Arthur J. Shepard v. Chelsea Square Condominium Association, Inc. et al. (2011)

MEMORANDUM OF DECISION RE APPORTIONMENT DEFENDANT'S MOTION TO DISMISS—# 123

I. NATURE AND HISTORY OF PROCEEDINGS

This matter arises out of claims of personal injury allegedly sustained by the plaintiff, Arthur Shepard, Jr., when he slipped and fell on ice and/or snow while accessing a dumpster on property ¹ owned by Chelsea Square Condominium Association, Inc. (Chelsea) on December 26, 2008.   On December 23, 2010, the plaintiff, who owns a unit on the property, commenced an action against Chelsea for its alleged negligence in, inter alia, failing to maintain the common area where the dumpsters are located in a reasonably safe condition.   The return date on the plaintiff's complaint was January 25, 2011.

On April 20, 2011, pursuant to General Statutes Sections 52–572h ² and 52–102b(a),³ Chelsea served an apportionment complaint (# 114) with a return date of May 17, 2011, on Complete, LLC (Complete), an independent contractor that Chelsea hired to perform snow removal services at the 975 Meriden Road property.⁴  The apportionment complaint alleges that Complete is liable for a proportionate share of any damages that the plaintiff recovers in his action against Chelsea because Complete's negligent failure to maintain the premises in a reasonably safe condition proximately caused the plaintiff's injuries.   Complete filed an appearance on May 16, 2011.

On May 17, 2011, pursuant to Sec. 52–102b(d) ⁵ and Practice Book Sec. 10–11(b),⁶ the plaintiff filed a direct claim interposed at Complete (# 119) “in reliance on the allegations asserted by Chelsea” against the apportionment defendant.   In his direct claim, the plaintiff alleges that Complete caused his injuries by, inter alia, negligently failing to maintain the premises in a reasonably safe condition.   On May 17, 2011, the plaintiff sent a copy of his direct claim by first class mail, postage prepaid, to attorney Lloyd Pedersen, who had filed the appearance on Complete's behalf on May 16, 2011.

On June 3, 2011, pursuant to Practice Book Sec. 10–39 et seq., Complete filed a motion to strike the apportionment complaint (# 121) and a memorandum in support (# 122), arguing that the apportionment complaint was legally insufficient to state a claim upon which relief could be granted.   Specifically, Complete alleged that Chelsea had a nondelegable duty as property owner to maintain its premises in a reasonably safe condition, and that under Smith v. Greenwich, 278 Conn. 428 (2006),⁷ a defendant that owns or controls property may not bring an apportionment claim against a contractor hired to carry out the defendant's nondelegable duties.   Chelsea did not file a memorandum of law in opposition to the motion to strike and offered no opposition at short calendar.   On September 6, 2011, this court granted Complete's motion to strike the apportionment complaint.

On June 9, 2011, pursuant to Practice Book Sec. 10–30 et seq., Complete filed a motion to dismiss the plaintiff's direct claim against it (# 123) and a memorandum of law in support (# 124), arguing that the court lacks personal jurisdiction over it as an apportionment defendant.⁸  On June 28, 2011, the plaintiff filed a memorandum of law in opposition to the motion to dismiss (# 126), asserting that the court has personal jurisdiction to hear his direct claim under Connecticut case law notwithstanding any deficiency in the apportionment complaint, and that he properly served the direct claim on Complete in accordance with the Practice Book and the apportionment statute.   On June 29, 2011, Complete filed a reply to the plaintiff's opposition to the motion to dismiss (# 127).   The matter was heard on the short calendar on September 6, 2011.

After reviewing the court file, including the memoranda filed by the parties and the cases cited therein;  after doing its own research;  and after considering the oral arguments advanced by the parties at short calendar, for reasons hereinafter stated, the court will deny Complete's motion to dismiss.

II. 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 (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 (2009).  “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss ․ 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 (2009).

