Opinion
No. CV 05 5000129 S
October 10, 2006
CORRECTED MEMORANDUM OF DECISION
The apportionment defendant, Kevin Griswold, moves to dismiss a complaint filed directly against him by the plaintiff, Daniel Luckingham, under General Statutes § 52-102b(d). This motion is the aftermath of a confluence of outright mistakes and confusion emanating from multiple sources. The court will endeavor, with some trepidation, to avoid adding to the procedural morass.
The pertinent facts are undisputed. On October 25, 2005, the plaintiff commenced this action to recover damages arising from a motor vehicle accident against the original defendants, Eric Campbell and Joanne Fournier. On February 15, 2006, these defendants timely served an apportionment complaint against the movant under § 52-102b(a). At that juncture, difficulties began to occur.
Subsection 52-102b(d) provides a window of opportunity of sixty days after the return date of the apportionment complaint for a plaintiff to "assert any claim against the apportionment defendant" notwithstanding an otherwise applicable statute of limitations. The time limits of § 52-102b are mandatory. Lostritto v. Community Action Agency of New Haven, 269 Conn. 10, 20 (2004); and implicate personal jurisdiction. Id., 33.
However, § 52-102b(d) fails to prescribe the method by which a plaintiff "asserts" a claim against an apportionment defendant. This subsection does not, for example, use either the word "serve" or "file" with respect to initiating such a claim.
The parties agree that it is unnecessary to utilize mesne process to start a § 52-102b(d) claim. Subsection 52-102b(a) states that once a defendant serves an apportionment complaint upon an apportionment defendant, that apportionment defendant "shall be a party for all purposes." They concur that the correct method of service is, therefore, that set forth in Practice Book §§ 10-12 and 10-13, which apply to ordinary pleadings.
By these rules of practice, a plaintiff wishing to take advantage of § 52-102b(d) must serve a copy of the new complaint on the pro se apportionment defendant or counsel "who has appeared," Practice Book § 10-12. Service "may be by delivering a copy or by mailing it to the last known address of the attorney or party." Practice Book § 10-13. A problem can arise where, as happened in this case, the plaintiff attempts to assert a claim against an apportionment defendant within the sixty-day window but before an appearance is filed by the apportionment defendant or counsel. Under this scenario, a nonappearing, apportionment defendant may never receive any notice that the plaintiff has "asserted" a claim for monetary damages against that party under § 52-102b(d).
One might assume, however, that once an apportionment defendant appears and examines the court file, it will be apparent that the plaintiff has asserted such a claim because Practice Book § 4-3 requires that all pleadings "shall be filed with and kept by the clerk of the court." In the present case, that opportunity to discover the new complaint was absent because of the following events.
On March 1, 2006, before expiration of the sixty-day period from the March 7, 2006, return date of the apportionment complaint, the plaintiff tried to file with the court clerk an amended complaint containing the allegations against the apportionment defendant. Plaintiff's counsel failed to sign this amended complaint. Practice Book § 4-2 mandates that "[e]very pleading and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name."
Based on this omission, the clerk's office rejected the filing and sought to return it to counsel for correction. Unfortunately, the clerk's office mailed the document to the wrong counsel, viz. counsel for the original defendants. Failing to recognize this error, that attorney's office compounded the mistake by inserting the misdirected documents into their own office file without notifying anyone else that the plaintiff's pleading had been rejected by the clerk's office.
About four weeks later, on March 28, 2006, counsel for the apportionment defendant filed an appearance on behalf of "apportionment defendant — Kevin Griswold only."
To recapitulate, as of March 28, 2006, the apportionment defendant and his counsel never received notice that the plaintiff had attempted to assert a claim of direct liability against him under § 52-102b(d) because, at the time the plaintiff filed the pleading, the apportionment defendant had yet to appear and because the court clerk's file lacked such a pleading which had been returned for want of a signature by plaintiff's counsel. Plaintiff's counsel, in turn, was unaware that the clerk's office had refused to accept the filing because the rejected paperwork was misdirected to the attorney's office of the original defendant.
The parties proceeded to litigate the case while in the dark as to these errors until counsel for the apportionment defendant expressed, as an aside, surprise to the original defendants' attorney that the plaintiff had never brought a claim against the apportionment defendant under § 52-102b(d). This comment prompted the defendants' attorney to reexamine its file, and the buried, unsigned, misdirected, rejected, amended complaint was discovered. All counsel then learned of the fractured state of the pleadings.
On June 21, 2006, well past sixty days after the return date of the apportionment complaint, the plaintiff filed a signed, amended complaint directed at the apportionment defendant. Counsel for the apportionment defendant then filed a new appearance on August 29, 2006, along with the motion to dismiss which is the subject of this memorandum.
There is ample blame to go around in this case. The legislature could have been clearer as to how a plaintiff "asserts" a claim against a nonappearing, apportionment defendant. Indeed, procedural due process may be infringed if one can be sued for money damages, as opposed to being cited merely as an apportionment defendant, without reasonable notice of that claim. Webster Bank v. Zak, 71 Conn.App. 550, 561 (2002).
Plaintiff's counsel was obligated by the rules of practice to sign the pleadings filed against the movant.
It is doubtful that the clerk's office has the power, absent express statutory or Practice Book authority, to refuse unsigned pleadings. There are Practice Book sections which supply such authority as to other defects, e.g. § 4-1(c). Rehabilitative statutes, such as General Statutes §§ 52-123 and 52-128, demonstrate that errors as to form may be correctable, and no rejection by the clerk's office is contemplated. Of course, even if the clerk's office had the power to refuse the filing, it had the responsibility to return the rejected pleading to the correct party.
The court holds, that by filing the substituted complaint on March 1, 2006, the plaintiff asserted a claim against the apportionment defendant despite the lack of signature. It is true that, unless service of process comports with statutory provisions and the rules of practice, the court acquires no personal jurisdiction over the apportionment defendant, Carpenter v. Law Offices of Dressler and Associates, 85 Conn.App. 655, 659 (2004), cert. denied, 272 Conn. 809 (2004); but objections to personal jurisdiction are waivable and must be timely raised. Id., 661.
Although the mistakes by the clerk's office may have eliminated the chance for the apportionment defendant to assail the unsigned complaint, those errors also deprived the plaintiff of the opportunity to correct its own omission in a timely fashion. In Andrews v. Hammond, 1 Conn.Sup. 21 (1935), the trial court overruled a plea in abatement where plaintiff's counsel failed to include his name on the copy of the writ served upon the defendant as required by the rules of practice. That court based its ruling on what is now § 52-123 and found that that omission was a circumstantial error which did not undermine the ability to have "the person and the cause . . . rightly understood." Id.
To these reasons, the motion to dismiss is denied.