Opinion
No. CV02 082 12 10
November 26, 2003
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The plaintiff, Brian Rouleau, filed this complaint against the defendant, Walter D. Sullivan Company, seeking damages arising from a slip and fall on February 15, 2001 in a Yale University building allegedly caused by the defendant's negligence in permitting a water discharge while testing a pipe. The complaint filed on November 1, 2002 contained the return date of November 26, 2002. On March 24, 2003, the defendant served an apportionment complaint dated March 21, 2001 on the apportionment defendants, Yale University, Linbeck Construction Corporation, and MacKenzie Service Corporation. However, the apportionment complaint did not contain a return date. On March 31, 2003, Yale University entered an appearance. On April 2, 2003, the defendant served an amended apportionment complaint, which included a return date of May 6, 2003, and Linbeck Construction Company entered an appearance on May 15, 2003. On August 27, 2003, Yale University filed this motion to dismiss based on the claimed failure of the apportionment plaintiff to serve its complaint as required by General Statutes § 52-102b(2). Similar motions to dismiss have been filed by other apportionment defendants.
I.
General Statutes § 102b provides in pertinent part:
Sec. 52-102b. Addition of person as defendant for apportionment of liability purposes. (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 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 one hundred twenty days of the return date specified in the plaintiff's original complaint.
Section 52-72 of the General Statutes allows "a proper amendment to civil process which has been made returnable to the wrong day or is for any other reason defective." Section 52-72 states that if the court finds that "the parties had notice of the pendency of the action and their rights have not been prejudiced or affected by reason of the defect, any attachment made by the original service and the rights under lis pendens shall be preserved and continued from the date of service of the original process as though the original process had been in proper form."
In this case, none of the apportionment defendants, in their respective motions to dismiss, alleged that they were prejudiced or delayed in any way by the defendant/apportionment plaintiff's amendment of the complaint to add a return date. One apportionment defendant, Yale University, filed an appearance even before the second service. The original service of the apportionment complaint, even without a return date, put the apportionment defendants on notice of the pendency of the petition for apportionment. Because the apportionment defendants were not delayed or prejudiced it is reasonable to treat the actual date of service, even though the complaint lacked a return date, to be the date of service under General Statutes § 52-102b and therefore within the 120-day time limit specified in the statute.
II.
The motions to dismiss if granted would cut off the right of the defendant to seek apportionment of the claim against it.
Our Supreme Court has emphasized the importance of hearing a case of its merits rather than dismissing it based on procedural errors.
In Hartford National Bank Co. v. Tucker, 178 Conn. 472, 478-79 (1980), the Supreme Court stated:
The purpose of this statute [§ 52-72] to provide for amendment of otherwise incurable defects that go to the court's jurisdiction . . . Those defects which are merely voidable may, in the trial court's discretion, be cured by amendment, and do not require new service and return date, so long as the defendant was not prejudiced.
In Coppola v. Coppola, 243 Conn. 657, 664-65, the Supreme Court stated:
[O]ur legislature enacted numerous procedural reforms applicable to ordinary civil actions that are designed to ameliorate the consequences of many deviations from the prescribed norm, which result largely from the fallibility of the legal profession, in order generally to provide errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw.
The legislature, in enacting § 52-72, expressed an intent to reject the draconian result of dismissal of the plaintiff's cause of action because of a defect involving the return date . . . Furthermore, such an interpretation is consistent with our expressed policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice. Rules are a means to justice, and not an end in themselves . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure.
There is a division of opinion among Superior Court cases as to whether lack of a return date is fatal, or can be amended according to Connecticut General Statutes § 52-72.
This court finds merit in those decisions which conclude that a lack of return date is not fatal. Schuld v. Carey, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 00-0070619 (July 17, 2000, Shay, J.) ( 27 Conn. L. Rptr. 511); Regan v. State Dept. of Social Services, Superior Court, judicial district of New Haven, Docket No. CV 95-0379879 (July 31, 1996, Corradino, J.) ( 17 Conn. L. Rptr. 253).
III.
There is also a split in Superior Court Authority as to whether the 120-day time limit in which to file the Apportionment Complaint, set forth in General Statutes § 52-102b, is directory or mandatory. A number of these decisions have held the 120-day time limit to be mandatory. Maenza v. Letis, Superior Court, judicial district of New Haven, Docket No. CV 01-0447124 (December 18, 2001, Zoarski, J.); Carrano v. MJM Studios, Inc., Superior Court, judicial district of New Haven, Docket No. CV 99-0423267 (March 12, 2002, Thompson J.); Bednarz v. Svindland, Superior Court, judicial district of New Haven, Docket No. CV 99-0125935 (June 12, 2000, Alander, J.) ( 27 Conn. L. Rptr. 438); Ortiz v. Bridgeport Hospital, Superior Court, judicial district of New London, Docket No. CV 98-0547104 (February 24, 2000, Corradino, J.) ( 26 Conn. L. Rptr. 419); Everett v. Widlitz, Superior Court, judicial district of New London, Docket No. 537562 (May 1, 1997, Booth, J.) ( 19 Conn. L. Rptr. 416).
However, there are several well reasoned decisions which have held the 120-day time limit to be directory. Vaillant v. City of Norwalk, Superior Court, judicial district of Norwalk-Stamford at Stamford, Docket NO. CV 96-0150977 (August 14, 2000, Karazin, J.) ( 27 Conn. L. Rptr. 668); Ketchale v. Unger, Superior Court, judicial district of New Haven, Docket No. 396218 (July 14, 1998, Levin, J.) ( 22 Conn. L. Rptr. 418).
Our Supreme Court heard arguments on October 25, 2003, (SC 16808) on an appeal from a Superior Court decision holding the 120-day time limit to be mandatory. Lostritto v. Community Action Agency of New Haven, Superior Court, judicial district of New Haven, 32 Conn. L. Rptr. 76, 2002 Ct. Sup. 5415 (April 22, 2002, Robinson-Thomas, J.), but the pending motion in this case must be decided before the decision in that appeal is likely to be published.
Because the 120-day time limit in General Statutes § 52-102b is considered to be directory, and because the prior service of the complaint, even without a return date provided actual notice so that the apportionment defendants were not unduly prejudiced, the motion to dismiss is denied.
WAGNER, JUDGE TRIAL REFEREE.