Opinion
CV166058965S
01-04-2017
Cedric Mitchell v. 631 Middletown Ave., LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#118)
Robin L. Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
On May 26, 2016, the plaintiff, Cedric Mitchell, filed a one-count amended complaint against the apportionment defendant, Cristoforo Services, Inc. The amended complaint alleges the following facts. On or about January 24, 2014, the plaintiff was " an invitee, customer, and/or patron at the premises located at or near 631 Middletown Avenue in New Haven . . ." (the premises). At that time, there existed an accumulation of ice and/or snow on the exterior sidewalk leading to the front stairs of the property. The plaintiff slipped and fell on that accumulation and sustained or exacerbated serious injuries in his back, neck, and hips. As a result of his injuries, the plaintiff incurred medical expenses and may incur lost earning capacity and other financial losses in the future.
The plaintiff filed the original complaint against the defendant, 631 Middletown Ave., LLC, on December 9, 2015. The defendant subsequently filed an apportionment complaint, pursuant to General Statutes § 52-572h, against the apportionment defendant on April 15, 2016. The apportionment defendant filed a motion to dismiss the apportionment complaint on June 20, 2016, on the ground that a landowner cannot apportion liability of a nondelegable duty.
The amended complaint additionally alleges that, pursuant to a contract entered into by the defendant and the apportionment defendant, the apportionment defendant was hired to remove snow and ice from the exterior of the premises. The plaintiff alleges, inter alia, that the apportionment defendant was negligent in that it failed to remove or treat accumulations of snow and/or ice and that this negligent failure caused the plaintiff to fall and subsequently sustain injuries and damages. The plaintiff seeks money damages for the injuries sustained.
On June 20, 2016, the apportionment defendant filed a motion to dismiss the amended complaint with a supporting memorandum of law on the ground that the court does not have personal jurisdiction over the plaintiff's direct claim against the apportionment defendant due to insufficiencies in the apportionment complaint. On September 2, 2016, the defendant filed an objection to the apportionment defendant's motion with a supporting memorandum of law on the ground that the plaintiff properly plead over against the apportionment defendant within sixty days of the return date of the apportionment complaint and, therefore, the court has personal jurisdiction over the apportionment defendant. The plaintiff did not file an objection to the apportionment defendant's motion to dismiss. On October 3, 2016, the court heard oral argument on the motion at short calendar.
Practice Book § 10-31(a) provides: " Any adverse party shall have thirty days from the filing of the motion to dismiss to respond to the motion to dismiss by filing and serving in accordance with Sections 10-12 through 10-17 a memorandum of law in opposition and, where appropriate, supporting affidavits as to facts not apparent on the record." (Emphasis added.) Therefore, the defendant, as an adverse party, has standing to object to the apportionment defendant's motion to dismiss the plaintiff's amended complaint.
DISCUSSION
" [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.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
The apportionment defendant argues that the amended complaint brought under General Statutes § 52-102b(d) must be dismissed because the court does not have personal jurisdiction over the apportionment defendant due to lack of subject matter jurisdiction over the apportionment complaint. Specifically, the apportionment defendant argues that the apportionment plaintiff is barred from bringing the apportionment complaint under General Statutes § 52-572h. The defendant argues in response that the motion to dismiss should be denied, regardless of any insufficiencies the court may find with the apportionment complaint, because the plaintiff properly plead over against the apportionment defendant within the allotted sixtyday period provided by § 52-102b(d).
Section 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."
Section 52-572h allows for a defendant in a negligence action to apportion liability where another party is also at fault. In the present case, the apportionment defendant alleges that the apportionment complaint must be dismissed because a landowner may not apportion a nondelegable duty to keep its premises safe. That motion is also currently pending before this court.
