Opinion
No. CV09-5014771
October 13, 2010
RULING RE APPORTIONMENT DEFENDANT CARLOS PENA'S MOTION TO DISMISS #120
1. This case arises out of personal injury claim filed by plaintiff against the original two defendants, Joann Sardo and Tracy Rappa, who were the owners of the real property upon which the plaintiff was injured. In his initial complaint dated August 5, 2009, the plaintiff claims that while he was working as an exterminator on the property owned by said defendants and while descending the stairway to the outside deck, a step broke causing him to fall and sustain certain injuries. The plaintiff's employer, Bug Busters, Inc. has intervened in the action.
2. Pursuant to General Statutes Sec. 52-102(b), Connecticut's so-called apportionment statute, those defendants have filed and served an apportionment complaint dated December 2, 2009, with a return date of December 22, 2009, on Michael Luonga and Carlos Pena, who participated in the construction and installation of the deck, including the steps. The apportionment plaintiffs allege that the plaintiff's injuries were due to the improper construction of their deck. Pena admits that he was properly served, as an individual, with the apportionment complaint. There is no question that the apportionment complaint was not served on First Best Builders, LLC, which was the entity under which Pena did business.
3. On February 4, 2010, the plaintiff filed an amended complaint (#110) consisting of the two counts against the original defendants in addition to one count each against Luonga and Pena (Count #4) and one count against Pena's LLC (Count #5). The certification page filed with the amended complaint indicates service on all counsel of record and does not indicate any service of the amended complaint upon Pena, who at that point had not appeared in the case; although properly served with the apportionment complaint.
4. Pena, who on July 27, 2010, filed an appearance through counsel, now moves to dismiss both counts #4 and #5, asserting that neither Pena nor the LLC were served with the amended complaint in a manner and within the time provided by subparagraph (d) of the apportionment statute, which provides:
(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.
5. Specifically, as to the fifth count against the LLC, Pena correctly points out that First Best Builders, LLC was not named as a party in the apportionment complaint, was not served with the apportionment complaint and was not the subject of any count in the apportionment complaint. Since this is undisputed the court agrees with the Pena that the LLC is not now and has never been a party to this action, therefore, Count #5 should be dismissed as the court has no personal jurisdiction over the LLC.
6. As to the fourth count, Pena argues that even conceding that the court has acquired personal jurisdiction over him by virtue of the service of the apportionment complaint, the plaintiff has failed to assert a proper claim against him due to the plaintiff's non-compliance with the requirements of the cited statute and the plaintiff's failure to comply with Practice Book Section 10-12(c) which provides: "Any pleading asserting new or additional claims for relief against parties who have not appeared or who have been defaulted shall be served on such parties."
7. Pena asserts that the appellate court's holding in Tocco v. Wesleyan University, 112 Conn.App. 28 (2009), is controlling and obligates the court to dismiss the fourth count, while in his oppositional memorandum filed September 25, 2010 (#122), the plaintiff points to Judge Gilardi's opinion in Dutch v. Mashtare, judicial district of Fairfield at Bridgeport, April 14, 2009 [ 47 Conn. L. Rptr. 518], issued three months after Tocco, urging the court to exercise its discretion and to deny Pena's motion, arguing that there is no prejudice to Pena, who now appears.
8. In Tocco, which arose out of a fall which the plaintiff took an ice skating rink, the defendant university had properly served an apportionment complaint on the Hamden Figure Skating Association, claiming it was responsible for the plaintiff's injuries. The plaintiff, nearly a year thereafter, mailed her amended complaint to the association. At that point in the proceedings the association had not appeared. Once it did appear, it filed a motion to dismiss claiming the plaintiff had no personal jurisdiction over the association. The trial court granted the motion, agreeing with the association that the plaintiff's amended complaint was not properly served on the association as required by Practice Book Section 10-12(c). The appellate court affirmed and rejected the plaintiff's argument that because the association was already made a party to the action due to the service of the apportionment complaint, C.G.S. Section 52-102b(d) was followed when the plaintiff "asserted" her new claim against the association by sending it a copy of the complaint. The trial court and appellate court, however, agreed with the association that since it was a nonappearing party, the plaintiff could not assert a new claim under the cited statute without effecting service on the association via P.B. Sec. 10-12(c) and 10-13 (requiring service in the same manner as the original complaint).
9. The appellate court stated, at page 32: "The meaning of Practice Book Sec. 10-12(c) and 10-13 is plain and unambiguous that a nonappearing party must be served in the same manner as required for service of an original complaint." The court held that since the language of 52-102b(d) does not include a provision applicable to a nonappearing party, the rules of practice controlled. As the plaintiff's claim against the association was not properly served the court lacked personal jurisdiction, and therefore dismissal was warranted.
10. Although the plaintiff offers much the same argument, that was rejected in Tocco, the plaintiff cites Judge Gilardi's opinion in Dutch, wherein the court held the issue of whether a violation of the practice book, by failing to certify the filing of a cross-complaint, warrants dismissal, is subject to the exercise of discretion by the court.
11. In this case, however, the court is bound by the Tocco decision which, unlike Dutch, involved a nonappearing party. As noted, Pena had not filed an appearance at the time the plaintiff filed his amended complaint. Moreover, service was not only not certified by the plaintiff but was not even attempted until well after the sixty day statutory period had expired. As in Tocco plaintiff in this case was obligated to comply with the cited sections of the practice book. The plaintiff did not do so. As a consequence, the court did not acquire personal jurisdiction in so far as the plaintiff's attempt to assert a claim against Pena is concerned. As in Tocco, dismissal of the fourth count is warranted.
For the foregoing reasons Pena's motion to dismiss (#120) is GRANTED as to Count #4 and Count #5.