Opinion
No. CV 09 6004995 S
November 4, 2010
MEMORANDUM OF DECISION
The following facts are alleged in the six-count amended complaint filed on December 22, 2009 and directed against Walgreen Eastern Co., Inc., doing business as Walgreens Pharmacy (Walgreens). On January 6, 2008, at approximately 1:30 p.m., the plaintiffs, Margaret Lopes, Jasmine Lopes and Jonathan White, all residents of New Haven, stopped at the Walgreens Pharmacy located at 415 Foxon Boulevard in New Haven (the property). Margaret Lopes is the mother of Jasmine Lopes and Jonathan White. At all relevant times, the Walgreens Pharmacy was "designed, built, owned, operated, managed, and/or maintained" by Walgreens. At all relevant times, the property functioned as a pharmacy/convenience store and represented itself to the public as such.
The request for leave to amend the complaint along with the proposed amended complaint was filed on December 22, 2009. Practice Book § 10-60 provides in relevant part: "(a) Except as provided in Section 10-66, a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner:
"(1) By order of judicial authority; or
"(2) By written consent of the adverse party; or
"(3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10-12 through 10-17, and with proof of service endorsed thereon. If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party." In the present case, no objection was filed within fifteen days; therefore, the proposed amended complaint filed on December 22, 2009 is the operative complaint. In fact, the defendant filed an answer to the amended complaint on June 15, 2010.
At all relevant times, Margaret Lopes, Jasmine Lopes and Jonathan White were on the property in order to take advantage of the services that Walgreens offered to the public. At all relevant times, Marie Canestri, a resident of East Haven, was the operator of a 1992 Mercury sedan, which was owned by Louis Canestri. Marie Canestri was operating the Mercury with Louis Canestri's authority and permission. Marie Canestri was parked in a parking spot that was designated for use by Walgreens Pharmacy patrons.
At the aforementioned time and place, Margaret Lopes parked her motor vehicle in a parking space that was also designated for use by patrons of Walgreens Pharmacy and located approximately two parking spots to the east of Louis Canestri's motor vehicle. At the aforementioned time and place, Margaret Lopes entered the store while Jasmine Lopes and Jonathan White remained in the motor vehicle. When Margaret Lopes finished her business within the Walgreens Pharmacy, she exited and attempted to use an elevated cement sidewalk that ran in front of the parking spaces along the northern end of the store in order to return to her motor vehicle.
Before Margaret Lopes was able to safely return to her motor vehicle, she witnessed Marie Canestri reverse the Mercury out of her parking space and collide with a Ford sedan that was being operated by Arlene Lowery Brown. Immediately after this collision, Marie Canestri switched gears and accelerated the Mercury forward, causing it to drive up onto the sidewalk where it pinned Margaret Lopes between the front bumper of the Mercury and a cement garbage can on the sidewalk. Margaret Lopes sustained injuries and damages as a result of the collision.
In count one of the amended complaint, Margaret Lopes alleges negligence on the part of the defendant, Walgreens "[i]n that it failed to provide any protected walkway for pedestrians to access and exit the store without walking directly into the path of oncoming vehicles . . ." Margaret Lopes further alleges that Walgreens was negligent "[i]n that it did not provide any pedestrian protection, such as wheel stops, and/or bollards, etc. in order to prevent motor vehicles from jumping the curb onto the sidewalk."
In count two of the amended complaint, Margaret Lopes alleges recklessness on the part of Walgreens in that it, inter alia, "opened the Walgreens store at 415 Foxon Boulevard in New Haven . . . to the public, before installing pedestrian protection devices and/or structures, knowing that pedestrians entering and/or exiting Walgreens were at risk of serious injury caused by motor vehicles . . ."
In count three of the amended complaint, Jasmine Lopes, who was a minor at all relevant times and brought the action through Margaret Lopes, alleges negligent infliction of emotional distress on the part of Walgreens in that she, inter alia, "had contemporaneous sensory perception of the events which caused the serious injuries to her mother in that she witnessed the event from within her mother's car, parked two parking spaces from the scene of the collision." In count four of the amended complaint, Jonathan White also alleges negligent infliction of emotional distress on the part of Walgreens. In count five of the amended complaint, Luis Lopes, the husband of Margaret Lopes, alleges a loss of consortium with regard to negligence, and in count six of the amended complaint, Luis Lopes alleges a loss of consortium with regard to recklessness.
The original summons listed Jasmine Lopes as "JASMINE LOPES, ppa Margaret Lopes." "`PPA' is an acronym for `per proxima amici,' meaning `by or through the next friend,' and is employed when an adult brings suit on behalf of a minor, who was unable to maintain an action on his own behalf at common law." Tomasco v. Milford Board of Education, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 07 4008593 n. 1 (August 31, 2007, Robinson, J.).
Luis Lopes was not listed as a plaintiff in the original action and no motion was filed to cite him in pursuant to the rules of practice. No objection was raised to his inclusion or to the amended complaint in general and Walgreens responded to Luis Lopes's allegations in its answer filed on June 15, 2010. In their respective objections to the plaintiffs' motion to strike the apportioning plaintiff's complaint or in the alternative amend the apportionment plaintiff's complaint to allow the plaintiffs to plead over, neither Walgreens nor the Canestris' list Luis Lopes as one of the plaintiffs who filed the motion to strike. For purposes of this memorandum, when referring to the plaintiffs who brought the amended complaint, Luis Lopes will be included in that group unless otherwise indicated.
