Opinion
No. DBD CV05 5000081 S
File Date: December 29, 2006.
MEMORANDUM OF DECISION RE MOTION TO DISMISS #129.00
Black Boucher, LLC, (Black Boucher), the apportionment defendant, has filed a motion to dismiss (#129.00) the apportionment complaint of Sun Up Enterprises, Inc. (Sun Up) on the ground that there is no personal jurisdiction over the apportionment defendant. Black Boucher has also filed a motion for continuance of the trial date. In order to decide the motion to dismiss, the court must determine: (1) whether the apportionment complaint of Sun Up, which was filed over 120-days past the return date of the original complaint, but within 120-days of the complaint that made the apportionment plaintiff (Sun Up) a party to the action, is untimely under General Statutes § 52-102b; and (2) whether the apportionment defendant`s motion for continuance constitutes a waiver of any challenge to personal jurisdiction.
FACTS AND PROCEDURAL BACKGROUND
On May 31, 2005, the plaintiff, Lori Popp, filed a complaint against R F Danbury, LLC, alleging that she sustained injuries as a direct and proximate cause of the defendant`s negligence. The plaintiff alleges that on October 28, 2004, she had been shopping at 14 Candlewood Lake Road (Candlewood Lake Plaza) in Brookfield, Connecticut. Candlewood Lake Plaza includes retail stores and related common and parking areas, but at the time of the plaintiff`s visit, the parking area was in the process of being re-surfaced. At approximately 7:30 p.m., as the plaintiff was returning to her car, her shoe struck an uneven surface in the parking area and she fell sustaining serious and permanent injuries.
On October 17, 2005, the defendant R F Danbury, LLC filed an apportionment complaint against Orlando Annulli Sons, Inc. (Anulli Sons), alleging that if the plaintiff sustained the injuries and damages as alleged in her complaint that they were proximately caused by Anulli Sons. On December 15, 2005, the plaintiff filed an amended complaint, adding a second count against Anulli Sons. On January 17, 2006, Anulli Sons sought the court`s permission to file a third-party complaint against Sun Up. The court (Schuman, J.) granted Anulli Sons` motion on February 17, 2006. Subsequently, on March 7, 2006, Anulli Sons, filed a third-party complaint against Sun Up, alleging that Sun Up had an obligation, pursuant to its subcontract agreement, to indemnify and hold harmless Anulli Sons against all claims, damages and losses resulting from the performance of its work. On May 17, 2006, the plaintiff filed a second amended complaint, adding a third count against Sun Up.
Thereafter on July 27, 2006, Sun Up filed an apportionment complaint against Black Boucher. On August 10, 2006, Black Boucher filed an appearance and a motion to dismiss the apportionment complaint, as well as a memorandum of law in support of its motion and on August 21, 2006, Black Boucher, moved for a continuance of the November 7, 2006, trial date. Sun Up filed a memorandum of law in opposition to the motion to dismiss on August 23, 2006 as well as a supplemental memorandum of law the next day.
DISCUSSION
Black Boucher has moved to dismiss Sun Up`s apportionment complaint on the ground that it was not served within 120 days of the return date of the plaintiff`s original complaint, as provided in General Statutes § 52-102b. Sun Up argues that the relevant date for computing the 120-day period is the return date of the complaint that brought the apportionment plaintiff into the matter as it was made a party by the apportionment complaint of another defendant, Anulli Sons. Sun Up filed the present apportionment complaint against Black Boucher within 120 days of the return date of Anulli Sons` apportionment complaint against Sun Up.
Section 52-102b provides in relevant part: "(a) A defendant in any civil action to which section 52-572h applies may serve a . . . 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 . . . apportionment complaint . . . shall be served within one hundred twenty days of the return date specified in the plaintiff`s original complaint." The Supreme Court, in Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 14, 848 A.2d 418 (2004), recently resolved a split of authority in the Superior Court, holding that the 120-day limitation is mandatory and implicates the court`s personal jurisdiction over the defendant. The court in Lostritto did not consider the precise issue in the present case, however, of what exactly is meant by the term "original complaint."
General Statutes § 52-572h, applicable to all actions for negligence, abolished common-law joint-and-several liability in favor of comparative liability, and set forth the methods of calculating and apportioning damages. Section 52-102b was later implemented to provide uniformity in how additional defendants were brought in, since § 52-572h did not provide the procedures by which to do so, nor did it provide guidance as to the appropriate limitations periods to apply. See Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 23-25, 848 A.2d 418 (2004).
