Opinion
CV156057669S
05-03-2017
Kenneth Johnson v. Tower Business Center, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#120)
Jane S. Scholl, J.
The plaintiff admits that the Practice Book required that the Amended Complaint in this matter be served in the same manner as required for service of an original complaint and that manner of service is specified in General Statutes § 52-50(a). The plaintiff claims he complied with that provision by properly serving the Amended Complaint on Central Plowing. But it is undisputed that there was no writ of summons served on the defendant Central Plowing. General Statutes § 52-50 refers to the direction of process to any proper officer. General Statutes § 52-45a requires that a civil action be commenced by legal process consisting of a writ of summons and accompanied by the plaintiff's complaint. The process here did not contain such a summons and is therefore defective.
The court agrees with Judge Roraback's decision in Roberson v. Daughma, Superior Court, judicial district of Waterbury, Docket No. CV156026509S (Mar. 1, 2016) . There the court held that a direct action by a plaintiff against a non-appearing apportionment defendant must be accomplished by proper service of a writ, summons and complaint. The court relied on the Appellate Court's decision in Tocco v Wesleyan University, 112 Conn.App. 28 (2009), where the court held that a service of a direct complaint by a plaintiff against a non-appearing apportionment defendant could not be effected by simply mailing it to the apportionment defendant.
The Roberson decision states: " Practice Book § 10-12(c) provides in relevant part: 'Any pleading asserting new or additional claims for relief against parties who have not appeared . . . shall be served on such parties.' Further clarification is provided in Practice Book § 10-13, which states in relevant part: 'Service pursuant to Section 10-12(c) shall be made in the same manner as an original writ and complaint is served . . .' In Tocco v. Wesleyan University, supra, 112 Conn.App. at 32, the Appellate Court held that '[t]he meaning of Practice Book § § 10-12(c) and 10-13 is plain and unambiguous that a nonappearing party must be served in the same manner as required for service of an original complaint.' In Watson v. Sardo, Superior Court, judicial district of Waterbury, Docket No. CV-09-5014771 (October 13, 2010, Trombley, J.) (50 Conn.L.Rptr. 749), the court examined a plaintiff's attempt to serve an amended complaint on an apportionment defendant who had not yet appeared in the case. The court found that '[a]s in Tocco [the] plaintiff in this case was obligated to comply with the cited sections of the practice book. The plaintiff did not do so. As a consequence, the court did not acquire personal jurisdiction in so far as the plaintiff's attempt to assert a claim against [the apportionment defendant] is concerned.' Watson v. Sardo, 50 Conn.L.Rptr. 750. Similarly, the apportionment defendants in the present case had not filed an appearance when the plaintiff attempted to serve them with the amended complaint. Thus, the plaintiff was obligated to comply with § § 10-12(c) and 10-13 of the Practice Book and effectuate service in the same manner as the original complaint. As the Tocco court instructed, a writ of summons must be included for service to be completed in the same manner as the original complaint. The plaintiff, however, failed to include a writ of summons when serving the apportionment defendants with the amended complaint, and therefore, service did not conform to the requirements under Practice Book § § 10-12(c) and 10-13. Consequently, the court lacks personal jurisdiction over the apportionment defendants."
For the same reasons cited by the court in Tocco and Roberson this court lacks personal jurisdiction over the apportionment defendant, Central Plowing, as to the Third Count of the plaintiff's Amended Complaint which seeks to assert a direct claim against Central Plowing.
Therefore the motion to dismiss is granted.