The original complaint was served on Walgreens on September 15, 2009. In a summons and three-count complaint dated December 18, 2009, Walgreens named Marie Canestri and Louis Canestri as apportionment defendants. Count one sounds in negligence against Marie Canestri, count two sounds in recklessness against Marie Canestri and count three sounds in negligent entrustment against Louis Canestri. In both counts one and two, Walgreens alleges, inter alia, that Marie Canestri operated a vehicle with "defective or inadequate brakes" while she had a cast on her broken foot. In count three, Walgreens alleges, inter alia, that "[a]t all times relevant herein, Louis Canestri knew or had reason to know that Marie Canestri would not operate the vehicle in a competent and safe fashion, and that a likelihood of injury to others existed as a result."
The apportionment complaint was served on the apportionment defendants on December 21, 2009, and mailed to the original plaintiffs' attorney on December 18, 2009. The return date was listed as January 26, 2009, and process was returned to the court on December 30, 2009. As stated earlier in this memorandum, the request to amend along with the proposed amended complaint was filed on December 22, 2009.
The apportionment statute, General Statutes § 52-102b provides in relevant part: "(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 a 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 plaintiffs' original complaint. The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint. The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under Section 52-572h."
To distinguish between the plaintiffs in the amended complaint, which was filed on December 22, 2009, and Walgreens, the defendant and apportionment plaintiff, the plaintiffs who filed the amended complaint will be referred to as the original plaintiffs unless otherwise indicated.
The Canestris filed an appearance on January 25, 2010. On July 13, 2010, the original plaintiffs filed a motion to strike the apportioning plaintiff's complaint or in the alternative amend the apportionment plaintiff's complaint to allow the plaintiffs to plead over. The motion was accompanied by a memorandum of law in support thereof. The motion was dated June 21, 2010. The ground for the motion to strike is "insufficient service."
On June 15, 2010, Walgreens filed an answer to the amended complaint. On July 2, 2010, the Canestris filed a limited objection to the original plaintiffs' motion to strike and request to plead over accompanied by a memorandum in support of their objection. On July 19, 2010, Walgreens filed an objection to the original plaintiffs' motion to strike the apportionment complaint and a memorandum in support of the objection. Also, on July 19, 2010, Walgreens filed a motion for leave to amend summons accompanied by the proposed amended summons to amend the return date to January 26, 2010. On July 26, 2010, the original plaintiffs filed both a reply to Walgreens' objection to the motion to strike the apportionment complaint and motion to amend summons and a reply to the motion to amend summons. In the reply to the motion to amend summons, the original plaintiffs stated that they did not object to Walgreens' motion to amend the summons provided that the original plaintiffs were permitted to plead over against the apportionment defendants.
It appears that the Canestris filed their objection before the original plaintiffs' motion made it to the court's file.
While the amended complaint, the apportionment complaint, and the appearance filed by the Canestris spells Mrs. Canestri's first name as "Marie," the limited objection refers to her as "Maria" Canestri.
While the original plaintiffs state that they would not object to Walgreens' motion to amend its summons, it is only on the condition that they be permitted to plead over against the apportionment defendants. Furthermore, it does not appear that the original plaintiffs withdrew their original motion to strike.
In their memorandum of law in support of their motion, the original plaintiffs argue that Walgreens' apportionment complaint was defective because the writ of summons accompanying the apportionment complaint bore a return date that had already passed at the time it was served. The original plaintiffs therefore assert that although they were aware of the apportionment action, the original plaintiffs were unable to bring a cause of action against the apportionment defendants within the sixty-day limit pursuant to General Statutes § 52-102b(d). The original plaintiffs further maintain that allowing Walgreens to amend its summons will prejudice the original plaintiffs' right to bring their own action against the apportionment defendants. The original plaintiffs contend that they are seeking "an equitable remedy from the court in that it strike the apportionment complaint, due to its insufficient service, or, in the alternative, allow Walgreens to amend its defective service, and also allow the plaintiffs to plead over and assert a cause of action in negligence against the apportionment defendant[s]."
The original plaintiffs, quoting General Statutes § 52-72, state that a defendant may be granted permission by the court to amend defective process under § 52-72 if the court, "upon motion and hearing, 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, and all rights lis pendens shall be preserved and continued from the date of the service of the original process as though the original process had been in proper form." According to the original plaintiffs, Walgreens served a defective apportionment complaint when it served a writ of summons with a return date that had already passed upon the apportionment defendants. The original plaintiffs argue that because of this invalid return date, the sixty-day time limitation for the original plaintiffs to assert their own action against the apportionment defendants, pursuant to § 52-102b(d), could not begin to run. The original plaintiffs assert that as the invalid return date made it impossible for them to assert claims against the apportionment defendants within sixty days of the return date, the original plaintiffs were prejudiced by the defect although they had notice of the pendency of the apportionment action.
