Opinion
No. CV04-0183682S
July 5, 2005
MEMORANDUM OF DECISION
Before the court is a motion to dismiss an apportionment complaint on the grounds that the apportionment plaintiff failed to meet the service requirements in subsection (a) of General Statutes § 52-102b to add an entity as a defendant for apportionment of liability purposes. Resolution of this issue turns on whether the term "original complaint" in the statute refers to the plaintiff's original complaint or to the apportionment plaintiff's complaint.
General Statutes § 52-102b provides in relevant part: "(a) A defendant in any civil action to which Section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within CT Page 11090-e one hundred twenty days of the return date specified in the plaintiff's original complaint. The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint. The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under Section 52-572h.
"(b) The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed. The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party." (Emphasis added.)
FACTS
This case arises out of a slip and fall accident that took place on January 11, 2003. The plaintiff, David Dugan, filed a complaint against the defendant, the Vernel Company (Vernel) dated February 19, 2004 with a return date of March 23, 2004. The plaintiff then filed an amended complaint on March 26, 2004 and a motion, which was granted, to add Mark McCarthy (McCarthy) as a co-defendant to the original suit. Vernel then brought an apportionment claim against McCarthy dated June 24, 2004. McCarthy subsequently filed an apportionment complaint against Dow Condon, Inc. (Dow) on November 10, 2004, which was served on Dow on November 5, 2004 with a December 7, 2004 return date specified. Dow then timely filed this motion to dismiss.
Dow argues that the court should grant its motion to dismiss because it was not served with McCarthy's apportionment complaint within 120 days of the return date of the plaintiff's original complaint as required by General Statutes § 52-102b(a). McCarthy argued in opposition to the motion to dismiss at short calendar that § 52-102b(b) indicates that as an apportionment plaintiff, all remedies available to the original plaintiff should be available to him and that, therefore, the term "original complaint" in the statute should be interpreted to mean the apportionment complaint filed by Vernel, not the plaintiff's original complaint. CT Page 11090-b
One Hundred Twenty days of the return date specified in the plaintiff's complaint was July 21, 2004. One Hundred Twenty days of the return date specified in the apportionment plaintiff's (Vernel's) complaint was November 17, 2004. The apportionment writ, summons and complaint were served on Dow on November 5, 2004. If the term "original complaint" is interpreted to mean the plaintiff's original complaint and not the apportionment complaint, this court would lack jurisdiction over Dow based on McCarthy's failure to comply with § 52-102b(a).
DISCUSSION
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, 826 A.2d 138 (2003). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993)."The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31."Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989); but see Calluzzo v. Board of Tax Review, 44 Conn.Sup. 39, 666 A.2d 841 (1995).
Dow contends that the court lacks subject matter and personal jurisdiction because McCarthy has failed to comply with the time limit of 120 days required by § 52-102b(a) and cites numerous cases holding the time limit requirement mandatory not directory. McCarthy did not file a memorandum of law in opposition to Dow's motion to dismiss but argued at short calendar on March 7, 2005, that the 120-day time limit should be calculated from the return date of the apportionment complaint. In support, McCarthy cited the language of § 52-102b(b), which states that the "apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party." As noted above, McCarthy was not a party to the lawsuit in the original complaint. He argues that, if the time limit is calculated from the return date of the plaintiff's original complaint, he will have lost the statutory remedy granted to apportionment defendants. CT Page 11090-c
As a preliminary matter, the issue presented by Dow's motion to dismiss is one of personal jurisdiction alone, not subject matter jurisdiction as Dow argues in its memorandum of law in support. "[J]urisdiction over the person, jurisdiction over the subject matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court . . . Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person . . ." (Citation omitted; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).
In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004), one of the issues on appeal was whether the 120-day time limit in § 52-102b(a) for service of the apportionment complaint is mandatory or directory. The Lostritto court held "that the 120 day time limitation contained in § 52-102b(a) is mandatory." Id., 14. "[M]andatory time limitations must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties." Id., 35. No evidence of waiver or consent has been offered in the present case. In Lostritto, the court did not specifically address the issue of which complaint, the plaintiff's original or the apportionment, should be used to calculate the time limit. The Lostritto court did, however, ultimately agree with the appellee's claim that the trial court lacked personal jurisdiction over the apportionment defendant because the apportionment complaint was not filed within 120 days of the return date specified in the plaintiff's original complaint, as required by § 52-102b(a). If the court was interpreting the "original complaint" language in § 52-102b(a) to mean the apportionment complaint, it would most logically have referred to the relevant complaint as the "defendant's apportionment complaint" or the "apportionment plaintiff's complaint." There is no indication in Lostritto that the court calculated the 120-day time limit from the return date of the apportionment complaint.
Although Connecticut's appellate courts have not directly addressed this issue, a number of Superior Court cases have, and the majority of these strictly read § 52-102b(a) as mandatory and requiring service within 120 days of the return date of the original, underlying complaint, not the return date of any subsequent complaints. See, e.g., Norwich Housing Authority v. Malmfeldt Group, Inc., Superior Court, judicial district of New London, Docket No. CV 04 0128938 (May 10, 2005, Hurley, J.T.R.) ( 39 Conn. L. Rptr. 308); Ferrajina v. Farnam, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FST CV 04 0199973 (May 16, 2005, Lewis, J.T.R.); Pedro v. Miller, Superior CT Page 11090-d Court, judicial district of New London, Docket No. CV 03 0564838 (May 17, 2005, Hurley, J.T.R.) ( 39 Conn. L. Rptr. 364); Byers v. Standard Investors, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0283495 (March 23, 2004, Wiese, J.) ( 36 Conn. L. Rptr. 814); Travelers Property Casualty Co. v. Cormier Construction, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0278215 (February 14, 2003, Graham, J.) ( 34 Conn. L. Rptr. 88); Balogh v. Boehringer-Ingelheim Corp., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0276094 (March 7, 2003, Graham, J.); Cooksley v. New Britain, supra, 29 Conn. L. Rptr. 631; Nationwide Insurance Enterprises v. AG Development, LLC, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0362565 (July 23, 2001, Stevens, J.) ( 30 Conn. L. Rptr. 191); Bednaz v. Svindland, Superior Court, judicial district of New Haven, Docket No. CV 99 042935 (June 12, 2000, Alander, J.) ( 27 Conn. L. Rptr. 438). "Furthermore, it has been recognized that [s]ection 52-102b establishes a window of opportunity within which an apportionment complaint may be served, and if an apportionment complaint is not served within the applicable time period, the window shuts definitively . . . There is nothing in the statutory language or overall statutory scheme of [§]52-102b to establish that the legislature had a purpose here other than a clear, precise time bar." (Internal quotation marks omitted.) Pedro v. Miller, supra, Superior Court, Docket No. CV 03 0564838. In Cooksley v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 99 0498574 (April 2, 2001, Shapiro, J.) ( 29 Conn. L. Rptr. 631), the court held that the plain language of § 52-102b requires that the time limit be calculated from the return date specified in the plaintiff's original complaint. The court rejected a more liberal reading of the statute referencing § 52-102b(b), which would have allowed calculation of the time limit from the return date of the apportionment complaint.
McCarthy did not serve the apportionment complaint on Dow within 120 days from the return date of the original complaint. The court lacks personal jurisdiction over Dow. Accordingly, Dow's motion to dismiss is granted.
GALLAGHER, J.