New Ridge's appearance as required by Practice Book § 10-30.
An untimely complaint filed by a plaintiff against an apportionment defendant can be attacked by a timely objection to a request for leave to amend a complaint to assert such claims under Practice Book § 10-60(a). Esposito v. Filene's, Inc., CV 04 500046 (July 25, 2006, Lewis, J.T.R.). If, as is the case here, the plaintiffs have filed a complaint asserting such claims without complying with the requirements of the Practice Book, the apportionment defendants may file a motion to strike under Practice Book § 10-39. Alderman Alderman v. Millbrook Owners, CV 00 0802857 (August 27, 2001, Beach, J.).