III. CLAIMS OF PARTIES

In its motion to dismiss, Complete argues that the plaintiff's direct claim must be dismissed because the court lacks personal jurisdiction over it as an apportionment defendant.   Specifically, Complete argues that the plaintiff can only bring it into the court's jurisdiction by (1) a timely summons;  (2) timely pleading over pursuant to a valid apportionment complaint;  or (3) timely pleading over pursuant to a third-party action.⁹  Accordingly, because the plaintiff never served it with a summons or pleaded over pursuant to a valid apportionment complaint, Complete asserts that the court lacks personal jurisdiction over it as an apportionment defendant, and that its timely motion to dismiss the plaintiff's direct claim must be granted.

In his memorandum in opposition to the motion to dismiss, Shepard contends that the court has subject matter and personal jurisdiction to decide a plaintiff's direct claim against an apportionment defendant notwithstanding any deficiency in the apportionment complaint under Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10 (2004) and Carpenter v. Law Offices of Dressler & Associates, LLC, 85 Conn.App. 655, cert. denied, 272 Conn. 909 (2004).   The plaintiff further contends that the court has personal jurisdiction over Complete because the plaintiff properly served his direct claim on Complete pursuant to the apportionment statute and Practice Book Sections 10–12(a) and 10–13, which authorize service on an appearing party of every pleading subsequent to the original complaint by mail addressed to that party's attorney.   Consequently, the plaintiff argues that he can assert a direct claim against Complete under the sixty-day extension of the statute of limitations provided by Sec. 52–102b(d), and that the viability of his direct claim does not depend upon the viability of the defendant's apportionment complaint against Complete.

IV. APPLICABLE LAW

The court first addresses Complete's contention that the plaintiff's direct claim against it must be dismissed for lack of personal jurisdiction because the plaintiff failed to plead over pursuant to a valid apportionment complaint.   In Carpenter v. Law Offices of Dressler & Associates, LLC, supra, 85 Conn.App. 655, our Appellate Court held 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.   In Carpenter, a plaintiff sued a lawyer and a law firm for legal malpractice.  Id., 657.   The defendant lawyer filed an apportionment complaint against the plaintiff's subsequent attorneys, and the plaintiff amended her complaint to assert direct claims against the apportionment defendants.  Id. The trial court granted the apportionment defendants' motion to strike the apportionment complaint on the ground that it lacked subject matter jurisdiction over an apportionment complaint based on a legal malpractice action under Connecticut's apportionment statute.  Id. The trial court then granted the apportionment defendants' motion to dismiss the direct claims against them on the ground that it lacked personal jurisdiction over the apportionment defendants because it had previously decided that it lacked subject matter jurisdiction over the defendant's apportionment complaint.  Id., 657–58.

On appeal of the motion to dismiss, the Appellate Court held that an apportionment complaint that is later determined to be improper does not retroactively affect direct claims that the plaintiff asserted against an apportionment defendant while the apportionment complaint was still pending.   Id. 660–61.   The court reasoned that “[a]t the time [the plaintiff] amended her original complaint to include the direct claims against the apportionment defendants, the court had yet to rule on the motion to strike the apportionment complaint.   With the apportionment complaint still in place, there was no reason that the plaintiff could not ‘plead over’ pursuant to Sec. 52–102b(d) and assert direct claims against the apportionment defendants ․ As a court of general jurisdiction, the trial court had the power to adjudicate the ․ claims the plaintiff brought directly against the apportionment defendants.   Because the Supreme Court in Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 26, found Sec. 52–102b to be a service provision, the trial court improperly based its dismissal of the plaintiff's claims against the apportionment defendants on lack of subject matter jurisdiction over the apportionment complaint.”  Id.

Subsequent superior court decisions “have interpreted Carpenter to mean that the lack of viability of the apportionment complaint is not fatal to a direct claim asserted by the plaintiff.”  (Internal quotation marks omitted.)   Taricani v. Cary's Real, LLC, Superior Court, judicial district of New Britain, Docket No. CV 04 5000087 (January 23, 2007, Shapiro, J.) (42 Conn. L. Rptr. 817, 818);  see also Crandall v. Crandall, Superior Court, judicial district of New London, Docket No. CV 08 5006965 (November 15, 2010, Martin, J.) (50 Conn. L. Rptr. 887, 889) (finding viability of plaintiff's complaint against apportionment defendant, timely filed while apportionment complaint was still pending, does not depend on viability of apportionment complaint);  Nieves v. Housing Authority, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 04 0200048 (November 7, 2007, Karazin, J.) (44 Conn. L. Rptr. 493, 495) (denying motion to strike plaintiff's direct claim against apportionment defendant, which plaintiff had filed before apportionment complaint was stricken);  Caruso v. Willow's Kawasaki, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 06 5002130 (July 13, 2007, Upson, J.) (43 Conn. L. Rptr. 767, 768) (noting if court found apportionment complaint was not viable, court would not be required to strike plaintiff's direct complaint against apportionment defendant filed while apportionment complaint was still pending);  Isner v. Ryefield II Assn., Inc., Superior Court, judicial district of Tolland, Docket No. CV 05 5000044 (May 15, 2006, Peck, J.) (denying motion to strike plaintiff's direct claim against apportionment defendant filed before apportionment complaint was deemed legally insufficient and within sixty-day period afforded to plaintiff pursuant to Sec. 52–102b(d)).

