Opinion
KNLCV156023284
04-04-2016
Thomas Maciolek v. Bay Associates Holding Co. One (1), LLC et al
UNPUBLISHED OPINION
RULING RE MOTIONS TO DISMISS (##105 & 114)
Timothy D. Bates, J.
Facts
On February 10, 2015, the plaintiff, Thomas Maciolek (hereinafter " Maciolek" or " plaintiff") filed a negligence action against the defendant, Bay Associates Holding Co. One (1), LLC, (hereinafter " Bay Associates" or " defendant"), claiming damages for injuries sustained from a slip and fall on ice or snow accumulated on defendant's property. On April 10, 2015, Bay Associates filed an apportionment complaint against Custom Sitework, LLC (hereinafter " Custom Sitework" or " apportionment defendant"), alleging, pursuant to General Statutes § 52-572h that Custom Sitework, as the snow plow contractor for the property involved, was negligent in the plowing of the property, and, therefore, responsible for a portion of any damages awarded.
On April 22, 2015, Custom Sitework moved to dismiss the apportionment complaint, claiming that the duty of the property owner to keep the premises free from ice and snow is nondelegable, and, therefore, the court is without subject matter jurisdiction over the apportionment complaint against Custom Sitework and the complaint should be dismissed. The motion to dismiss remains pending and will be the first issue addressed by the court.
Following the filing of the apportionment complaint and the motion to dismiss it, on May 13, 2015, Maciolek filed a notice of amendment as of right pursuant to General Statutes § 52-102b and an amended complaint alleging liability against and claiming damages from Custom Sitework as a defendant.
Custom Sitework now moves that the court to: (1) enter an order of dismissal against the apportionment complaint of Bay Associates; and (2) dismiss the complaint brought by Maciolek against Custom Sitework on the grounds that, if the court dismisses the apportionment complaint brought by Bay Associates for lack of subject matter jurisdiction, it never had personal jurisdiction over Custom Sitework, and the complaint brought by Maciolek should be considered a legal nullity.
Analysis
" A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). " The grounds which may be asserted in this motion are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person . . . (4) insufficiency of process; and (5) insufficiency of service of process." Id. In this case, Custom Sitework claims that the court never had subject matter jurisdiction over the apportionment claim of Bay Associates, and, if that is the case, Maciolek necessarily lacked personal jurisdiction for purposes of amending his complaint to include the claim against Custom Sitework as a defendant. " [J]urisdiction over the person, jurisdiction over the subject matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of the court . . . Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Emphasis omitted; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
The Apportionment Complaint of Bay Associates
Custom Sitework seeks dismissal of the apportionment complaint filed by Bay Associates, on the ground that the maintenance of the premises is a nondelegable obligation of the landowner, and, therefore, the landowner, Bay Associates, cannot assert an apportionment complaint against an allegedly negligent agent, in this case Custom Sitework.
In Smith v. Greenwich, 278 Conn. 428, 899 A.2d 563 (2006), the plaintiff, Flora Smith sought damages from the property owner, 200 Greenwich Acquisition, LLC (hereinafter " Greenwich Acquisition"), for injuries caused by negligent snow plowing. Id., 430-32. Greenwich Acquisition then impleaded the snow plower, Ronald Passerelli, Jr., as an apportionment defendant, but upon a motion from Passerelli, the court ruled that Greenwich Acquisition had an nondelegable duty to maintain the property and entered summary judgment in favor of Passerelli. Id., 432-33. Greenwich Acquisition appealed, but the Supreme Court held the landlord " may not absolve itself of liability by contracting out the performance of [the] duty" of keeping the property safe. Id., 456. The court noted that Passerelli could be directly liable to a third party for damages, but between Greenwich Acquisition and Passerelli neither could sue the other as an apportionment defendant because each could be held liable for all damages. Id., 457-61.
The apportionment statute, § 52-102b provides in pertinent 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 . . ." In this instance, under the holding of Smith v. Greenwich, supra, Custom Sitework cannot be considered " a person . . . who is or may be liable . . . for a proportionate share of the plaintiff's damages . . ." Id. Custom Sitework, if sued directly by the plaintiff, could be directly liable for all damages, but between it and Bay Associates, there can be no apportionment, because Bay Associates is vicariously liable for all damages as a property owner with a nondelegable duty.
Accordingly, Custom Sitework's motion to dismiss Bay Associates' apportionment complaint is granted.
The Complaint of the Plaintiff, Thomas J. Maciolek
On May 13, 2015, the plaintiff Maciolek amended his complaint as of right, adding Custom Sitework as a defendant under count two of the complaint pursuant to § 52-102b entitled " Addition of person as defendant for apportionment of liability purposes." Count two alleged that Bay Associates had an agreement with Custom Sitework for performance of snow and ice removal. Complaint, paragraph 12. The complaint further stated that the injuries that Maciolek incurred were due to " the carelessness and negligence" of Custom Sitework. Id., paragraph 13. The plaintiff then enumerated the injuries incurred and claimed damages from Custom Sitework. Id., paragraphs 14-17.
