Opinion
No. CV08 501 57 96 S
April 14, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The issue presented in this motion is the requirement of "asserting" a claim against an apportionment defendant under General Statutes § 52-102b, where the apportionment defendant has already filed an appearance.
Section 52-102b states in relevant part: "(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint." (Emphasis added.)
The point of contention between the parties in the present case is the meaning of asserting a claim, whether formal service is required, failure of which affects the jurisdiction of the court. Black's Law Dictionary (8th Ed. 2004) defines "assert" as "(1) to state positively; (2) to invoke or enforce (a legal right)." The apportionment defendant in the present case cites as her main authority to Tocco v. Wesleyan University, 112 Conn.App. 28, 961 A.2d 1009 (2009), which discusses the meaning of service to non-appearing parties under Practice Book §§ 10-12 and 10-13, for the purpose of asserting a claim under § 52-102b. The apportionment defendant in the present case, however, had filed an appearance on October 17, 2008, prior to the plaintiff's filing of the cross complaint on November 14, 2008, so this case is not directly on point as to the procedure.
During oral argument on March 30, 2009, the apportionment defendant conceded that full service with a marshal would not be required, but rather a form of limited service requiring the plaintiff to send the cross complaint to the apportionment defendant's counsel.
The court reasoned: "The plaintiff argues that her direct claim against the association, an apportionment defendant, need only be `asserted' in accordance with the language of § 52-102b(d), which could be accomplished through the mail as opposed to service as prescribed by Practice Book §§ 10-12(c) and 10-13. The plaintiff argues that Wesleyan's service of a writ of summons and apportionment complaint on the association was adequate and timely, and, therefore, the association became a party to the action. It is the plaintiff's claim that because the association already was a party to the action, the language of § 52-102b(d), which provides that a direct claim could be `asserted' directly by the plaintiff against the apportionment defendant, permitted her to assert the new claim against the association by merely mailing it a copy of the second amended complaint, which she had filed with the court. The association argues, however, that at the time the plaintiff mailed the second amended complaint, it was a nonappearing party, and, therefore, the plaintiff could not assert a new claim pursuant to § 52-102b(d) by mail but was required to effect service on the association in accordance with Practice Book §§ 10-12(c) and 10-13. We agree with the association." Tocco v. Wesleyan University, 112 Conn.App. 28, 30-31, 961 A.2d 1009 (2009).
Addressing § 52-102b, the court in Burke v. Barrett, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5002018 (March 26, 2008, Downey, J.) ( 45 Conn. L. Rptr. 247, 248), reasoned: "Subsection (a) is a provision only for a defendant to bring a non-party into the action to address a claim of the defendant for apportionment purposes, and service is required because that is how you get a non-party into the civil action. Section 52-102b(d) does not require the plaintiffs to thereafter serve the claim made under that statute upon a non-appearing apportionment defendant." "Once the apportionment defendant . . . [is] served by the defendants the Superior Court ha[s] personal jurisdiction over [the apportionment defendant]. Sections 10-12(c), 10-13 and 10-14(b) of the Practice Book apply to bringing a new party into the case, not to making claims against persons that are already parties . . ." (Emphasis in original.) Id., 248.
"[P]articularly where the third-party apportionment defendant is in the case for the limited purpose of apportioning damages with the existing defendants on negligence claims based on section 52-572h."
It is the general rule in Connecticut that "personal jurisdiction, once acquired, is not lost or divested by subsequent events or actions of the parties." Kelley v. Kelley, Superior Court, judicial district of New London, Docket No. CV 85 0500063 (June 21, 2004, Vasington, J.T.R.) ( 37 Conn. L. Rptr. 271, 271); see also Broadman v. Broadman, 135 Conn. 124, 132, 62 A.2d 521 (1948) (regarding as settled law that "if a court of a state has jurisdiction when an action is brought to it, a subsequent removal of a party from the state will not terminate that jurisdiction").
