Opinion
No. CV02 078878
December 5, 2003
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
On July 19, 2002, the plaintiffs, Jack and Nancy Ayalon, filed a complaint against Douglas Breakstone (Breakstone), an attorney, alleging legal malpractice, breach of contract and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiffs also brought the complaint against Marcus Wiener (Wiener), alleging breach of covenant of seizin, breach of covenant of warranty, negligent misrepresentation, fraudulent misrepresentation and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
In their complaint, the plaintiffs allege that in December 1999, they had entered into a contract of sale with Wiener for the purchase of real property (property) known as 76 Forty Acre Mountain Road, Danbury, Connecticut. The plaintiffs claim that in December 1999, they employed Breakstone to represent them in the purchase of the property. The plaintiffs allege that Breakstone had represented to them that he had adequately examined the title to the property and that Wiener owned the property in fee simple. On February 4, 2000, the plaintiffs purchased the property. The plaintiffs further allege that all of the property was not conveyed in the warranty deed and that a portion of the property encroached on an adjacent parcel of land
On December 5, 2002, Breakstone filed an apportionment complaint against Attorney Richard McGannon (McGannon) pursuant to General Statutes §§ 52-102b and 52-572h. Breakstone alleges that McGannon was hired to conduct a title search on the property, and in fact, performed one on the property. Breakstone denies that he was negligent but alleges that if the plaintiffs sustained any damages or losses, then these damages or losses were caused in whole or in part by the negligence of the apportionment defendant McGannon, who failed to conduct a proper title search. On February 18, 2003, the plaintiffs filed an amended complaint, including a claim against the apportionment defendant McGannon. No objection was filed to the plaintiffs' amended complaint.
Now before the court is a motion for summary judgment filed by McGannon on June 3, 2003. In his supporting memorandum of law, McGannon argues that the use of an apportionment complaint in a legal malpractice action is restricted to negligence actions where a plaintiff seeks recovery for personal injuries, wrongful death or property damage. McGannon contends that, because in the underlying action, the plaintiffs seek recovery for purely economic damages and losses as a result of legal malpractice, the apportionment complaint is improper and legally insufficient. On June 19, 2003, Breakstone filed a memorandum of law in opposition to the motion for summary judgment, asserting that the plaintiffs allege "damage to property" under General Statutes § 52-572h.
On November 3, 2003, the court heard oral argument on McGannon's motion for summary judgment, at which time the court requested supplemental memoranda from both parties. In his supplemental memorandum of law, McGannon argues that if a plaintiff "pleads over" against an apportionment defendant, as was done here, then that party can occupy the role of defendant and apportionment defendant at the same time. In opposition, the apportionment plaintiff Breakstone contends that when the plaintiffs "pleaded over" against the apportionment defendant McGannon, McGannon lost his status as an apportionment defendant and became a full defendant.
DISCUSSION
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Webster Back v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003); Practice Book § 17-49. Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Webster Bank v. Oakley, supra, 265 Conn. 545. "[A]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Schilberg Integrated Metals v. Continental Casualty, 263 Conn. 245, 252, 819 A.2d 773 (2003).
As an initial matter, it is noted that a motion to strike, rather than a motion for summary judgment, is typically the proper method to challenge the legal sufficiency of a complaint. See Practice Book § 10-39(a); see also Galgano v. Metropolitan Property Casualty Ins. Co., 64 Conn. App. 25, 27-28 n. 3, 779 A.2d 229 (2001). Nonetheless, our Supreme Court has stated that a motion for summary judgment is a proper way to test the legal sufficiency of a complaint. See Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 409, 279 A.2d 540 (1991). In the present case, the apportionment defendant McGannon filed an answer to the apportionment plaintiff's complaint on December 9, 2002, and a revised answer on February 11, 2003. This court, under Boucher, may address the motion for summary judgment as a motion to strike, contesting the legal sufficiency of the apportionment complaint.
The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
Joinder of parties for apportionment purposes pursuant to § 52-102b is "the exclusive means by which a defendant may add a person who is or may be liable pursuant to [General Statutes § 52-572h] . . ." General Statutes § 52-102b (f) (emphasis added). A defendant may "serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to [General Statutes § 52-572h] for a proportionate share of the plaintiffs' damages . . ." (Footnote added.) General Statutes § 52-102b (a). "Ordinarily, the word party has a technical legal meaning, referring to those by or against whom a legal suit is brought . . . the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons." (Internal quotation marks omitted.) Lieberman v. Reliable Refuse Co., 212 Conn. 661, 669, 563 A.2d 1013 (1989).
General Statutes § 52-572h (c) provides: "In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section."
In the present case, McGannon became an apportionment defendant when the apportionment plaintiff Breakstone filed an apportionment complaint against him on December 5, 2002. The apportionment statute provides that "[t]he person upon whom the apportionment complaint is served . . . called the apportionment defendant, shall be a party for all purposes, including all purposes under [General Statutes § 52-572h]." General Statutes § 52-102b (a). Moreover, "[t]he 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." General Statutes § 52-102 (b). Accordingly, under the express language of the apportionment statute, it is clear that an apportionment defendant's status is in all respects identical to that of an original defendant.