On May 20, 2015, Custom Sitework moved to dismiss count two, asserting that, " (1) The plaintiff cannot, as a matter of law, comply with the provisions and requirements under General Sttutes § 52-102b(d) with respect to his direct claim, and (2) the plaintiff's direct claim was asserted under a judicial process over which the [c]ourt did not have jurisdiction." Section 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 plaintiff's 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 . . . (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."
" [Section] 52-102b is a service provision, implicat[ing] personal jurisdiction rather than subject matter jurisdiction." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004). " [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction over the person . . ." Id., 31. In the present case, there is no contention that the service provisions of either subsection (a) or (d) of § 52-102b were not followed. The only contention is that if subject matter jurisdiction does not exist because § 52-572h is inapplicable, such that the apportionment complaint and apportionment defendant cannot properly be labeled as such, personal jurisdiction does not exist.
In its brief in support of the motion to dismiss, Custom Sitework claims that due to the lack of subject matter jurisdiction over the apportionment complaint brought by Bay Associates (a claim now substantiated by the court's holding above), the court lacks personal jurisdiction over Custom Sitework and could not accept or act on the amended complaint. In making this claim, Custom Sitework argues that if the court lacked subject matter jurisdiction over the apportionment complaint against Custom Sitework, it could not on the basis of a motion--as opposed to legal service presumably within the statute of limitations--proceed to file an amended complaint adding Custom Sitework as a defendant. Custom Sitework also contends that when Bay Associates filed its apportionment action on April 2, 2015, the statute of limitations for negligence had run and could only be extended by a legitimate apportionment complaint, not one subject to dismissal for lack of subject matter jurisdiction.
Custom Sitework analogizes this case to ones in which the plaintiffs failed to file a direct claim within sixty days of the filing of the apportionment complaint. See O'Connor v. Garuti, Superior Court, judicial district of New Haven, Docket No. CV-12-6033293-S, (March 3, 2014, Wilson, J.); and O& G Industries, Inc. v. Lafarge Building Materials, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-06-5002572-S, (July 24, 2007, Tyma, J.). In those cases, the failure to serve the original complaint in the time allowed resulted in the dismissal of the defendants' apportionment complaints and also the plaintiffs' direct claims due to lack of personal jurisdiction.
Maciolek, on the other hand, argues that the motion to dismiss Bay Associates' apportionment action for lack of subject matter jurisdiction does not deprive the court of personal jurisdiction over Custom Sitework as a defendant as long as it is in the case. Such a result, he submits, would fail to recognize the purpose and explicit wording of § 52-102b(a). Quoting Strother v. Mall, Inc., Superior Court, judicial district of New London, Docket No. CV12-6012030-S (October 24, 2014, Cole-Chu, J.) , he submits, " Sec. 52-102b(a) provides that when a non-party is served with an apportionment complaint, that apportionment defendant is 'a party for all purposes.'" As noted by the Supreme Court in Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 25, it is apparent that the legislature intended § 52-102b to implement the right of apportionment that previously had been created in § 52-572h. Indeed by its terms, § 52-102b operates only in conjunction with § 52-572h and its primary application is to effectuate the right to apportion liability. Sec. 52-102b was enacted as Public Acts 1995, No. 95-111, § 1 to effectuate the purposes of Tort Reform I and II, providing a mechanism to join, as parties, individuals who may be liable to the plaintiff in negligence. See Eskin v. Castiglia, 253 Conn. 516, 524-27, 753 A.2d 927 (2000). Maciolek accordingly argues that once an apportionment party still in the case is served by the plaintiff within the extended statute of limitations, the legislature has granted the court personal jurisdiction over that party. Additionally, the legislature has specifically mandated that while that party remains in the proceeding, it is " a party for all purposes, " including exposure to the plaintiffs' complaint for damages. The possibility that the apportionment party may not be liable for the apportionment complaint of the defendant that initially brought the party into the case does not, under this argument, defeat the combination of personal jurisdiction achieved by the defendant's service and subject matter jurisdiction achieved by plaintiff's amended complaint.
Tort Reform I was enacted as Public Acts 1986, No. 86-338.
Tort Reform II was enacted as Public Acts 1987, No. 87-227.
Bay Associates, in its brief on this issue, submits that the holding of the Superior Court in Shepard v. Chelsea Square Condominium Associates, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-11-6008169-S (December 1, 2011, Trombley, J.) , argues for allowing count two to stand. In that case, Shepard sued property owner Chelsea for damages sustained in a slip and fall in an icy and snowy common area. Id. Like Bay Associates, Chelsea brought an apportionment complaint against its contractor Complete, LLC, for negligent failure to maintain. Id. As in the case before the court, Complete moved to dismiss the apportionment complaint based on the claim that Chelsea had a nondelegable duty, and the court granted the dismissal. Id. The plaintiff meanwhile had brought a direct claim against Complete, and Complete moved to dismiss it for lack of personal jurisdiction. Id.