The original plaintiffs maintain that Connecticut courts have "recognized that a defective summons with an invalid return date renders an apportionment complaint invalid." The original plaintiffs contend that allowing Walgreens to amend its return date would again render it impossible for the original plaintiffs to assert their own claims against the apportionment defendants within the sixty-day limit.
The apportionment defendants contend in their memorandum of law with regard to the return date on the apportionment complaint: "[T]he return date on the [a]pportionment [c]omplaint was January 26, 2009 not January 26, 2010. This is clearly an error given the fact that the [a]pportionment [c]omplaint was dated and served in December of 2009. Therefore, [Walgreens] clearly meant to set the return date on January 26, 2010." (Emphasis in original.)
The apportionment defendants assert that Walgreens can amend the return date on its apportionment complaint pursuant to § 52-72 as long as the amended return date complies with the parameters set forth in Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998), which includes compliance with General Statutes § 52-48(b), which provides: "All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held." According to the apportionment defendants, as the date of process of the apportionment complaint, which is the date on Walgreens' writ of summons, is December 18, 2009, as per §§ 52-72(a) and 52-48(b), the return date of Walgreens' apportionment complaint can be amended up to February 18, 2010, which is two months after the date of process. The apportionment defendants argue that considering that the apportionment complaint "was returned to court on December 30, 2009, at least six days before any permissibly amended return date, the [a]pportionment [c]omplaint would be timely if the return date was amended."
The apportionment defendants assert that any claim by the original plaintiffs against the apportionment defendants pursuant to § 52-102b(d) is untimely even if the court were to allow Walgreens to amend its return date to February 18, 2010, as the original plaintiffs would have had only until April 18, 2010 to plead over against the apportionment defendants, which the original plaintiffs had not done.
The apportionment defendants maintain that the sixty-day limit that is set forth in § 52-102b(d) is mandatory and substantive and therefore, compliance can only be excused if accompanied by an equitable reason, which includes waiver or consent by the parties. The apportionment defendants contend that in the present case, there is no equitable reason to excuse the original plaintiffs' compliance with the sixty-day requirement of § 52-102b(d).
The apportionment defendants state that they have not waived any defenses they may have with regard to personal jurisdiction as to any claims that the original plaintiffs may bring against them pursuant to § 52-102b(d) as the original plaintiffs have yet to bring said claims. The apportionment defendants indicate that to the extent the original plaintiffs' motion is to be taken as an indication that the original plaintiffs intend to assert such a claim, the apportionment defendants do not intend to consent to any such claim.
The apportionment defendants further assert that although waiver and consent are not the only equitable reasons for a court to permit a plaintiff to assert a claim against an apportionment defendant past the § 52-102b(d) sixty-day time limit and that other equitable considerations could exist that might cause a court to excuse a plaintiff's noncompliance with the § 52-102b(d) sixty-day limit, in the present case, such equitable considerations are not present.
The apportionment defendants contend that the original plaintiffs were aware of the apportionment defendants' involvement in the accident but made a tactical choice to not bring a claim against the apportionment defendants in the original action. The apportionment defendants also maintain that although the apportionment complaint was mailed to the original plaintiffs' counsel on December 18, 2009, the original plaintiffs waited 186 days to file their motion to strike and/or to plead over. According to the apportionment defendants, the legal basis for the original plaintiffs to bring their own claim against the apportionment defendants arose when Walgreens filed its apportionment complaint and that the original plaintiffs cannot credibly assert that they were misled by the apportionment complaint's return date.
In addition, the apportionment defendants argue that if the court were to adopt the original plaintiffs' argument, a defective return date would entitle the original plaintiffs to "an indefinite period of time in which to assert a claim against the apportionment defendants." The apportionment defendants assert that they would be prejudiced if the original plaintiffs are allowed to bring a claim against the apportionment defendants.
In its memorandum of law, Walgreens argues that even assuming that the original plaintiffs have standing to challenge service of process upon the apportionment defendants as the service was not upon the original plaintiffs, the original plaintiffs have waived any challenge to the service because they did not file a motion to dismiss within thirty days of the apportionment defendants' January 25, 2010 appearance. According to Walgreens, the original plaintiffs' challenge to service of process due to the erroneous return date implicates personal jurisdiction, not subject matter jurisdiction. It is Walgreens' position that the original plaintiffs have waived the right to challenge personal jurisdiction as they did not timely file a motion to dismiss and filed a motion to strike instead of a motion to dismiss, which according to Practice Book § 10-7, precludes them from filing a motion to dismiss as a motion to strike is subsequent to a motion to dismiss in Practice Book § 10-6.
Walgreens further argues that the erroneous return date on the summons should be amended pursuant to § 52-72, which applies to original and apportionment complaints. Walgreens asserts, as the apportionment defendants do, that the original plaintiffs were on notice of the pendency of the action and the nature of the claims. Walgreens also maintains that amending the return date will not delay the trial date. According to Walgreens, the original plaintiffs cannot in good faith assert that they were misled by the erroneous return date given the surrounding circumstances such as the summons being prepared towards the end of 2009 as well as the fact that the apportionment complaint itself bore the correct return date of January 26, 2010. In addition, Walgreens contends that the original plaintiffs' argument that the scrivener's error on the summons rendered them unable to assert their own claim against the apportionment defendants is disingenuous because the original plaintiffs could have filed a motion to request a revision or contacted Walgreens in order that the summons be amended. Walgreens argues that alternatively, the original plaintiffs could have timely filed a motion to dismiss the apportionment complaint on the ground of defective process. Walgreens further asserts that given the length of time that the original plaintiffs waited to address the error, it is not credible that they were prevented from pleading over as a result of the error.