The majority of Superior Court decisions hold that General Statutes § 52-102b precludes a cross claim for apportionment against someone who is already a party to the action. See Lackard v. Vandecar, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 01 0806605S (January 7, 2002, Rittenband, J.T.R.); Rubbak v. Thompson, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 00 0180009 (April 6, 2001, Lewis, J.) ( 29 Conn.L.Rptr. 316); Apicelli v. Indian Nations, Superior Court, Judicial district of New London at Norwich, Docket No. 119305 (December 11, 2000, Martin, J.); Cullen v. Czaikowski, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 98 0417339 (April 12, 1999, Jones, J.) ( 24 Conn.L.Rptr. 357); Algea v. Barnett, Superior Court, judicial district of Bridgeport, Docket No. CV 334396 (July 17, 1997, Skolnick, J.) ( 20 Conn.L.Rptr. 100). To the contrary, there are Superior Court cases, holding that General Statutes § 52-102b does not prevent a claim of apportionment against a party. See Torres v. Begic, Superior Court, judicial district of New Haven, Docket No. 423742 (June 13, 2000, Levin J.) ( 27 Conn.L.Rptr. 403); Farmer v. Christianson, Superior Court of Tolland at Rockville, Docket No. CV 00 71954 (May 4, 2000, Sullivan, J.) ( 27 Conn.L.Rptr. 196).
This court is persuaded by the majority view that a claim for apportionment of liability may not be filed against someone who is already a party to the action because the explicit language of General Statutes § 52-102b limits apportionment to "a person not a party to the action." General Statutes § 52-102b (a). In this case, McGannon is a party to this action by virtue of the amended complaint filed by the plaintiffs against McGannon on February 18, 2003. According to the plain language of Statutes § 52-102b and pertinent case law, this court finds that a cross claim for apportionment against someone who is already a party to the action is impermissible. Because General Statutes § 52-102b is used to add people who are not parties to an action and because McGannon is already a party to this action, the apportionment complaint brought by Breakstone against McGannon is not permissible.
This conclusion is further buttressed by a review of the legislative history of General Statutes § 52-102b. "Seeking a clarification on whether the term party as used in the statute refers to someone who is a party to the lawsuit . . . Representative Lawlor, one of the proponents of the bill replied: Yes. In fact, it would mean anyone who is actually a party to the lawsuit." (Citation omitted; internal quotation marks omitted.) Marconi Construction Co. v. D'Addeo's, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0551848 (January 28, 1998, Wagner, J.T.R.).
In Gerarde v. Anastasiou, Superior Court, Judicial District of New London at New London, Docket No. 546471 (June 30, 1999, Mihalakos, J.) ( 24 Conn.L.Rptr. 692), because the apportionment defendant was a party to the action "for all purposes," the cross claim for apportionment was impermissible under the apportionment statute and Practice Book § 10-11. The court held that, "the express language of 52-102b precludes a crossclaim for apportionment against someone who is already a party to the action." Id.
Practice Book § 10-11(c) provides: "A third-party defendant may proceed under this section against any person not a party to the action who is or may be liable to such defendant for all or any part of the third-party plaintiff's claim against him or her."
General Statutes § 52-572h (c) provides that each party against whom recovery is permitted shall be liable only for that party's proportionate share of the recoverable damages, and because McGannon is a party, his percentage of negligence, if any, will be considered by the jury. See General Statutes § 52-572h (c); see also Algea v. Barnett, supra, Superior Court, Docket No. 334396; Treimann v. Duncan, Superior Court, Judicial district of Hartford/New Britain at Hartford, Docket No. CV 97 0573401S (July 21, 1998, Mulcahy, J.) (stating that "General Statutes 52-572h allows [a] defendant to allege the negligence of other parties to the action — either original or impleaded parties for the purpose of apportioning liability in negligence actions").
Apportionment does not arise automatically, but must be based on evidence at trial. See Baxter v. Cardiology Associates of New Haven, P.C., 46 Conn. App. 377, 381-82, 699 A.2d 271, cert denied, 243 Conn. 933, 702 A.2d 640 (1997). In Baxter, our appellate court reviewed the issue that arose when a defendant, namely the hospital defendant in a medical malpractice case, settled and was released prior to trial. See id., 379. After the close of the plaintiff's evidence, the remaining party defendants argued that they had no obligation to raise the issue of the hospital's liability for apportionment purposes and did not bear any burden of proof with regard to the hospital's apportionment liability. See id., 380. "The defendants [took] the position that the question of apportionment and liability of a settled or released party [arose] automatically by virtue of the statute." Id., 380. The trial court disagreed and denied their request to submit to the jury the issue of the hospital's negligence. See id., 379. The appellate court affirmed the trial court's decision, holding that "[a]s with any issue, the trial court must not submit the issue of the settled person's negligence to the jury unless there is evidence to support it." Id., 382. "The same result would occur if no evidence were presented to support a complaint, counterclaim or cross claim. A claim devoid of evidence to support it will not be submitted to the trier of fact." Gallagher v. Square D Company, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV 01 0171019S (August 27, 2002, McWeeny, J.) ( 33 Conn.L.Rptr. 67). Accordingly, the notice of a defendant's intention to have apportionment questions submitted to the jury must come from the evidence presented by that defendant at trial.
For all of the foregoing reasons, the motion for summary judgment as to the apportionment complaint is granted.
This court does not address McGannon's claim that the apportionment complaint is not permitted under General Statutes § 52-572h.
CREMINS, JUDGE.