The court, in Shepard, relying on the holding in Carpenter v. Law Offices of Dressler and Associates, 85 Conn.App. 655, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004) determined that " a plaintiff's direct claim brought against an apportionment defendant under Sec. 52-102b(d) while the apportionment complaint was still pending remains viable even if the apportionment complaint is later stricken." Shepard v. Chelsea Square Condominium Associates, Inc., supra, Superior Court, Docket No. CV-11-6008169-S. The court held, that as a court of general jurisdiction, the Superior Court has the power to adjudicate the plaintiff's claims brought directly against the apportionment defendant, citing a series of Superior Court cases which have similarly interpreted Carpenter, including Taricani v. Cary's Real, LLC, Superior Court, judicial district of New Britain, Docket No. CV-04-5000087-S (January 23, 2007, Shapiro, J.) , and Crandall v. Crandall, Superior Court, judicial district of New London, Docket No. CV-08-5006965-S (November 15, 2010, Martin J.) . Id.
The court in Shepard also addressed Custom's claim in this case that an apportionment claim lacking personal jurisdiction should be treated just like an apportionment claim that is not brought within the statutory time limits. In response to this argument, the court held that the 120- and 60-day time limits constitute statutes of limitation on apportionment, but provided they are complied with, personal jurisdiction is achieved and " cannot be lost via a subsequently filed motion to dismiss, whether timely or otherwise. This finding is in accord with the general rule [that] jurisdiction once acquired is not lost or divested by subsequent events." (Internal quotation marks omitted.) Shepard v. Chelsea Square Condominium Associates, Inc., supra, Superior Court, Docket No. CV-11-6008169-S.
The procedural timetable in Shepard, differs from that in Carpenter, and is analogous to the case at hand. In Carpenter, the apportionment defendant did not move to dismiss the direct claim within thirty days after filing its appearance as required by Practice Book § 10-30, and, therefore, the court determined that the apportionment defendant waived any objection to personal jurisdiction. Carpenter v. Law Offices of Dressler and Associates, supra, 85 Conn.App. 660-61. Accordingly, the court did not reach the issue of personal jurisdiction over the direct claim. Id. In the case at hand, however, Bay Associates served the apportionment complaint on April 10, 2015, and Custom Sitework filed its motion to dismiss on April 22, 2015, well within the thirty-day window of the Practice Book § 10-30.
Practice Book § 10-30 provides in relevant part: " Any defendant, wishing to contest the court's jurisdiction . . . must do so by filing a motion to dismiss within thirty days of the filing of an appearance . . ."
The question before this court is the same one confronted by the court in Shepard-- whether Maciolek, having served Custom Sitework in accordance with § 52-102b and thus acquiring personal jurisdiction, can lose that jurisdiction as a result of the successful and timely filed motion to dismiss the apportionment complaint. The court in Shepard under identical procedural circumstances held that provided the plaintiff filed a direct action against the apportionment defendant within the sixty-day window, the court had both personal and subject matter jurisdiction. See also Dutch v. Mashtare, Superior Court, judicial district of Fairfield, Docket No. CV-08-5015796-S (April 14, 2009, Gilardi, J.) .
The court finds that while retroactively dismissing Maciolek's complaint against Custom Sitework, upon dismissal of the apportionment complaint has some mechanical appeal, such a ruling would ignore the legislature's intent and purpose to advance tort reform by providing a means to have all appropriate parties joined in the action and sharing appropriate responsibility. As long as the service provisions in § 52-102b are followed--service of the apportionment complaint by a writ, summons, and complaint upon a nonparty within 120 days of the return date of the original complaint, as well as the assertion of a claim arising out of the same transaction or occurrence within sixty days of the return date of the apportionment complaint--personal jurisdiction exists under the statute for a direct claim. " Section 52-102b provides for a right of apportionment unknown under common law . . . [and] . . . creates a right absent under common law." Nationwide Insurance Enterprise v. A& G Development, LLC, Superior Court, judicial district of Fairfield, Docket No. CV-99-0362565-S (July 23, 2001, Stevens, J.) (30 Conn. L. Rptr. 191). Accordingly, § 52-102b should be read in a way which makes sense and accomplishes, rather than frustrates, the goal of tort reform.
Custom Sitework's second ground for dismissal of count two of the amended complaint is that " the plaintiff's direct claim was asserted under a judicial process over which the [c]ourt did not have jurisdiction." The court finds that personal jurisdiction exists under § 52-102b(d), and, therefore, the court also necessarily finds that the direct claim was asserted under a judicial process over which the court has jurisdiction. Moreover, the sole case upon which Custom Sitework relies for this claim-- Broaca v. Broaca, 181 Conn. 463, 435 A.2d 1016 (1980)--is inapplicable. That case stands for the proposition that judgments entered without subject matter or personal jurisdiction are void ab initio and may be attacked either directly or collaterally. Id., 467-68. Under such circumstances, a court may open a judgment to vacate it or refuse to recognize the decision. Id., 468. This proposition is inapplicable here where the court has found jurisdiction over the direct claims against Custom Sitework. The second ground for dismissal of the count two of the amended complaint is unavailing.
The motion to dismiss count two is denied.