" [Section] 52-102b implicates a court's personal jurisdiction . . ." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 14, 848 A.2d 418 (2004). " The jurisdiction a trial court has over an apportionment complaint differs from its jurisdiction over direct claims asserted by a plaintiff against an apportionment defendant." Carpenter v. Law Offices of Dressler & Associates, LLC, 85 Conn.App. 655, 660, 858 A.2d 820 (2004). " The Connecticut Appellate Court in [Carpenter] . . . allowed a direct claim by a plaintiff to stand against apportionment defendants even though the underlying apportionment was subsequently stricken" because the apportionment complaint was still in place when the direct claim was filed. (Citation omitted.) Crandall v. Crandall, Superior Court, judicial district of New London, Docket No. CV-08-5006965-S (November 15, 2010, Martin, J.) (50 Conn.L.Rptr. 887, 889, ) citing Carpenter v. Law Offices of Dressler & Associates, LLC, supra, 655.
Applying the holding in Carpenter, Connecticut trial courts have determined that an apportionment complaint's insufficiencies do not deprive the court of jurisdiction over properly plead over § 52-102b(d) direct complaints. See Maciolek v. Bay Associates Holding Co. One, LLC, Superior Court, judicial district of New London, Docket No. CV-15-6023284-S (April 4, 2016, Bates, J.) (62 Conn.L.Rptr. 61, 64, ) (possibility that apportionment party may not be liable for apportionment complaint does not defeat personal jurisdiction achieved by defendant's service and subject matter jurisdiction achieved by plaintiff's amended complaint); Shepard v. Chelsea Square Condominium Assn., Inc., Superior Court, judicial district of Waterbury, Docket No. CV11-6008169-S (December 1, 2011, Trombley, J.) (53 Conn.L.Rptr. 49, 52, ) (once jurisdiction properly acquired and direct claim properly asserted, jurisdiction not divested by subsequent motion to dismiss); Stapleford v. People's Bank, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-10-6005576-S, (September 20, 2011, Arnold, J.) (independent contractors owe direct duty of care to plaintiffs); Crandall v. Crandall, supra, Superior Court, Docket No. CV-08-5006965-S, (timely filed direct complaint brought while apportionment complaint pending not dependent on viability of apportionment complaint). It is " a general rule, [that] jurisdiction once acquired is not lost or divested by subsequent events." (Internal quotation marks omitted.) RAL Mgmt. v. Valley View Assocs., 278 Conn. 672, 687, 899 A.2d 586 (2006); but see Sibilla v. Savin Harbor Condominium, Assn., Inc., Superior Court, judicial district of New Haven, Docket No. 445433 (October 18, 2001, Blue, J.) (30 Conn.L.Rptr. 544, 545, ) (" [s]ection 52-102b . . . is not a jurisdictional statute with respect to new claims brought by first-party plaintiffs directly against apportionment defendants . . . [It] provides a limited exception to the statute of limitations for such claims . . ."
In the present case, the defendant filed the apportionment complaint against the apportionment defendant on April 15, 2016, pursuant to § 52-572h. On May 26, 2016, the plaintiff filed a direct complaint against the apportionment defendant under § 52-102b(d). The plaintiff's amended complaint was filed within sixty days of the filing of the apportionment complaint, in compliance with the requirements of § 52-102b(d). The apportionment defendant's motion to dismiss the apportionment complaint, filed June 20, 2016, is currently pending before this court.
Similar to the cases previously discussed, the plaintiff filed the direct complaint against the apportionment defendant prior to the apportionment defendant's attack on the apportionment complaint. This court has not yet ruled on the apportionment defendant's motion to dismiss, and even if the court were to grant the apportionment defendant's motion to dismiss the apportionment complaint in its entirety, the court's action would not affect the court's jurisdiction over the plaintiff's direct amended complaint against the apportionment defendant. The plaintiff complied with the procedural requirements of § 52-102b(d), and, therefore, the apportionment defendant's motion to dismiss the amended complaint for lack of personal jurisdiction is denied.
CONCLUSION
For the foregoing reasons, the apportionment defendant's motion to dismiss the plaintiff's amended complaint is denied.