Practice Book Section 10-12(a), further, provides: "It is the responsibility of counsel or a pro se party filing the same to serve on each other party who has appeared one copy of every pleading subsequent to the original complaint, every written motion other than one in which an order is sought ex parte and every paper relating to discovery, request, demand, claim, notice or similar paper. When a party is represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the judicial authority." Further, Practice Book § 10-14(a) provides: "Proof of service pursuant to Section 10-12(a) . . . may be made by written acknowledgment of service by the party served, by a certificate of counsel for the party filing the pleading or paper . . . or by affidavit of the person making the service, but these methods of proof shall not be exclusive." "The clear purpose of this section is to ensure that all appearing counsel will receive copies of all court papers other than those in which an ex parte order is sought." (Internal quotation marks omitted.) Whitehead v. Planning Zoning Commission, 50 Conn.Sup. 453, 456, 937 A.2d 87 [ 44 Conn. L. Rptr. 182] (2007).
"The determination of whether the plaintiff's violations of the rules of practice rise to the level requiring dismissal is a discretionary determination for the trial court judge." Strachel v. Chart One, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 04 4001206 (September 5, 2006, Gallagher, J.); see Dauti v. Stop Shop Supermarket Co., 90 Conn.App. 626, 632-33, 879 A.2d 507, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005), cert. denied, 283 Conn. 912, 928 A.2d 536 (2007).
Accordingly, following the reasoning of Burke v. Barrett, supra, 45 Conn. L. Rptr. 248, even prior to an appearance, bringing a claim under § 52-102b does not require service of the cross complaint upon the apportionment defendant. Moreover, in the present case, the apportionment defendant was properly served with the apportionment complaint, giving the court personal jurisdiction over the apportionment defendant. Whether the plaintiff's failure to properly certify the filing of the cross complaint warrants dismissal, even though there has been no prejudice to the apportionment defendants as a result of the defective filing, is subject to the discretion of the court.
Morever, the Superior Court decisions cited by the apportionment defendant do not support the contention that service is required, and that the failure to send a copy of the pleading to the apportionment defendant's attorney affects the jurisdiction of the court. Specifically, Verner v. Lovallo, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 97 0161204 (October 13, 1998, D'Andrea, J.) ( 23 Conn. L. Rptr. 191, 191-92), addresses the plaintiff's filing of the amended complaint, adding claims against the apportionment defendant, subsequently to the defendant serving the apportionment complaint. The court held that although faxing the complaint to the attorney could constitute sufficient service, because this occurred prior to the date of appearance and the sixty days had already passed, it was insufficient. Further, in Perazelli v. Tilcon Connecticut, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 99 0154903 (November 6, 2000, Rogers, J.), the court held that "the failure to . . . file the claim within sixty days of the return date of the apportionment complaint under § 52-102b(d) bars the claim against the apportionment defendant." (Emphasis added.) Finally, Becker v. Cody, Superior Court, judicial district of Fairfield, Docket No. CV 97 0348815 (March 31, 1999, Nadeau, J.) ( 24 Conn. L. Rptr. 323, 324), merely enforces the sixty-day deadline, without specifically addressing the method of filing or service.
In the present case, the apportionment defendant had appeared and the cross complaint was filed with the court well within the sixty-day limitations period. Accordingly, the cases cited by the apportionment defendant fail to supply the court with a legal basis for the argument that failing to serve the apportionment defendant's attorney with the cross complaint is an oversight that affects the jurisdiction of the court.
Section 52-102b is clear on its face in not specifically requiring service on the apportionment defendant, once the apportionment complaint has been properly served and the apportionment defendant has filed an appearance. Whether the violation of the practice book, by failing to certify the filing of the cross complaint, warrants dismissal of the action, is subject to the discretion of the court. In this case the plaintiff testified at the failure to dictate the certification was office oversight. Finally, the apportionment defendant in the present case fails to cite to any law supporting her position.
It is the opinion of the Court that the unintended failure to certify notification this resulted in no prejudice to the apportionment defendant and does not warrant a dismissal. The motion to dismiss is denied.