V. DISCUSSION

A. Personal Jurisdiction

In the present case, the viability of the plaintiff's direct claim against Complete, which was asserted within sixty days of the apportionment complaint's return date as required under Sec. 52–102b(d), does not depend on the viability of Chelsea's apportionment complaint against Complete.   Pursuant to Carpenter, the plaintiff asserted his direct claim against Complete while the defendant's apportionment complaint was still pending on May 17, 2011.   In light of the sixty-day window afforded to the plaintiff by Sec. 52–102b(d), during which time the statute of limitations governing his negligence action was extended, his claim against Complete is not barred by the two-year limitation period of General Statutes Sec. 52–584.¹⁰  Like the plaintiff in Carpenter, there is no reason why Shepard could not plead over pursuant to Sec. 52–102b(d) and assert a direct claim against Complete while Chelsea's apportionment complaint was still in place.¹¹

B. Method of Service

Furthermore, Complete's contention that the plaintiff's direct claim must be dismissed for lack of personal jurisdiction because Shepard never served Complete with a summons also fails.  Section 52–102b(a) provides in relevant part:  “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.”  “Subsection (a) is a provision only for a defendant to bring a nonparty into the action ․ for apportionment purposes, and service is required because that is how you get a nonparty into the civil action.”   Burke v. Barrett, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 06 5002018 (March 26, 2008, Downey, J.) (45 Conn. L. Rptr. 247, 248).  “Unlike claims under subsection (a), once the apportionment defendant has been served and is in the case as a party, additional service is not required of the claim under subsection (d) to acquire personal jurisdiction over an existing party.”   Id. Therefore, once defendant Chelsea served the apportionment complaint on Complete on April 20, 2011, the superior court acquired personal jurisdiction over Complete in this case under Sec. 52–102b(a).

Practice Book Sections 10–12 through 10–14 provide the procedure for serving copies of pleadings in a case on an appearing party.  “It is the responsibility of counsel ․ to serve on each other party who has appeared one copy of every pleading subsequent to the original complaint.   When a party is represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the judicial authority.”  (Emphasis added.)  Practice Book Sec. 10–12(a).  “Service upon the attorney ․ may be by ․ mailing it to the last known address of the attorney ․ Service by mail is complete upon mailing.”  Id., Sec. 10–13.  “Proof of service pursuant to Section 10–12(a) ․ may be made by ․ a certificate of counsel for the party filing the pleading or paper ․” Id., Sec. 10–14(a).   In the present case, Complete entered its appearance on May 16, 2011.   Accordingly, the plaintiff properly served his direct claim on Complete by sending a copy of the claim by first class mail, postage prepaid, to Complete's counsel of record on May 17, 2011.¹²

C. Complete's Timely Filed Motion To Dismiss

Based upon the ruling in Carpenter and this court's finding herein that the plaintiff properly asserted a direct claim against Complete pursuant to the apportionment statute, there can be no question that the court acquired personal jurisdiction over Complete.   This conclusion, however, does not end the court's inquiry as the question remains whether the second issue addressed by the appellate court in Carpenter is applicable to the procedural posture of this case and dispositive of the motion before this court.