While the original plaintiffs filed a motion to strike, the proper motion to address a defective return date is a motion to dismiss. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . ." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . ." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).
"The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § [10-31].
With regard to the question of whether an incorrect return date implicates personal or subject matter jurisdiction, the court in Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 625, n. 8, 642 A.2d 1186 (1994) stated: "Because of [the disposition of allowing an amendment of the return date as per § 52-72 after the return date has passed], we need not consider the broader question of whether, in the absence of General Statutes § 52-72, the use of a defective return date would deprive the court of subject matter jurisdiction. In New Haven Loan Co. v. Affinito, 122 Conn. 151, 154, 188 A. 75 (1936), this court held that the use of an improper return date did not affect the jurisdiction of a trial court hearing an appeal from an inferior tribunal. In addition, in Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 551, 610 A.2d 1260 (1992), we held that an improperly executed writ or citation affects the personal jurisdiction, rather than the subject matter jurisdiction, of the trial court and therefore may be waived as a ground for dismissal."
With regard to entertaining an amendment of a defective return date while a motion to dismiss is pending, the Superior Court has stated: "Where appropriate, the trial court is empowered to allow a plaintiff's amendment of a defective return date in lieu of granting a defendant's motion to dismiss. See, e.g., Crissey v. The Stop Shop Supermarket Co., Superior Court, judicial district of Danbury, Docket No. 324998 ([May 8, 1997, Stodolink, J.]) (19 [Conn.L.Rtpr.] 406) (declining to dismiss action based on defective return date, and allowing, amendment under § 52-72); Empire Mortgage L.P. v. Sinotte, Superior Court, judicial district of Waterbury, Docket No. 130113 ([September 27, 1996, Kulawis, J.]) (allowing a proper amendment to civil process made returnable to wrong day); Federal Deposit Ins. Corp. v. Jamlane, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 505857 ([May 19, 1992, Hammer, J.]) [ 6 Conn. L. Rptr. 421] (granting plaintiff's request to amend return date in lieu of granting motion to dismiss)." Kozek v. Rotella, Superior Court, judicial district of New London, Docket No. 547326 (February 5, 1999, Mihalakos, J.) [ 24 Conn. L. Rptr. 70]. Therefore, the court can entertain Walgreens' motion for leave to amend summons at this time.
Walgreens relies on § 52-72 in support of its motion for leave to amend its summons to correct the erroneous return date. General Statutes § 52-72 provides: "(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement.
"The return date historically was the day that the defendant actually was required to appear in court to answer the summons. W. Moller W. Horton, 1 Connecticut Practice Series: Practice Book Annotated (3d Ed. 1989) § 49, p. 215, comment. `From an early time in Connecticut, however, the return of process has been required prior to "the day of sitting of the court.'" . . . E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997) § 16 p. 31; see General Statutes (1821 Rev.), tit. 2, § 10 (`[o]fficers serving writs shall return them, or cause them to be returned, to the clerks of the courts to which they are made returnable, at least forty-eight hours prior to the day of the session of the court').
"Today, the return date determines how to compute the time for service of process; General Statutes § 52-46; the time for filing the writ with the court; General Statutes § 52-46a; the time for the defendant to file an appearance with the court; General Statutes § 52-84; and the time for the defendant to respond to the complaint. Practice Book § 114 [now § 10-8]. W. Moller W. Horton, 1 Connecticut Practice Series: Practice Book Annotated, supra, p. 215." (Emphasis in original.) Coppola v. Coppola, CT Page 21522 243 Conn. 657, 661 n. 8, 707 A.2d 281 (1981).
"(b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form.
"(c) If the court, on motion and after hearing, 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 any 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. A certified copy of the finding shall be attached to and served with the amended process."
"`Centuries ago the common law courts of England . . . insisted upon rigid adherence to the prescribed forms of action, resulting in the defeat of many suits for technical faults rather than upon their merits. Some of that ancient jurisprudence migrated to this country . . . and has affected the development of procedural law in this state . . . [H]owever, our 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. The `principles of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results.'" (Citation omitted.) Coppola v. Coppola, supra, 243 Conn. 657, 664-65, 707 A.2d 281 (1981).
With regard to § 52-72, the Supreme Court in Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 623 stated: "Section 52-72 was originally adopted in 1917. Public Acts 1917, c. 164. Although there is no legislative history available, it appears that the statute was enacted in response to decisions of this court holding that an improper return date was a jurisdictional defect that could not be corrected. See, e.g., Hoxie v. Payne, 41 Conn. 539 (1874). Indeed, this court has stated that the purpose of § 52-72 `is to provide for amendment of otherwise incurable defects that go to the court's jurisdiction.' Hartford National Bank Trust Co. v. Tucker, 178 Conn. 472, 478-79, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d 319 (1980). The apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date." In Concept Associates, the court determined that § 52-72 applied to amendments of the return date that were sought after the correct return date had already passed. Concept Associates, Ltd. v. Board of Tax Review, supra, 623-25.