The majority of Superior Court decisions have interpreted "original complaint" to mean the one first filed by the plaintiff that initially commenced the underlying action, and not subsequent amended or third-party complaints bringing in new defendants, making the 120-day period run from the original return date. Many have based their decisions on the reasoning in Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn., 10, that the legislature carefully crafted the language of the statute, eschewing references to any existing period of limitations to avoid the problem of defendants waiting several years to bring in apportionment parties they had always known existed. Id., 24-25. For example, the court in Lauretti v. Dube, Superior Court, judicial district of New Britain, Docket No. CV 04 4002203 (October 11, 2005, Shapiro, J.) ( 40 Conn. L. Rptr. 225), reflected that, if the relevant time period within which each defendant must serve an apportionment complaint were to run from the return date of the apportionment complaint that brought them in, the court would be subjected to a potentially endless stream of new parties, each piggybacking the 120-day limitations period off the last. Id., 226. Moreover, many courts have noted that the plain language in the statute, "plaintiff`s original complaint," is unambiguous, and clearly refers to the first complaint commencing the action. See, e.g., 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]. Therefore, Sun Up`s complaint, having been filed well beyond the 120-day period provided by § 52-102b, is untimely, and this court lacks personal jurisdiction over Black Boucher.
It is truly a vast majority; see, e.g., Lauretti v. Dube, Superior Court, judicial district of New Britain, Docket No. CV 04 4002203 (October 11, 2005, Shapiro, J.) ( 40 Conn. L. Rptr. 225); Norwich Housing Authority v. Malmfeldt Design Group, Inc., Superior Court, judicial district of New London, Docket No. CV 04 128938 (May 10, 2005, Hurley, J.) ( 39 Conn. L. Rptr. 308); Balogh v. Boehringer-Ingelheim Corp., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0276094 (March 7, 2003, Graham, J.); 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); Nationwide Ins. Enterprise v. A G Development, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 99 0362565 (July 23, 2001, Stevens, J.) ( 30 Conn. L. Rptr. 191).
Research revealed only a single decision that has held otherwise; see Stahl v. Hadelman, Superior Court, judicial district of New Haven, Docket No. CV 98 0411954 (September 24, 1999, Devlin, J.) [ 25 Conn. L. Rptr. 435].
In the alternative, Sun Up argues that Black Boucher, having filed an appearance and motion for continuance of trial, has waived any possible challenge to personal jurisdiction by submitting to the authority of the court. It argues that "[o]rdinarily, a motion for a continuance is considered a step in the regular prosecution of the cause, and therefore a general appearance." (Internal quotation marks omitted.) Goldfeld v. Wood Park Estates, Inc., 29 Conn.Sup. 237, 241, 281 A.2d 326 (1971). Nevertheless, the establishment in 1978 of the motion to dismiss as the exclusive method of challenging jurisdiction implicitly abolished special appearances. Pitchell v. Hartford, 247 Conn. 422, 432-33 n. 14, 722 A.2d 797(1999). Currently, "the filing of an appearance on behalf of a party, in and of itself, does not waive that party`s personal jurisdiction claims, [and any defendant] wishing to contest the court`s jurisdiction . . . may do so even after having entered a general appearance." (Internal quotation marks omitted.) CT Page 23578 Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002). See also Travaglino v. Cianelli, Superior Court, judicial district of New Haven, Docket No. CV 96 0382337 (Mar. 22, 1996, Booth, J.) ( 16 Conn. L. Rptr. 366) (defendant`s appearance and request for a continuance did not amount to waiver, and the motion to dismiss was granted). It remains true that "a party may waive objection to a trial court`s erroneous exercise of personal jurisdiction if that party appears in the case, actively prosecutes the action or contests the issues . . ." (Citations omitted.) New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 237 Conn. 378, 386, 677 A.2d 1350 (1996). Nevertheless, the mere filing of a motion for continuance, especially one that specifically attempts to preserve an opposition to jurisdiction already raised in a timely motion to dismiss, can hardly be considered "active prosecution of the action." Accordingly, Black Boucher`s motion for continuance does not affect a waiver of its right to challenge personal jurisdiction.
Despite Sun Up`s contention that "[i]n the Motion for Continuance, Black Boucher, LLC did not state that it was preserving its jurisdictional challenge," Black Boucher in fact noted therein that one of the reasons for the requested continuance was to allow the court to rule on the motion to dismiss, potentially relieving the defendant from the need to conduct discovery.
In that Black Boucher`s motion for continuance does not waive its right to challenge personal jurisdiction, and given that the court has determined that it lacks personal jurisdiction over Black Boucher, the motion to dismiss is granted.