Opinion
KNLCV166025901S
07-14-2017
Deborah Patterson v. Eastern Connecticut Housing Opportunities, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#120.00)
Timothy D. Bates, J.
This action arises out of an alleged slip and fall at 45-47 Division Street in Norwich, Connecticut on January 3, 2015. On January 12, 2016, the plaintiff, Deborah Patterson (plaintiff) filed a one-count complaint against the defendant, Eastern Connecticut Housing Opportunities, Inc. (ECHO). On August 29, 2016, ECHO filed a motion to implead the defendant Shane Rokowski D/B/A Shane's Snow Plowing (SSP). On November 7, 2016, the motion to implead was granted by this court. On December 1, 2016, SSP was served with the third-party complaint, which had a return date of December 13, 2016. On January 17, 2017, the plaintiff filed an amended complaint. In count two of the amended complaint, which is the only count at issue, the plaintiff alleges a negligence claim against SSP. Specifically, the plaintiff alleges that on or about January 3, 2015, the plaintiff was descending an exterior staircase when she slipped and fell on an accumulation of snow and/or ice. The plaintiff claims SSP was negligent in failing to properly maintain the area and failing to perform its responsibilities pursuant to its contract with ECHO. In the return of service attached to the complaint, the marshal states that he left an attested copy of the process at the usual place of abode of the third-party defendant, Shane Rokowski, on January 10, 2017. On January 20, 2017, SSP filed an appearance in the present action.
On February 16, 2017, SSP filed a motion to dismiss count two of the plaintiff's amended complaint on the ground that the court lacked personal jurisdiction over SSP due to the plaintiff's failure to comply with the service requirements of 52-102a(c) and therefore the plaintiff's claims were barred by the statute of limitations. SSP filed a memorandum of law in support of the motion to dismiss. On March 27, 2017, the plaintiff filed a memorandum in opposition to SSP's motion to dismiss. This motion was argued before the court at short calendar on April 3, 2017.
ANALYSIS
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). Practice Book § 10-30 provides in relevant part: " (a) A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 654 n.18, 974 A.2d 669 (2009).
SSP first argues that the plaintiff filed her amended complaint before SSP filed its appearance in the case, and, therefore, the plaintiff's failure to strictly comply with General Statutes § 52-102a(c), requiring the plaintiff to serve the defendant within twenty days after the appearance, deprives the court of personal jurisdiction over the plaintiff's claims against SSP. The plaintiff counters that the defendant failed to file a timely appearance, and, therefore, the plaintiff was required to serve SSP in accordance with the rules of practice. The plaintiff further contends that to the extent that § 52-102a(c) requires the plaintiff to serve the defendant within twenty days of the defendant filing an appearance, equity should prevent the defendant from challenging the plaintiff's service on the defendant.
The court will first address SSP's contention that the plaintiff failed to strictly comply with § 52-102a(c). SSP's argument is unpersuasive as it is dependent on the assumption that § 52-102a(c) creates a statutory cause of action that must be pleaded in strict conformity with the statute. Our Supreme Court has characterized § 52-102a as a " purely statutory procedure . . ." Senior v. Hope, 156 Conn. 92, 96, 239 A.2d 486 (1968); see also Schurgast v. Schumann, 156 Conn. 471, 487, 242 A.2d 695 (1968). General Statutes § 52-102a(c) provides in relevant part: " 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 original complaint . . ." (Emphasis added.) " [A] statute's plain meaning must be enforced . . ." Indian Spring Land Co. v. Inland Wetlands & Watercourses Agency, 322 Conn. 1, 14, 145 A.3d 851 (2016); see also General Statutes § 1-2z. " The word 'within' is of controlling importance. It means 'not longer in time than' . . . 'not later than.'" (Citation omitted.) Lamberti v. Stamford, 131 Conn. 396, 398, 40 A.2d 190 (1944). Applying this definition of " within" to § 52-102a(c), the statute provides in relevant part: " The plaintiff, [not longer in time than or not later than] twenty days after the third-party defendant appears in the action, may assert any claim against the third-party defendant . . ." Hopponen v. All Season Party Rentals, LLC, Superior Court, judicial district of Litchfield, Docket No. CV-09-6000615-S (November 16, 2010, Roche, J.) [50 Conn.L.Rptr. 876, ] (denying third-party defendant's motion to dismiss on the basis that the plaintiff's filing of the amended complaint, in which the third-party defendant is named, before the third-party defendant appears in the case, is sufficient to comply with 52-102a(c)).
Section 52-102a(c) provides: " 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 original complaint, and the third-party defendant, as against such claim, shall have available to him all remedies available to an original defendant, including the right to assert set-offs or counterclaims against the plaintiff."
Section 1-2z, " the plain meaning rule, " provides: " The meaning of a statute shall, in the first instance, be ascertained from 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, extratextual evidence of the meaning of the statute shall not be considered."