In Carpenter, the appellate court agreed with the plaintiff's alternative claim that the apportionment defendants waived any right to challenge the court's personal jurisdiction due to their failure to file their motion to dismiss within the thirty-day window required by Practice Book Sec. 10–30.¹³  The court found that since Sec. 52–102b implicated personal jurisdiction, the apportionment defendants' untimely filing of the motion to dismiss the apportionment complaint resulted, pursuant to Practice Book Sec. 10–32, in a waiver of any opportunity to contest personal jurisdiction.¹⁴  The court held that “[b]ecause Section 52–102b implicates personal jurisdiction, a party must object to defective service of process for a claim brought pursuant to the statute within thirty days of the filing of an appearance.   Failure to do so waives any such objection.”  (Emphasis added.)   Carpenter v. Law Offices, supra, 85 Conn.App. 662.   The court noted that the filing of the motion to dismiss was “well outside the thirty day time period during which the motion should have been filed.”  Id. The appellate court concluded:  “The untimely filing of their motion to dismiss waived any challenge the apportionment defendants may have had to the personal jurisdiction of the court.”  (Emphasis added.)  Id.

In this case there is no question that the filing of the motion to dismiss by Complete was timely.   As a result of the service of the apportionment complaint on its client on April 20, 2011, counsel appeared for Complete on May 16, 2011.   The plaintiff asserted the direct claim against Complete on May 17, 2011, just one day after counsel appeared.   Complete filed its motion to dismiss on June 9, 2011, well within the mandated thirty-day window.   Unlike the circumstances addressed by the appellate court in Carpenter and unlike any of the post-Carpenter trial court cases, Complete's motion to dismiss was timely filed for the purpose of contesting personal jurisdiction.   It is noteworthy that none of the post-Carpenter trial court opinions cited herein dealt with a motion to dismiss, timely filed, or otherwise.   In Crandall, Nieves, Caruso and Isner, the issue was raised via a motion to strike the plaintiff's direct claim, while in Taricani, Judge Shapiro dealt with a motion for summary judgment.

The question therefore remains that even though Carpenter would allow the plaintiff's direct claim to stand, thereby acquiring personal jurisdiction over Complete despite the invalid apportionment complaint, may that personal jurisdiction, once acquired, be subsequently negated or lost by a timely filed motion to dismiss?   Complete argues that the Supreme Court's decision in Lostritto, supra, would answer that question in the affirmative.   Lostritto, however, dealt with the service of the apportionment complaint outside the one-hundred-twenty-day limit provided by Sec. 102b(a).  (See footnote # 3.)   In this case, the plaintiff asserted his direct claim within the sixty-day window provided by Sec. 102b(d) and, as hereinbefore discussed, made proper service on the apportionment defendant while the timely brought and appropriately served apportionment complaint was pending.   This court therefore finds that once personal jurisdiction was properly acquired over Complete and the plaintiff's direct claim was properly asserted, based on the appellate court's decision in Carpenter and the trial court cases cited herein, that jurisdiction 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.)  RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 687 (2006);  In Re Shonna K., 77 Conn.App. 246, 258 (2003);  Hanes v. Board of Education of Bridgeport, 65 Conn.App. 224, 229 (2001).   In the context of the apportionment statute, see Dutch v. Mashtare, Superior Court, judicial district of Fairfield, Docket No. CV 08 5015796 (April 14, 2009, Gilardi, J.) (47 Conn. L. Rptr. 518), wherein the court held that formal service of the complaint on the apportionment defendant was not required for a plaintiff to properly “assert” a claim against an apportionment defendant under Sec. 52–102b(d), where the apportionment defendant had previously been properly served with the apportionment complaint, thereby giving the court personal jurisdiction over the apportionment defendant.

VI. CONCLUSION

For the foregoing reasons Complete's Motion To Dismiss (# 123) the plaintiff's direct claim against it is denied.

Wilson J. Trombley, Judge

FOOTNOTES

FN1. The subject property is located at 975 Meriden Road in Waterbury, Connecticut..  FN1. The subject property is located at 975 Meriden Road in Waterbury, Connecticut.

FN2. Section 52–572h(c) provides in relevant part:  “In a negligence action to recover damages resulting from personal injury ․ if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages ․”.  FN2. Section 52–572h(c) provides in relevant part:  “In a negligence action to recover damages resulting from personal injury ․ if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages ․”

FN3. Section 52–102b is Connecticut's apportionment statute.   Subsection (a), provides in relevant part:  “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.”.  FN3. Section 52–102b is Connecticut's apportionment statute.   Subsection (a), provides in relevant part:  “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.”