Although § 52-72 does allow for the amendment of an incorrect return date, the court in Coppola stated: "A return date may be amended but it still must comply with the time limitations set forth in § 52-48 (b). Section 52-48 (b) requires that `[a]ll process shall be made returnable not later than two months after the date of the process . . .' Section 52-48 (b), therefore, with its two month limit, circumscribes the extent to which a return date may be amended." Coppola v. Coppola, supra, 243 Conn. 666-67.
With regard to the applicability of § 52-72 to apportionment complaints, the Superior Court stated: "[A]n apportionment complaint and summons are `civil process,' albeit in the context of an existing civil action. There is no rationale that would support treating a request to amend a return date on an apportionment complaint any different from a request to amend a return date on an original complaint." Taylor v. Gristmill Commons Condominium Assoc., Inc., Superior Court, judicial district of New Britain, Docket No. CV 08 5009111 (May 5, 2009, Pittman, J.) ( 47 Conn. L. Rptr. 744). Therefore, the court, in the present case, can determine if Walgreens can avail itself of § 52-72 with regard to amending its defective return date on the writ of summons for the apportionment complaint.
The court will now turn to the dates at issue in the present case with regard to the apportionment complaint. "The `date of the process,' of course, refers to the date of the writ of the summons or attachment which must be accompanied by the complaint. General Statutes §§ 52-45a and 52-45b." Haylett v. Commission on Human Rights Opportunities, 207 Conn. 547, 554-55, 541 A.2d 494 (1988). In the present case, the date of the writ of the summons of the apportionment complaint is dated December 18, 2009, and Walgreens' proposed amended return date is January 26, 2010, which is in compliance with § 52-48 as it was on a Tuesday within two months of December 18, 2009. According to the return of service, service was made upon the apportionment defendants on December 21, 2009. Process was returned to the court on December 30, 2009.
General Statutes § 52-48(a) provides in relevant part: "(a) Process in civil actions . . . brought to the Superior Court may be made returnable on any Tuesday in any month."
As stated earlier in this memorandum, Walgreens mailed the writ of summons and apportionment complaint to the original plaintiffs' attorney on December 18, 2009.
In Coppola v. Coppola, supra, 243 Conn. 666 n. 11, the court stated: "Amended process must still comply with [General Statutes] § 52-46a and be returned at least six days before the return date." The Coppola court also stated: "[W]e note that the requirement of § 52-46a to return process in civil actions to the clerk of the Superior Court at least six days before the return date is mandatory and failure to comply with its requirements renders the proceeding voidable, rather than void, and subject to abatement. Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 433, 559 A.2d 1110 (1989). `[O]nce an action has been brought by service of process on the defendant, a trial court may thereafter dismiss the action for failure to return the service of process within the mandated time period.' Rana v. Ritacco, 236 Conn. 330, 339, 672 A.2d 946 (1996)." Coppola v. Coppola, supra, 661-62. In the present case, process was returned to the court on December 30, 2009, which is more than six days before the proposed amended return date of January 26, 2010. Therefore, Walgreens' proposed amended return date is in compliance with § 52-46a.
General Statutes § 52-46a provides: "Process in civil actions returnable to the Supreme Court shall be returned to its clerk at least twenty days before the return day and, if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day."
In 1979, the Superior Court in Beattie v. Metropolitan Life Ins. Co., Superior Court, judicial district of New Haven, Docket No. 115841 4 L (May 7, 1979, Berdon, J.) (5 Conn. L. Trib. No. 42, p. 11) encountered a situation similar to the one in the present case where the plaintiff's date of process was December 1, 1977, the defendant was served on December 1, 1977, the return date was January 24, 1977, and process was returned to the court on December 7, 1977. The defendant moved to erase for a lack of jurisdiction as the return date had long passed. The plaintiff filed an amendment to the writ and summons on January 24, 1978, changing the return date from January 24, 1977 to January 24, 1978.
"[W]hen a motion to dismiss does not seek to introduce facts outside of the record it is equivalent to our former motion to erase and admits all well pleaded facts, the complaint being construed most favorably to the plaintiff." (Internal quotation marks omitted.) Sagamore Group, Inc. v. Commissioner of Transportation, 29 Conn.App. 292, 298, 614 A.2d 1255 (1992).
The court in Beattie stated: "Obviously, the return date was a typographical error; it should have been `1978' instead of `1977.' These errors occur quite frequently during the latter part and the beginning of the calendar year. Id.
The court in Beattie continued: "[T]he defendant . . . was not misled. The matter clearly falls within the purview and spirit of § 52-123 of the General Statutes which provides that `[n]o writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightfully understood and intended by the court.' The roots of this statute date back to 1672. Section 634 of the General Statutes of 1702 (side note); Andrews v. Thayer, 40 Conn. 156, 158 (1873).
