Opinion
CV156026509S
03-01-2016
Antoine Roberson v. Harold Daughma
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #114
Andrew W. Roraback, J.
I
BACKGROUND
On February 18, 2015, the plaintiff, Antoine Roberson, filed a single-count complaint against Harold Daughma, alleging that in the course of his work delivering mail, Roberson slipped and fell on an icy sidewalk on property owned and controlled by Daughma. The defendant Daughma then filed an apportionment complaint against his neighbors, Felix and Michelle Fonseca, with a return date of June 23, 2015 alleging that the fall in question took place on an icy sidewalk on property owned or controlled by them. The apportionment complaint and a writ of summons were served on the apportionment defendants on June 10, 2015. On August 24, 2015, the plaintiff e-filed an amended complaint that added a new negligence claim against the apportionment defendants. This amended complaint, along with a statement of the amount in demand, was served on the apportionment defendants by a state marshal on August 25, 2015. On September 15, 2015, both apportionment defendants filed their appearance.
The amended complaint brought by Roberson alleges the following facts. On or about February 20, 2013, the plaintiff was acting within the scope of his employment as a mail carrier when he entered the apportionment defendants' premises at 2190 North Main Street in Waterbury, Connecticut. The apportionment defendants owned and/or controlled this property and were responsible for its maintenance, including sidewalk, driveway, and walkway maintenance. The plaintiff was delivering the mail when he slipped and fell on the sidewalk, sustaining injuries. As a result of his injuries, the plaintiff was forced to expend large sums of money for medical care. Due to the accident, the plaintiff was unable to pursue his employment and suffered loss of wages and suffered and will continue to suffer, reduced earning capacity. The plaintiff's employer, USPS Waterbury Plaza Station, has expended a large sum of compensation for the plaintiff's injury and the lien will continue to increase to an indefinite amount in the future. The plaintiff seeks monetary damages.
On October 13, 2015, the apportionment defendants filed a motion to dismiss together with a memorandum in support of the motion, supported by affidavits of both apportionment defendants acknowledging service of the amended complaint. On October 30, 2015, the plaintiff submitted an objection to the motion with an accompanying memorandum. The matter was heard at short calendar on November 30, 2015.
II
DISCUSSION
" [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). Generally, " [a] defect in process . . . such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). " Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost." (Internal quotation marks omitted.) General Electric Capital Corp. v. Metz Family Enterprises, LLC, 141 Conn.App. 412, 420, 61 A.3d 1154 (2013).
A writ of summons " is an essential element to the validity of the jurisdiction of the court . . . Although the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book . . . the plaintiff's complaint must contain the basic information and direction normally included in a writ of summons." Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991). " Failure to comply in any fashion with these basic requirements . . . [is grounds for the court to grant the] motion to dismiss the complaint . . . for lack of personal jurisdiction over the defendant." (Citations omitted.) Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991).
The apportionment defendants argue that the amended complaint should be dismissed for lack of personal jurisdiction, because it was not served with a writ of summons. Since the apportionment defendants were not appearing parties when the amended complaint was served, they claim that in order to be valid, service needed to have been accomplished in the same manner as the original complaint, as required by General Statutes § 52-45a. In response, the plaintiff argues that it complied with Practice Book § § 10-12(c) and 10-13, by effectuating service upon the apportionment defendants, using a state marshal, in the same manner as the original complaint was served. The plaintiff further asserts that a writ of summons does not have to be served with an amended complaint. The direct claim against the apportionment defendants is brought pursuant to § 52-102b(d).
General Statutes § 52-45a provides in relevant part: " Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiff's complaint."
General Statutes § 52-102b(d) provides: " 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 language of General Statutes § 52-102b(d) does not include a provision for a nonappearing party; therefore, our rules of practice control." Tocco v. Wesleyan University, 112 Conn.App. 28, 32, 961 A.2d 1009 (2009). 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. 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.
III
CONCLUSION
For the foregoing reasons, the apportionment defendants' motion to dismiss is granted.