Opinion
FSTCV166029446S
02-02-2017
Premier Capital, LLC v. Jay Shaw
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#105.00)
Kenneth B. Povodator, J.
On August 7, 1991, judgment was entered against the defendant in a proceeding commenced by Charter Federal Savings Association, as alleged in the complaint and as documented by a copy of a court order attached to the plaintiff's complaint. The defendant does not appear to dispute these allegations, at least for purposes of the pending motion.
The current plaintiff is the assignee of that judgment, as a result of the receivership of Charter Federal and subsequent transfers. Again, for purposes of this motion, the defendant does not appear to challenge the plaintiff's status as assignee.
On August 5, 2016, the defendant was served with the writ, summons and complaint commencing this action, as reflected in the marshal's return of service as on file. On August 15, 2016, an amended complaint was served on the defendant, again as reflected in a marshal's return of service. As best the court can determine, the principal difference between the original complaint and amended complaint is that the amended complaint specifically refers to General Statutes § 52-598 whereas the original complaint made no mention of the statute.
The defendant has moved to dismiss, claiming that the court lacks subject matter jurisdiction to entertain this complaint. There are two aspects to the original motion as filed--the timeliness of the commencement of the proceeding and the use of a writ, summons and complaint to commence a new action as opposed to the filing of a motion in the earlier proceeding in which judgment had been rendered.
At argument on November 28, 2016, the court noted that § 52-598 is codified in the chapter of the general statutes relating to statutes of limitation, which presumptively are matters of defense rather than jurisdictional in nature. The court further identified Williams v. CHRO, 257 Conn. 258, 777 A.2d 645 (2001) as a case in which the Supreme Court had indicated that even as to limitation periods contained within statutes creating rights of action, there no longer would be an automatic assumption that the statutory timeframe was jurisdictional in nature. The court allowed the parties an opportunity to submit supplemental briefs, and both the plaintiff and defendant did file supplemental briefs.
Notably, in the defendant's supplemental brief, the defendant conceded that the claimed untimely commencement of the proceeding was not a jurisdictional issue but rather a matter of defense, but persisted in arguing that the commencement of a new action, rather than use of a motion in the earlier action, was a jurisdictional defect.
The parties cannot confer jurisdiction and cannot waive jurisdictional defects, Stefanoni v. Department of Economic and Community Development, 142 Conn.App. 300, 306, 70 A.3d 61 (2013), and therefore, the court cannot treat the concession relating to timeliness as conclusive. The court, however, agrees that the time limit set forth in the statute is not jurisdictional in nature, but that even if it were, it would not be an impediment to proceeding with this case.
The defendant overemphasizes the characterization of an amended complaint as the substitution of the new complaint for the old one, effectively constituting a withdrawal of the earlier pleading. On one level, that is correct; see, e.g., Connecticut Bank of Commerce v. Giordano, 67 Conn.App. 79, 81, 787 A.2d 9 (2001) (" The voluntary filing of an amended complaint operates as a withdrawal of the prior complaint, and, thereafter, the earlier complaint, [remains] in the files [as] part of the history of the case . . ."). However, that " withdrawal" quality is a consequence of the existence of a new superseding version; it does not represent an inherent discontinuity of the proceedings.
There is a difference between changing the operative complaint within a given proceeding, and the commencement of a new proceeding. Practice Book § 10-59 provides a grace period of 30 days in which a plaintiff may, as of right, amend the complaint--the defendant has cited no authority, and the court is unaware of any authority, that the utilization of the right conferred by that rule automatically constitutes commencement of a new cause of action (as a matter of law). To the contrary, that would conflict with the more generally applicable/available concept of relation back. Under the concept of relation back, when a complaint is amended at a later stage of proceedings (typically beyond the as-of-right 30 days), if there is a sufficient functional similarity between the old and new claims (such that the defendant had fair notice of the new claims), the new claims are treated, for purposes of a statute of limitations, as if they had been asserted at the time that the old claims were asserted. See, e.g., Briere v. Greater Hartford Orthopedic Group, P.C., 158 Conn.App. 66, 78, 118 A.3d 596, 603 (2015); cert. granted, 319 Conn. 950, 125 A.3d 529 (2015).
In this case, the sole change that the court could discern was the insertion (in two places) of the specific statute that is at the center of this motion and dispute--§ 52-598. At most, this might be perceived as a belated acknowledgment of the " need" to comply with Practice Book § 10-3, which generally has been treated as directory in nature. There has been no (apparent) substantive change in the complaint, and the fact that the change occurred during an of-right period to amend only reinforces the presumptive application of relation back to the original service of the original complaint. Again, assertion of the specific statute upon which the plaintiff claimed reliance does not constitute a new cause of action or a new claim for relief which might implicate concerns about relation back.