FN4. On May 10, 2011, pursuant to this court's April 25, 2011, order granting Chelsea's April 14, 2011, motion to cite in Complete (# 109), Chelsea also served a third-party complaint (# 116) with a return date of June 7, 2011, on Complete, alleging that Complete is responsible in whole or part for the plaintiff's damages because it negligently performed snow removal services, and seeking common-law indemnification for any sums the plaintiff recovers in his action against Chelsea..  FN4. On May 10, 2011, pursuant to this court's April 25, 2011, order granting Chelsea's April 14, 2011, motion to cite in Complete (# 109), Chelsea also served a third-party complaint (# 116) with a return date of June 7, 2011, on Complete, alleging that Complete is responsible in whole or part for the plaintiff's damages because it negligently performed snow removal services, and seeking common-law indemnification for any sums the plaintiff recovers in his action against Chelsea.

FN5. 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.”  (Emphasis added.).  FN5. 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.”  (Emphasis added.)

FN6. Practice Book Sec. 10–11(b) provides in relevant part:  “The plaintiff, within twenty days after the third party defendant appears in the action, may assert any claim against the third party defendant arising out of the transaction or occurrence which is the subject matter of the original complaint ․”.  FN6. Practice Book Sec. 10–11(b) provides in relevant part:  “The plaintiff, within twenty days after the third party defendant appears in the action, may assert any claim against the third party defendant arising out of the transaction or occurrence which is the subject matter of the original complaint ․”

FN7. In Smith v. Greenwich, supra, 278 Conn. 430–32, the plaintiff brought a negligence action against the defendant after she slipped on ice on a sidewalk adjacent to the defendant's property.  Id. The defendant filed an apportionment complaint against the snow removal contractor that it had hired, alleging that the independent contractor's negligence caused the plaintiff's injuries.  Id., 432.   In rejecting the defendant's claim that a landowner may assert an apportionment complaint against an independent contractor, the Supreme Court relied on the nondelegable duty doctrine and stated:  “Under the general rule, an employer is not liable for the negligence of its independent contractors ․ One exception to this general rule, however, is that the owner or occupier of premises owes invitees a nondelegable duty to exercise ordinary care for the safety of such persons.”  (Citations omitted;  internal quotation marks omitted.)   Id., 458.   The court concluded that “the owner or occupier of a premises owes a nondelegable duty to keep the premises safe ․ Should the owner or occupier of the premises hire a contractor to maintain the property, the owner or occupier is vicariously liable for the consequences arising from that contractor's tortious conduct ․ [A] defendant that owns or controls property may not bring an apportionment claim against a contractor hired to carry out the defendant's nondelegable duties.”  Id., 460..  FN7. In Smith v. Greenwich, supra, 278 Conn. 430–32, the plaintiff brought a negligence action against the defendant after she slipped on ice on a sidewalk adjacent to the defendant's property.  Id. The defendant filed an apportionment complaint against the snow removal contractor that it had hired, alleging that the independent contractor's negligence caused the plaintiff's injuries.  Id., 432.   In rejecting the defendant's claim that a landowner may assert an apportionment complaint against an independent contractor, the Supreme Court relied on the nondelegable duty doctrine and stated:  “Under the general rule, an employer is not liable for the negligence of its independent contractors ․ One exception to this general rule, however, is that the owner or occupier of premises owes invitees a nondelegable duty to exercise ordinary care for the safety of such persons.”  (Citations omitted;  internal quotation marks omitted.)   Id., 458.   The court concluded that “the owner or occupier of a premises owes a nondelegable duty to keep the premises safe ․ Should the owner or occupier of the premises hire a contractor to maintain the property, the owner or occupier is vicariously liable for the consequences arising from that contractor's tortious conduct ․ [A] defendant that owns or controls property may not bring an apportionment claim against a contractor hired to carry out the defendant's nondelegable duties.”  Id., 460.

FN8. Complete's motion to dismiss is not directed against the claim that the plaintiff asserts against it as a third-party defendant under Practice Book Sec. 10–11(b)..  FN8. Complete's motion to dismiss is not directed against the claim that the plaintiff asserts against it as a third-party defendant under Practice Book Sec. 10–11(b).

