Commissioner v. Lake Phipps Land Owners Corp.

Full title: COMMISSIONER OF ENVIRONMENTAL PROTECTION v. LAKE PHIPPS LAND OWNERS…

Court: Appellate Court of Connecticut

Date published: Jan 1, 1985

3 Conn. App. 100 (Conn. App. Ct. 1985)

485 A.2d 580

Opinion

(2223)

By statute ( 52-102a [a]), "[a] defendant in any civil action may move the court for permission . . . to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." The plaintiff commissioner of environmental protection sought an injunction against the defendant, L Co., requiring it to repair certain dams. L Co. filed a third party complaint against the city of West Haven alleging that it "is or may be liable" to the commissioner for all or part of the commissioner's claim against L Co. Because L Co. should have alleged that the city "is or may be liable" to it, rather than to the commissioner, for the commissioner's claims against it, the trial court did not err in dismissing the third party complaint.

Argued November 6, 1984

Decision released January 1, 1985

Action for an injunction requiring the defendant to comply with an order issued by the plaintiff, brought to the Superior Court in the judicial district of Hartford-New Britain, where the defendant filed a third party complaint; the court, Dupont, J., rendered judgment granting the third party defendant's motion to dismiss the third party complaint, from which the defendant appealed to this court. No error.

David M. Reilly, for the appellant (defendant).

Jeffrey M. Sachs, special assistant corporation counsel, with whom, on the brief, was Victor P. Fasano, special assistant corporation counsel, for the appellee (third party defendant).

SPALLONE, J.

This is an appeal by the third party plaintiff, Lake Phipps Land Owners Corporation (hereinafter corporation), from the trial court's judgment dismissing its third party complaint against the third party defendant, city of West Haven (hereinafter city).

The original action was filed by the plaintiff commissioner of environmental protection (hereinafter commissioner) against the corporation seeking a permanent injunction mandating that the corporation comply with an order of the commissioner requiring it to repair three dams it owns in the city of West Haven. The corporation then filed an impleader action against the city, alleging that the city is or may be liable to the commissioner because some construction projects by the city worsened the condition of the dams.

The city filed a motion to dismiss challenging the sufficiency of the third party complaint.¹ The trial court granted the motion to dismiss because the corporation failed to allege that the city was liable to the corporation for all or part of the commissioner's claim against the corporation, that the third party complaint did not set forth a cause of action premised on secondary liability and that the third party action is separate and distinct from the main action and is therefore inappropriate for impleader. The trial court, treating the motion to dismiss as a motion to strike, dismissed the third party complaint.²

1 The amended third party complaint is in three counts. Paragraph 7 of the first count provides that "[t]he City of West Haven is or may be liable to the plaintiff for all or part of the plaintiff's claim against the third party plaintiff. . . ." Paragraph 4 of the second count provides that "[t]he City of West Haven is or may be liable to the plaintiff for all or part of the plaintiff's claim against the third party plaintiff. . . ." Paragraph 5 of the third count provides that "[t]he City of West Haven is or may be liable to the plaintiff for all or part of the plaintiff's claim against the third party plaintiff. . . ."

2 A motion to dismiss is an improper vehicle to challenge the propriety of an impleader complaint. Practice Book 143. An attack upon the sufficiency of an impleader complaint should be made by a motion to strike. That motion is used to test the legal sufficiency of a complaint, counter-claim or cross-claim, or of any count thereof, to state a claim upon which relief can be granted. Practice Book 152. The trial court treated the motion to dismiss as a motion to strike, and we do the same.

The third party complaint Was correctly dismissed because, by its very language, it failed to meet the requirements of General Statutes 52-102a and Practice Book 117.³ Senior v. Hope, 156 Conn. 92, 97, 239 A.2d 486 (1968).

3 The language of Practice Book 117 is virtually identical to that of General Statutes 52-102a.

Connecticut General Statutes 52-102a (a) provides in pertinent part that "[a] defendant in any civil action may move the court for permission . . . to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." An impleading party has the burden of alleging facts sufficient to bring an action within the requirements of the statute. Senior v. Hope, supra, 98. As a fundamental and threshold requirement, a third party plaintiff must allege that the third party defendant is or may be liable to the third party plaintiff for all or part of the plaintiff's claim against him.

In this case, the amended third party complaint alleges that "the City of West Haven is or may be liable to the plaintiff for all or part of the plaintiff's claim against the third party plaintiff." This language Is clearly incorrect and fails to meet an essential allegation mandated by the statute.

The complaint should have alleged that the city of West Haven is or may be liable to the third party plaintiff corporation, not the plaintiff commissioner. The omission of an essential allegation to a statutory action sufficiently supports the trial court's dismissal of the third party complaint. Therefore, we need not discuss the court's other reasons for granting the dismissal.