Therefore, even if the court were to treat this as a jurisdictional issue, the defendant could not prevail on the claim that the date of service of the amended complaint is the operative date for purposes of the whether a proceeding was commenced within the controlling statutory time period. As of the date of service of the original complaint, the defendant was on notice of the nature of the claim and the nature of the relief being sought, with the amendment not effectuating any material change in either respect.
The claim that the nature of this proceeding is improper--that the plaintiff should have proceeded via motion in the earlier case rather than commencing a new case--also does not appear to be jurisdictional in nature, but as with the earlier issue of timeliness, even if it were a jurisdictional issue, the defendant could not prevail. The court believes that the defendant has misread the statute.
The statute covers a number of possible postjudgment procedures. The statute discusses executions, which is a topic that is not applicable to the current situation. The defendant appears to conflate two other procedures that the statute addresses--institution of an action, and revival of a judgment. Parsing the statute may be the best way to clarify these distinctions.
Subsection (a) establishes two time limits: a time limit for issuance of an execution on a judgment (20 years), and a separate time limit for institution of an action on a judgment (25 years). Subsection (b) establishes similar time limits, if shorter, in connection with small claims matters.
Subsection (c) establishes a time limit for seeking to revive a judgment, but does not specify any explicit time period in which it must be done--instead, the timeframe in which to act is framed in terms of " prior to the expiration of any applicable period of time to enforce such judgment as set forth in this section."
The concept of reviving a judgment must be distinct from the concept of enforcing a judgment or an action on the judgment. Subsection (a) addresses enforcement by way of execution and the concept of an action on the judgment. If revival were synonymous with enforcement by execution or with action on a judgment, there would be no point in having subsection (c); subsection (a) would be all that is required. The distinction is emphasized by the last sentence in subsection (c), where the time for enforcement of a judgment is the outer limit for the effectiveness of an order reviving a judgment: " No order to revive a judgment may extend the time period to enforce a judgment beyond the applicable time period set forth in this section." When the General Assembly uses different terms (especially in a single statute), the presumption is that the distinction was intentional. See, e.g., Celentano v. Oaks Condominium Association, 265 Conn. 579, 609, 830 A.2d 164 (2003). Revival is distinct from enforcement by execution which is distinct from an action on a judgment.
Courts have recognized the distinction between revival of a judgment and an action on a judgment. A pair of related cases is especially informative in connection with this point. In Investment Associates. v. Lancia, No. CV074028746S, 2008 WL 2168983, at *2 (Conn.Super.Ct. May 5, 2008), the trial court discussed and recognized the concept of a suit on a judgment, noting that some cases have described the practice as being potentially vexatious or oppressive, but having a valid place in Connecticut jurisprudence. After the new-suit-on-a-judgment proceeding had been dismissed for lack of personal jurisdiction (in the Lancia decision), a motion to revive the judgment was filed in the antecedent case. That motion to revive was granted, and in turn resulted in an appeal, ultimately affirming the decision; Investment Associates v. Summit Associates, Inc., 132 Conn.App. 192, 195-96, 31 A.3d 820, 823 (2011), aff'd, 309 Conn. 840, 74 A.3d 1192 (2013).
Lancia was the only appellant in Summit (" The defendant Joseph D. Lancia appeals from the order of the trial court granting the motion to revive a judgment filed by the plaintiff, Investment Associates, pursuant to General Statutes § 52-598(c), " 132 Conn.App. at 194; see, also, 132 Conn.App. at 195, n.2).
The Investment Associates decisions demonstrate that there are two alternate approaches that are available to a judgment creditor, each with its own issues. A suit on a judgment is a new proceeding, such that personal jurisdiction may need to be established. A motion to revive may be able to rely on continuing jurisdiction, but presents other possible problems. (Potentially an issue here is that the plaintiff as an assignee would not have been a party to the earlier proceeding, such that the ability to move to revive might have required additional steps, such as seeking to be substituted as a plaintiff.)
Therefore, the plaintiff properly could elect either of two approaches discussed in, and limited by, § 52-598. The plaintiff opted for enforcement by a suit on the judgment, and the defendant's focus on the procedure for revival necessarily is inapt. The court need not determine whether it would have been a jurisdictional flaw if the plaintiff had sought to revive the earlier judgment by means of a new action; the plaintiff clearly indicated in the complaint that the new proceeding was a suit on the (old) judgment, and there is nothing jurisdictionally-inappropriate in adopting that strategy.
Conclusion
The court is not being asked to address the merits of the claims of the plaintiff nor the legal sufficiency of the allegations. The court has addressed compliance with the limitations period only to the extent that it was required to do so, given the defendant's contention that the limitation period is or may be jurisdictional in nature. The issue before the court is subject matter jurisdiction, and the court is satisfied that even if the issues raised were jurisdictional, there is no impediment to proceeding. As also explained, if more briefly, the court does not believe that the issue of timeliness can be characterized as jurisdictional in this context, and the plaintiff has attempted to utilize a recognized alternate strategy to revival of the earlier judgment.
For all of these reasons, then, the motion to dismiss is denied.