"Certainly any reasonable person would realize the date in the summons was a typographical error and that the year was meant to be 1978 and not 1977. It appears that the error by the commissioner of the superior court who signed the writ and summons was a circumstantial error and one which did not prejudice the defendant. See, New Haven Loan Co. v. Affinito, 122 Conn. 151 (1936); Schroder v. Tomlinson, 70 Conn. 348, 351 (1898). Therefore, the clear command of § 52-123 is that the present action not be erased." Beattie v. Metropolitan Life Ins. Co., supra, 5 Conn. L. Trib. No. 42, p. 11. The court denied the motion to erase. Beattie v. Metropolitan Life Ins. Co., supra, 5 Conn. L. Trib. No. 42, p. 11.
Furthermore, both the apportionment defendants and the original plaintiffs received actual notice of the apportionment complaint within the statutory time frame and did not suffer prejudice due to Walgreens' use of the wrong year on the return date, especially given that the correct return date was typed on the top of the caption on the actual apportionment complaint and the writ of summons was prepared towards the end of 2009, a time when these types of errors are apt to occur. See Id.
While the amended complaint that listed Luis Lopes as a plaintiff for the first time was not filed with the court until December 22, 2009, or sent to Walgreens' counsel until that date, which was after the writ of summons and accompanying apportionment complaint were mailed to the original plaintiffs' counsel, Luis Lopes has not asserted an insufficiency of service of process on the ground of not having been served with the writ of summons and the apportionment complaint, and the original plaintiffs concede that they had notice of the pendency of the apportionment action. Luis Lopes, Margaret Lopes, Jasmine Lopes and Jonathan White all share the same counsel.
Given that Walgreens' proposed amended return date is in compliance with §§ 52-46a and 52-48(b) and that both the apportionment defendants and the original plaintiffs received timely notice of the action and suffered no prejudice due to the incorrect return date, and pursuant to § 52-72, Walgreens' motion for leave to amend summons is granted. In addition, the original plaintiffs' motion to strike is denied.
While the original plaintiffs cite to Vissicchio v. Greenspan, Superior Court, judicial district of New Haven, Docket No. CV 03 0480706 (May 3, 2004, Arnold, J.), in support of the proposition that the incorrect return date rendered it impossible for the original plaintiffs to timely plead over, as will be discussed later in this memorandum, the facts of Vissichio are distinguishable from the facts of the present case, and therefore, the original plaintiffs were not prejudiced by Walgreens' erroneous return date.
The court must next determine whether the original plaintiffs should be permitted to assert their own claims against the apportionment defendants. General Statutes § 52-102b(d) provides: "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."
The statute of limitations of the original plaintiffs' causes of action is governed by General Statutes § 52-584, which provides in relevant part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed." Therefore, as the date of the alleged accident occurred on January 6, 2008, the statute of limitations would have run on the original plaintiffs' causes of action on January 6, 2010. Nevertheless, pursuant to § 52-102b(d), the original plaintiffs had sixty days from the return date of the apportionment complaint to bring their own claims against the apportionment defendants. In the present case, the proposed amended return date is January 26, 2010, and if Walgreens is given leave by the court to amend its return date, it is too late for the original plaintiffs to assert their own claims against the apportionment defendants.
As stated earlier in this memorandum, it is the original plaintiffs' position that because of the defective return date on the apportionment complaint, the sixty days allotted for the original plaintiffs to assert their own claims against the apportionment defendants, pursuant to § 52-102b(d), could not begin to run.
This court must examine the legislative intent of § 52-102b to determine if the sixty-day limitation of General Statutes § 52-102b is mandatory or directory. In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 17-38, 848 A.2d 418 (2004), the court examined the legislative intent of General Statutes § 52-102b(a).
The court in Lostritto stated: "`The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.' Public Acts 2003, No. 03-154, § 1 . . . Although we are persuaded after considering extratextual evidence that the 120 day time limitation is mandatory, we cannot conclude that the statute is clear and unambiguous on its face for two reasons. First, § 52-102b does not state explicitly that the time limitation is mandatory. Second, the inclusion of the phrase `if the apportionment complaint is served within the time period' in § 52-102b(b) could be understood to mean that it is possible that the apportionment complaint could be served outside the 120 day period and nevertheless be viable. We therefore are not limited to the text of the statute in determining its meaning.
"The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words." (Internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 18-19.
"The use of the word `shall' in § 52-102b(a) suggests that the legislature intended the 120 day time limitation to be a mandatory circumscription of the right to bring an apportionment claim. As we have often stated, [d]efinitive words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature . . . By contrast, [t]he word "may," unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion . . . Therefore, when the legislature opts to use the words `shall' and `may' in the same statute, they must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings . . . It is especially relevant that the legislature chose to use the word `shall' when referring to service of an apportionment complaint in contrast to the more permissive, `may,' which is used with respect to the right to bring an apportionment claim. This distinction, which we assume to be deliberate, suggests that the legislature intended service of an apportionment complaint within the prescribed time period to be mandatory.
