Opinion
No. FST CV 04 0200048 S
November 7, 2007.
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#112)
The plaintiff, Providencia Nieves, commenced this negligence action against the Stamford housing authority on April 6, 2004. She alleges the following facts in the operative complaint. While the plaintiff was a tenant and invitee on property that is owned and controlled by the housing authority, she was injured after she tripped and fell off of a handicap ramp, the railing of which did not extend the length of the ramp.
On June 14, 2004, the housing authority served an apportionment complaint with a return date of June 29, 2004, on L. Holzer Electric Company, Incorporated (Holzer). Therein, the housing authority alleges that it entered into a contract with Holzer pursuant to which Holzer installed the handicap ramp on which the plaintiff was allegedly injured. The housing authority further alleges that if the plaintiff was injured in the way in which she alleges in her complaint, her injuries were caused by the negligent manner in which Holzer installed the ramp and the railing. Thereafter, on September 8, 2004, the plaintiff amended her complaint to add a direct claim against Holzer in count three. In count three, she alleges that Holzer negligently installed the handicap ramp and railing and thereby caused her injury.
The housing authority also brought an apportionment complaint against Salamone Associates on the basis that it designed the railing and the handicap ramp at issue. When the plaintiff amended her complaint to add a claim against Holzer on September 8, 2004, she also added a negligence claim against Salamone Associates. Salamone Associates subsequently filed a motion to strike the housing authority's apportionment complaint against it, which the court, Wilson, J., granted on February 8, 2005.
On October 12, 2004, Holzer filed a motion to strike the housing authority's apportionment complaint. On January 18, 2006, Holzer filed a motion to strike count three of the plaintiff's complaint, accompanied by a supporting memorandum. The plaintiff filed a memorandum in opposition to that motion on February 8, 2006. The court, Adams, J., heard both motions on the short calendar on April 16, 2007, at which time the court granted Holzer's motion to strike the housing authority's apportionment complaint. This decision pertains to Holzer's motion to strike count three of the plaintiff's complaint.
Before Holzer filed the present motion to strike, another defendant, Salamone Associates filed a request to revise. The plaintiff filed an objection thereto, which the court, Jennings, J., overruled on December 5, 2005. On April 21, 2006, after Holzer filed its motion to strike, the plaintiff filed a request to amend the complaint, to which she attached proposed amended complaint, entitled "Revised Amended Complaint." In response thereto, Salamone Associates filed a motion for nonsuit premised on the plaintiff's failure to revise the complaint in compliance with the court's order overruling her objection to Salamone Associates' request to revise. On June 29, 2006, the plaintiff filed another request to amend, which is entitled "Request for Leave to Amend" and is dated June 21, 2006, to which she attached a proposed amended complaint. On July 5, 2006, the housing authority filed an objection to "the Request for Leave to Amend dated June 21, 2006," on the ground that the plaintiff failed to set out the nature of her proposed amendments in her request. On July 31, 2006, the court, Tobin, J., sustained the housing authority's objection, noting "no motion for leave to amend dated June 21, 2006 is on file."
Accordingly, the operative complaint for the purposes of deciding Holzer's present motion to strike is the "Revised Amended Complaint" that the plaintiff filed on April 21, 2006. This summary is provided solely for the purpose of clarifying the status of the plaintiff's pleadings, as the plaintiff's allegations against Holzer are essentially identical in all three amended complaints.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, "[the court must] take the facts to be those alleged in the complaint . . . [and] construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006).
The defendant moves to strike the third count of the plaintiff's complaint on two grounds: (1) the plaintiff did not timely file a direct claim against Holzer under the applicable apportionment statute; and (2) the plaintiff may not file a direct claim against Holzer because the court struck the housing authority's underlying apportionment complaint against Holzer on April 16, 2007. The plaintiff concedes that she did not timely file her direct claim against Holzer. Instead, she counters that her failure to do so implicates the court's personal jurisdiction over Holzer, and Holzer has waived its right to contest personal jurisdiction because it failed to file a timely motion to dismiss.
The defendant's motion and memorandum raise only the first ground. The defendant introduced the second ground during oral argument on April 16, 2007. "In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980). Therefore, the court is not obligated to address the defendant's second ground.
Holzer's first argument is founded on General Statutes § 52-102b, which sets forth the rules that apply to apportionment of liability in negligence actions. Once the apportionment defendant has been served with an apportionment complaint under the provisions of § 52-102b(a), subsection (d) provides in relevant part that "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." (Emphasis added.) In this case, it is undisputed that the return date on the housing authority's apportionment complaint is June 29, 2004, and that the plaintiff did not file her amended complaint containing her direct claim against Holzer until September 8, 2004, which is 71 days after the return date.
