Opinion
No. CV-03-0196219-S
June 5, 2006
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The third-party defendants, Howard Ignal and the law firm of Weinstein, Weiner, Ignal, Napolitano Shapiro, P.C. (collectively, "the law firm"), move to dismiss the complaint of the defendant/third-party plaintiff, Angela O. Carr ("Carr"), based on claims of lack of subject matter and personal jurisdiction. The third-party action arises out of an original claim brought by one Janice Anne Kosinski ("Kosinski") against Carr for breach of a warranty deed. The third-party complaint alleges that the law firm prepared the warranty deed at issue and, for that reason, is or may be liable to Carr for all or part of Kosinski's claim against her.
The material facts pertaining to the motion to dismiss relate to the procedural history surrounding the motion to implead the law firm, and are not in dispute. Counsel for Carr filed an objection to the motion to dismiss supported by affidavits wherein the procedural facts are averred. Both parties appended to their pleadings copies of relevant pleadings and court documents.
Carr filed a motion to implead the law firm on August 1, 2005. The motion appeared as a non-arguable matter on the short calendar held on August 15, 2005, and was marked by her counsel as a matter that was ready to be taken on the papers. The court (Tobin, J.) took the matter on the papers and, on August 18, 2005, granted the motion to implead the law firm. The court's signed order on that date indicates that Carr was required to serve the law firm on or before September 8, 2005 and to set a return date of September 20, 2005.
A notice was issued by the court on September 1, 2005 stating that the motion to implead was granted. Significantly, the court's signed order concerning the service and return dates did not accompany the court notice and was never received by Carr's counsel. Notwithstanding, a notice issued by the court on September 13, 2005 indicated that decision on the motion to implead was "pending." Consistent with the latter notice, counsel for Carr stated in his affidavit that he made several phone calls to the clerk's office subsequent to the motion appearing on the August short calendar inquiring about the status of the motion wherein he was told that the file was under consideration by the court.
In late December 2005, Carr's counsel avers that he received a phone call from an attorney for the original plaintiff, Kosinski, wherein the attorney informed counsel for Carr that she received a telephone call from the civil caseflow coordinator about the status of the motion to implead. Consequently, Carr's counsel called the caseflow coordinator and was informed that the court (Tobin, J.) granted the motion to implead in August but notice was never issued regarding the service and return dates set forth in the signed order of the court. The caseflow coordinator told Carr's counsel that he would discuss the matter with the presiding judge for civil actions. Counsel avers that he received a follow-up call from the caseflow coordinator indicating that the presiding judge for civil matters denied the objection to the motion to implead as "moot and ordered the trial continued to an indeterminate date so as to allow Carr to serve the third-party defendants [the law firm] the third-party summons and complaint." The presiding judge (Rogers, J.) issued a notice dated December 22, 2005 stating as follows:
"PLAINTIFF'S OBJECTION (#153) TO DEFENDANT'S MOTION TO IMPLEAD IS MOOT. THE MOTION TO IMPLEAD WAS GRANTED ON AUGUST 18, 2005 BY JUDGE RICHARD TOBIN."
Thereafter, Carr filed her third-party complaint on January 10, 2006. The marshal's return indicates that the complaint was served on the law firm on January 3, 2006 and filed with the court on January 10, 2006. Carr filed a motion for continuance on the same date that she filed her complaint, which motion, based on the aforementioned circumstances, was granted by the court and the trial date was continued to October 23, 2006. The present motion to dismiss was filed on February 6, 2006.
The law firm moves to dismiss the third-party complaint claiming that the court lacks subject matter jurisdiction over the action and personal jurisdiction over the law firm. The law firm's claims are grounded on that fact that the third-party complaint was not served or returned to court in accordance with the order of the court (Tobin, J.) on August 18, 2005. The law firm asserts that the court lacks subject matter jurisdiction because the third-party complaint was served after the September 8th return date set by Judge Tobin, and therefore was served "outside the permission granted by the court." The law firm asserts that the court lacks personal jurisdiction over it because the third-party complaint was not returned to court at least six days before the return date as required by General Statutes § 52-46a. It is not disputed that that court's order on the motion to implead was never mailed to the parties by the clerk's office.
A motion to implead is a motion created by statute. "A defendant in any civil action may move the court for permission as a third-party plaintiff 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 motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff of the party sought to be impleaded . . . The writ, summons and complaint so served shall be equivalent in all respects to an original writ, summons and complaint . . ." General Statutes § 52-102a.
Although a motion to implead is a creature of statute, there is no "statutory right to implead a third party; the statute commits the decision of such motions to the sound discretion of the trial courts." Cupina v. Bernklau, 17 Conn.App. 159, 164, 551 A.2d 37 (1988).
The claims made by the law firm in support of the motion to dismiss are devoid of any merit in light of the known and undisputed procedural posture of this case. The law firm has not cited to any case that the court finds support their arguments. The case of Butler v. LaPointe, Superior Court, judicial district of Litchfield, Docket No. 0054902 (May 7, 1992, Pickard, J.) ( 6 Conn. L. Rptr. 370) is distinguishable. In Butler, the court dismissed the third-party complaint for the reason that the defendant never received permission from the court to implead the third party. In the present action, the court exercised its discretion in accordance with the applicable statute in granting the motion to implead the law firm.
The material and indisputable facts are that the court granted the motion to implead; that the clerk's office never forwarded the order containing the service and return dates to counsel of record; the civil caseflow coordinator became aware of that omission a few months after the granting of the motion and brought it to the presiding judge's attention; the presiding judge issued an order confirming the fact that the motion had been granted and ultimately continued the trial date to accommodate service of the third-party complaint in light of the existing circumstances.
The court frankly does not understand the fact that the law firm premises its motion on a court order that it became aware was never mailed to the parties due to clerical error and was corrected by the presiding judge. "Under the common law rule, a distinction is drawn between `matters of substance' and `clerical errors'; the distinction being that mere clerical errors may be corrected at any time . . ." Blake v. Blake, 211 Conn. 485, 494, 560 A.2d 396 (1989). "It would be unfair to the defendants if the court were to penalize them for an error made by the clerk's office." Gray v. SA Restaurant Corp., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV-97-0161478 (January 23, 1998, D'Andrea, J.) ( 21 Conn. L. Rptr. 224) (court finds motion to dismiss timely filed).
In view of the foregoing, the defendant's motion to dismiss is denied.