"Our determination that § 52-102b(a) is mandatory is further informed by the text of subsection (f) of the statute, which strongly suggests that compliance with the 120 day provision is mandatory. That subsection provides that `[t]his section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to Section 52-572h for a proportionate share of the plaintiff's damages as a party to the action.' . . . General Statutes § 52-102b(f). The term `exclusive' is defined as `[a]ppertaining to the subject alone, not including, admitting, or pertaining to any others. Sole. Shutting out . . .' Black's Law Dictionary (6th Ed. 1990). Indeed, we have stated that § 52-572h, which establishes the right to apportion liability, does not entitle a defendant to seek to apportion liability in instances in which the procedures outlined in § 52-102b are not followed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven Inc., supra, 269 Conn. 20-21.
The Lostritto court went on to examine the evolution of § 52-102b through its legislative history and determined that the legislature intended to make the 120-day period in § 52-102b to be compulsory in nature. Lostritto v. Community Action Agency of New Haven Inc., supra, 269 Conn. 21-22. The Lostritto court further stated: "A statute of limitations is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action . . . [W]here a statute gives a right of action which did not exist at common law, [however] and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation . . . The courts of Connecticut have repeatedly held that, under such circumstances, the time limitation is a substantive and jurisdictional prerequisite . . .
"In order to determine whether the 120 day time limitation is substantive or procedural, therefore, we must first ascertain whether § 52-102b created a right that did not exist at commonlaw." (Citations omitted; internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 22-23. The Lostritto court then examined the legislative history of § 52-102b; Lostritto v. Community Action Agency of New Haven, Inc., supra, 23-26; and found that § 52-102b conferred "rights that did not exist at common law." Lostritto v. Community Action Agency of New Haven, Inc., supra, 26.
The Lostritto court further stated: "Having concluded that § 52-102b created rights that did not exist at common law, we further conclude that the statute's 120 day time limitation is a substantive limitation on the right to apportionment. As we already have stated, § 52-102b was designed to create an effective means of accomplishing apportionment with reasonable certainty. This was not possible prior to § 52-102b, which delineated the proper timing and method of service of an apportionment complaint. Although § 52-102b contains some procedural aspects, its substantive purpose and effect cannot be minimized. Section 52-102b gives tangible force to the right to apportionment created in § 52-572h. Conversely, failure to comply with its requirements prevents a defendant from exercising the right to apportion liability. Accordingly, on the basis of the mandatory language employed by the legislature and our conclusion that § 52-102b(a) is substantive, we further conclude that the 120 day time limitation contained therein is mandatory." Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 26.
Although Lostritto did not specifically address § 52-102b(d), which is it at issue in the present case, the Superior Court, on more than one occasion, has. In Demers v. Demers, Superior Court, judicial district of Waterbury, Docket No. CV 01 0166183 (June 8, 2004, Matasavage, J.) ( 37 Conn. L. Rptr. 230), the court said: "This court finds no logical reason to hold that the time limitation of § 52-102b(a) is mandatory, but that the time limitation of § 52-102b(d) is directory.
"For the same reasons relied upon by the Lostritto court in finding the time requirement of [§ ]52-102b(a) is mandatory, this court finds the time requirement of § 52-102b(d) to be mandatory. To interpret the sixty-day time requirement of subsection (d) to be directory would be in direct contradiction of the purpose of § 52-102b." The Superior Court has also found the § 52-102b(d) time limitation to be mandatory in Kowalczyk v. New Milford Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 04 4000806 (September 11, 2006, Prescott, J.) ( 42 Conn. L. Rptr. 98, 99-101), and Serrano v. Haag, Superior Court, judicial district of New Britain, Docket No. CV 04 4000658 (June 27, 2005, Burke, J.) [ 39 Conn. L. Rptr. 594]. Therefore, § 52-102b(d) must be treated as mandatory, not directory.
In Pedro v. Miller, 281 Conn. 112, 118-21, 914 A.2d 524 (2007), the court examined if there were circumstances that would excuse mandatory compliance with § 52-102b(a). In Pedro, the plaintiff suffered injuries in a motor vehicle accident on December 22, 2001. Pedro v. Miller, supra, 115. The plaintiff's complaint, sounding in negligence, contained a return date of February 18, 2003. Id. After the plaintiff filed her complaint, she began receiving treatment for her injuries with a physician. Id. On June 29, 2004, the plaintiff filed an amended complaint alleging that she sustained a cerebrospinal fluid leak during the course of her treatment for her other injuries. Id. The plaintiff filed a second amended complaint on October 6, 2004. Id. The defendants, pursuant to §§ 52-102b and 52-572h, served an apportionment complaint on the plaintiff's physician on October 22, 2004, and filed the apportionment complaint on November 16, 2004. Id. The trial court granted the physician's motion to dismiss the apportionment complaint because it was served more than 120 days after the original complaint's return date and because there was a lack of evidence of waiver or consent and an appeal followed. Id.
The court in Pedro stated: "Mandatory compliance with the 120 day limit, however, is not without exception. Mandatory time limitations . . . must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties." (Emphasis in original; internal quotation marks omitted.) Id., 118. The Pedro court noted that in the original complaint, the plaintiff only alleged injuries sustained during the accident itself, and that it was not until her first amended complaint that she alleged she sustained injuries during the treatment that she underwent. Id., 119. According to the Pedro court, until the plaintiff alleged injuries sustained during her treatment, the defendants had no basis to file an apportionment complaint against the treating physician, and therefore, it was impossible for the defendants to serve the apportionment complaint upon the physician within the § 52-102b(a) 120-day limit. Id.