As previously noted, the plaintiff served the amended complaint on SSP on January 10, 2017, and filed the same with the court on January 17, 2017, both of which occurred before SSP filed an appearance in the case. Under our Supreme Court's definition of " within, " the language of the § 52-102a(c), providing for assertion of a claim " within twenty days . . ." means service on the third-party defendant must occur no later than twenty days after the third-party defendant appears in the action. Furthermore, in Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn.App. 136, 143, 727 A.2d 219 (1999), appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000), the Appellate Court declined to enforce the twenty-day provision based on the facts of that case, and partly because " [t]here are no cases of which we are aware that decide whether the twenty-day time limit should be strictly enforced." The court can see no reasonable interpretation of the statute that would prohibit a plaintiff from serving a third-party defendant prior to their appearance, particularly when the third-party defendant has failed to timely appear, nor is the court prepared to assume that the legislature, in enacting § 52-102a, intended such a result.
Moreover, this court will not interpret § 52-102a(c) in such a manner as to prohibit service of process that complies with Practice Book § § 10-12(c) and 10-13. Practice Book § 3-2, which governs the time to file an appearance, provides in relevant part: " Except where otherwise prescribed herein or by statute, an appearance for a party in a civil or family case should be filed on or before the second day following the return day . . ." When a party has not appeared, Practice Book § § 10-12(c) and 10-13 require that a claim against the nonappearing party must be served in the same manner as an original complaint. See Tocco v. Wesleyan University, 112 Conn.App. 28, 32, 961 A.2d 1009 (2009). Practice Book § 10-12 provides in relevant part: " (c) Any pleading asserting new or additional claims for relief against parties who have not appeared or who have been defaulted shall be served on such parties." Additionally, Practice Book § 10-13 provides 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 or as ordered by the judicial authority." When a plaintiff did not affect service on the nonappearing party in accordance with § § 10-12(c) and 10-13, it has been held that the court lacks personal jurisdiction over the defendant. See Tocco v. Wesleyan University, supra, 112 Conn.App. 32.
The plaintiff properly served SSP pursuant to the rules of practice governing nonappearing parties. Because SSP had not filed an appearance in response to the defendant's third-party complaint impleading SSP as is required by Practice Book § 3-2, the plaintiff, relying on Practice Book § § 10-12 and 10-13, served SSP with the writ, summons, and amended complaint on January 10, 2017, as evidenced by the marshal's return of service (#116.00). Thereafter, the plaintiff filed the amended complaint with this court on January 17, 2017. That the plaintiff served SSP prior to SSP filing its appearance in the case will not require dismissal, as SSP had knowledge of, and was in fact served, with the plaintiff's amended complaint. Service of process was effectuated by the marshal in the same manner that the original writ and complaint were served. See Practice Book § 10-13. Because SSP did not timely appear, the plaintiff was forced to serve SSP according to the rules of practice governing service on nonappearing parties. See Practice Book § § 10-12 and 10-13; see also Tocco v. Wesleyan University, supra, 112 Conn.App. 32. The court further concludes that there is no prejudice or surprise to SSP as a result of effectuating process in accordance with Practice Book § § 10-12 and 10-13. See Tarzia v. Great Atlantic & Pacific Tea Co., supra, 52 Conn.App. 144 (amended complaint permitted where it did not cause delay or prejudice to any party).
The return day on the third-party complaint is December 13, 2016. (See " Complaint by Third Party" #113.00.) Pursuant to Practice Book § 3-2, SSP would have had to file its appearance before December 16, 2016.
SSP next argues that the plaintiff's negligence claim is nevertheless barred by the two-year statute of limitations pursuant to § 52-584 as a matter of law because the plaintiff's injuries occurred on January 3, 2015, but the action against SSP commenced more than two years later when the plaintiff served SSP on January 10, 2017. The plaintiff counters that it is procedurally improper for the defendant to raise the statute of limitations as a ground for a motion to dismiss because a challenge based on the limitations period must be pleaded as a special defense.
Section 52-584 provides in relevant part: " No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
Ordinarily, a statute of limitations defense " must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless, " [when] . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter." State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012). " The purpose and effect of the statute [§ 52-102a] is to accelerate the accrual of the right to assert a claim against the impleaded person, and it does not affect his substantive rights . . . The statute is procedural in nature . . ." (Citation omitted.) Schurgast v. Schumann, supra, 156 Conn. 487. Accordingly, because count two of the plaintiff's amended complaint against SSP sounds in common-law negligence, the court declines to consider the merits of SSP's statute of limitations argument raised in its motion to dismiss.
Note that for purposes of determining whether a party brought an action within the applicable statute of limitations, " [i]n Connecticut, an action is commenced when the writ, summons and complaint have been served upon the defendant." Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004).
For the foregoing reasons, SSP's motion to dismiss the plaintiff's amended complaint is denied.