FN9. In its memorandum in support of its motion to dismiss, Complete only considers the first two methods of acquiring personal jurisdiction over it as an apportionment defendant.   For reasons set forth herein, this court finds that it has personal jurisdiction over Complete without considering the third method..  FN9. In its memorandum in support of its motion to dismiss, Complete only considers the first two methods of acquiring personal jurisdiction over it as an apportionment defendant.   For reasons set forth herein, this court finds that it has personal jurisdiction over Complete without considering the third method.

FN10. Section 52–584 provides in relevant part:  “No action to recover damages for injury to the person ․ caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained ․”.  FN10. Section 52–584 provides in relevant part:  “No action to recover damages for injury to the person ․ caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained ․”

FN11. Complete argues that “[s]urely the apportionment statute is not meant to allow a plaintiff to bootstrap himself into an apportionment claim ․ by virtue of filing a claim immediately upon an appearance by the improperly apportioned entity,” “thereby robbing the [apportionment] defendant of a statute of limitations defense, by virtue of, essentially, beating the defendant to the courthouse.”   This argument misconstrues the purpose of Sec. 52–102b(d).  “The function of § 52–102b(d) is ․ to extend by the limitations period for the assertion of a negligence claim against any person who becomes an apportionment defendant in a pending negligence action at or near the expiration of the general limitations period for bringing such claims.   By extending the limitations period ․ for sixty days after the return date on the apportionment complaint, § 52–102b(d) ensures that any plaintiff whose claim for damages is subject to reduction by a last-minute claim for apportionment does not lose the right to recover 100 [percent] of her proven damages from all persons, including the apportionment defendant, whom her jury finds to have proximately caused those damages by their negligence.”   Branford v. Commercial Flooring Concepts, Inc., Superior Court, judicial district of Hartford, Docket No. CV 03 0826299 (March 10, 2004, Sheldon, J.) (36 Conn. L. Rptr. 673, 674)..  FN11. Complete argues that “[s]urely the apportionment statute is not meant to allow a plaintiff to bootstrap himself into an apportionment claim ․ by virtue of filing a claim immediately upon an appearance by the improperly apportioned entity,” “thereby robbing the [apportionment] defendant of a statute of limitations defense, by virtue of, essentially, beating the defendant to the courthouse.”   This argument misconstrues the purpose of Sec. 52–102b(d).  “The function of § 52–102b(d) is ․ to extend by the limitations period for the assertion of a negligence claim against any person who becomes an apportionment defendant in a pending negligence action at or near the expiration of the general limitations period for bringing such claims.   By extending the limitations period ․ for sixty days after the return date on the apportionment complaint, § 52–102b(d) ensures that any plaintiff whose claim for damages is subject to reduction by a last-minute claim for apportionment does not lose the right to recover 100 [percent] of her proven damages from all persons, including the apportionment defendant, whom her jury finds to have proximately caused those damages by their negligence.”   Branford v. Commercial Flooring Concepts, Inc., Superior Court, judicial district of Hartford, Docket No. CV 03 0826299 (March 10, 2004, Sheldon, J.) (36 Conn. L. Rptr. 673, 674).

FN12. Pursuant to Practice Book Sec. 10–14(a), proof of service was made by a certificate of the plaintiff's attorney that was filed with the court on May 17, 2011..  FN12. Pursuant to Practice Book Sec. 10–14(a), proof of service was made by a certificate of the plaintiff's attorney that was filed with the court on May 17, 2011.

FN13. Practice Book Sec. 10–30 provides, in pertinent part:  “Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.”.  FN13. Practice Book Sec. 10–30 provides, in pertinent part:  “Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.”

FN14. Practice Book Sec. 10–32 provides, in pertinent part:  “Any claim of lack of jurisdiction over the person ․ is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10–6 and 10–7 and within the time provided by Section 10–30.”.  FN14. Practice Book Sec. 10–32 provides, in pertinent part:  “Any claim of lack of jurisdiction over the person ․ is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10–6 and 10–7 and within the time provided by Section 10–30.”

Trombley, Wilson J., J.