The Pedro court rejected the notion that waiver and consent were the only equitable considerations to excuse compliance with § 52-102b(a). Pedro v. Miller, supra, 281 Conn. 120. The court stated: "The precise language we used in Lostritto is inconsistent with such a narrow interpretation. We stated that the 120 day limit `must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties.' . . . Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 35-36. The word `including' indicates that the enumerated reasons do not comprise an exhaustive list, but rather that they are merely examples. Those two reasons serve particularly well as illustrative examples of equitable reasons for tolling the statute of limitations in § 52-102b(a) because they have always conferred personal jurisdiction upon a court despite defects in service of process. See United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985) (`[u]nlike subject matter jurisdiction . . . personal jurisdiction may be created through consent or waiver'). They are, therefore, the two paradigmatic and classic exceptions to a lack of personal jurisdiction due to a defect in service of process. To infer, based on the fact that Lostritto lists only these two classic, illustrative exceptions, that these are the only two equitable reasons that would excuse compliance with the time limit in § 52-102b(a) both misconstrues the nonexclusive language that we employed in citing to those two examples, and ignores the fact that these two reasons are textbook illustrations of equitable reasons for tolling a statute of limitations that implicates personal jurisdiction." (Emphasis in original.) Pedro v. Miller, supra, 120.
"[Section] 52-102b was designed to create an effective means of accomplishing apportionment with reasonable certainty . . . Allowing for exceptions to the 120 day limit for equitable reasons is consistent with that goal. The concept of `reasonable' certainty embodies the concept that the ideal of predictability cannot be so rigidly adhered to that the apportionment system must tolerate inequities that are easily avoided by allowing exceptions where equity demands them. Put another way, the phrase `reasonable certainty' implies that in certain circumstances, certainty must be balanced against other goals." (Citation omitted; emphasis in original; internal quotation marks omitted.) Pedro v. Miller, supra, 281 Conn. 121.
In the instant case, the apportionment defendants do not consent to allowing the original plaintiffs to assert their own claim against the apportionment defendants. Even if the court adopts the principles of Pedro with regard to compliance with § 52-102b(d), that the equitable circumstances that were present in Pedro are not present in the present case. In the instant case, Walgreens mailed a copy of the apportionment summons and complaint to the original plaintiffs' counsel on December 18, 2009. The apportionment defendants filed their appearance on January 25, 2010. The original plaintiffs did not move to strike or amend until July 13, 2010, although the motion was dated June 21, 2010. Nevertheless, even if the court uses the June 21, 2010 date as the filing date, that date is over six months after the apportionment summons and complaint were mailed to the original plaintiff's counsel and almost five months after the apportionment defendants appeared in this case and the proposed amended return date of January 26, 2010. In the present case, unlike in Pedro, the original plaintiffs were aware of the apportionment defendants' involvement in the accident at the time the original action was brought, but a tactical decision was made to not name them as defendants in either the initial complaint or the amended complaint. The original plaintiffs cannot credibly maintain that the confusion surrounding the erroneous return date on the writ of summons for the apportionment complaint misled the original plaintiffs.
Even if the return date was amended to February 16, 2010, which is the latest possible date that would be in compliance with § 52-48, the original plaintiffs have done nothing with respect to the incorrect return date or attempting to plead over until at the earliest, June 2010, more than sixty days after February 16, 2010.
In addition, while the original plaintiffs cite to Vissicchio v. Greenspan, Superior Court, judicial district of New Haven, Docket No. CV 03 0480706 (May 3, 2004, Arnold, J.) for the proposition that Walgreens' service of a defective summons with an invalid return date rendered it impossible for the original plaintiffs to assert their own claims against the apportionment defendants, Vissicchio is distinguishable from the facts of the present case. In Vissicchio, an apportionment complaint was filed against an original plaintiff to apportion liability against that plaintiff as to claims asserted by another original plaintiff. Id. The apportionment complaint was not accompanied by a writ of summons. Id. Although the court's view in Vissicchio was that an apportionment complaint could not be filed on a party already in the action, the court determined that if an apportionment complaint was permitted to be filed against an existing party, then that apportionment complaint would have to be accompanied by a writ and summons bearing a return date in compliance with § 52-102b in order to preserve the other original plaintiff's right to assert a claim against the apportionment defendant/original plaintiff. Id. The court in Vissicchio noted that § 52-72 could not provide relief to the apportionment plaintiffs, stating: "This is not a situation where the civil process was returnable to the wrong return date or for some other reason was defective. There was no service of process by writ and summons to be amended." Vissicchio v. Greenspan, supra, Superior Court, Docket No. CV 03 0480706. Vissicchio is distinguishable from the facts of the present case because in Vissicchio there was no return date while in the present case, there was a return date listed on the writ of summons for the apportionment complaint, albeit an erroneous date.
Therefore, the original plaintiffs' request to plead over against the apportionment defendants is denied.