Holzer cites to several cases in which the Superior Court has held that § 52-102b(d) requires mandatory compliance and implicates the court's subject matter jurisdiction. In 2004, after the cases that Holzer relies upon were decided, our Supreme Court, in discussing § 52-102b(a), decided that although the time limit stated therein is mandatory, "§ 52-102b is a service provision . . . that . . . implicates personal jurisdiction rather than subject matter jurisdiction." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 33, 848 A.2d 418 (2004). Further, the court explained, mandatory time limits are subject to waiver. Id., 35-36. Pursuant to case law and Practice Book § 10-32, "[a] challenge to a court's personal jurisdiction . . . is waived if not raised by a motion to dismiss within thirty days of the filing of an appearance." Id., 32.
See McFarland v. Girao, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 01 075782 (December 5, 2002, Moran, J.); Petro v. Gonsor, Superior Court, judicial district of Fairfield, Docket No. CV 98 0354832 (June 5, 2001, Rush, J.); Perazelli v. Tilcon Connecticut, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 99 0154903 (November 6, 2000, Rogers, J.); Verner v. Lovallo, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 97 0161204 (October 13, 1998, D'Andrea, J.) (23 Conn. L. Rptr. 191).
Practice Book § 10-32 provides in relevant part: "Any claim of lack of jurisdiction over the person . . . is waived if not raised by a motion to dismiss filed . . . within the time provided by Section 10-30." In turn, Practice Book § 10-30 provides in relevant part: "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.
In Carpenter v. Law Office of Dressler Associates, LLC, 85 Conn.App. 655, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004), the court specifically applied the holding of Lostritto to direct claims brought by plaintiffs against apportionment defendants under subsection (d) of § 52-102b. In Carpenter, the plaintiff appealed from a trial court decision granting the apportionment defendants' motion to dismiss the direct claim that the plaintiff filed against them under § 52-102b(d). The Appellate Court reversed the trial court's dismissal on the ground that the apportionment defendants waived any objection they had to the plaintiff's claim by not filing a motion to dismiss within thirty days of the date they filed their appearance, as required by Practice Book §§ 10-30 and 10-32 and case law. As the court explained, "[b]ecause § 52-102b implicates personal jurisdiction, a party must object to defective service of process for a claim brought pursuant to the statute within thirty days of the filing of an appearance. Failure to do so waives any objection." (Emphasis added.) Id., 662.
In the present case, Holzer entered its appearance on September 27, 2004, and did not file the present motion to strike contesting the court's personal jurisdiction until January 18, 2006. Notwithstanding the fact that the proper vehicle to contest personal jurisdiction is a motion to dismiss, Holzer's personal jurisdiction challenge was filed over a year and a half after its appearance, which is well in excess of the requisite thirty days provided by Practice Book § 10-30. Holzer's motion to strike is denied because a challenge to personal jurisdiction under § 52-102b(d) is waiveable, and Holzer waived its rights by not challenging jurisdiction within the proper time frame.
Practice Book § 10-31(a)(2) provides in relevant part: "The motion to dismiss shall be used to assert . . . lack of jurisdiction over the person. . ."
Holzer's second ground for its motion to strike, even if it were properly set out in the motion to strike, lacks legal merit. Holzer argued that because the court granted its motion to strike the housing authority's apportionment claim against Holzer on April 16, 2007, the plaintiff can no longer properly assert a direct claim against Holzer through § 52-102b(d). The Appellate Court also addressed this issue in Carpenter. In that case, the plaintiff argued that the trial court improperly decided that it lacked jurisdiction over the apportionment defendant because it had previously decided that it did not have subject matter jurisdiction over the defendant's apportionment complaint. Carpenter v. Law Office of Dressler Associates, LLC, supra, 85 Conn.App. 657.
The Appellate Court held that an apportionment complaint that is later determined to be improper does not retroactively effect direct claims that the plaintiff asserted against an apportionment defendant while the apportionment complaint was still pending. Id., 660-61. The court noted that, "[a]t the time [the plaintiff] amended her original complaint to include the direct claims against the apportionment defendants, the court had yet to rule on the motion to strike the apportionment complaint. With the apportionment complaint still in place, there was no reason that the plaintiff could not `plead over' pursuant to § 52-102b(d) and assert direct claims against the apportionment defendants . . . As a court of general jurisdiction, the trial court had the power to adjudicate the . . . claims the plaintiff brought directly against the apportionment defendants. Because the Supreme Court in Lostritto v. Community Action Agency of New Haven, Inc.,. . . found § 52-102b to be a service provision, the trial court improperly based its dismissal of the plaintiff's [direct] claims against the apportionment defendants on lack of subject matter jurisdiction over the apportionment complaint." (Citation omitted.) Id.
"More recent Superior Court decisions have interpreted Carpenter to mean that the lack of viability of the apportionment complaint is not fatal to a direct claim asserted by the plaintiff." (Internal quotation marks omitted.) Taricani v. Cary's Real, LLC, Superior Court, judicial district of New Britain, Docket No. CV 04 5000087 (January 23, 2007, Shapiro, J.) (42 Conn. L. Rptr. 817, 818). Here, as in Carpenter, the plaintiff filed her direct claim against Holzer before the court granted Holzer's motion to strike the apportionment complaint. The motion to strike is denied.
SO ORDERED.