Diana Gonzalez v. Connecticut Natural Gas Corporation (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS APPORTIONMENT COMPLAINT

The plaintiff, Diana Gonzalez, sustained an injury after stepping into a hole in the street allegedly created by the defendant, Connecticut Natural Gas (“the gas company”).   The plaintiff filed the original complaint against the gas company on April 10, 2012, with a return date of April 24, 2012.   The gas company filed an appearance on April 12, 2012, and served the first apportionment complaint (docket entry # 104) on the first apportionment defendant, Trafford Corporation (“Trafford”), on July 2, 2012, with a return date of July 31, 2012.   Trafford filed an appearance on August 10, 2012.   Trafford subsequently served the second apportionment complaint (docket entry # 106) on the second apportionment defendant, DeLeon Funeral Home, Inc. (“DeLeon”), on November 20, 2012, with a return date of December 18, 2012.   Both apportionment complaints were filed pursuant to General Statutes § 52–102b.¹  On January 17, 2013, DeLeon filed the present motion to dismiss (docket entry # 109).

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.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2012).   Section 52–120b “implicates personal jurisdiction rather than subject matter jurisdiction.”   Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 33, 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 that is found lacking ․ is jurisdiction over the person ․” (Citations omitted.)  Connor v. Statewide Grievance Committee, 260 Conn. 435, 442, 797 A.2d 1081 (2002).  “Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss.”   (Internal quotation marks omitted.)  Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).

DeLeon moves to dismiss on the ground that Trafford failed to serve its apportionment complaint within 120 days of the return date of the plaintiff's original complaint, as required by § 52–102b.   Trafford essentially argues that it is entitled to an equitable exception to the 120–day deadline because it only had a short period of time after it was served with the first apportionment complaint to be able to serve DeLeon.   For the reasons that follow, the court agrees with DeLeon and finds that Trafford is not entitled to an equitable exception to § 52–102b.   Accordingly, the motion to dismiss Trafford's apportionment complaint is granted.

There are two Supreme Court decisions involving the time limitation set forth in § 52–102b for service of an apportionment complaint both of which inform and guide the resolution of the issue before the court.   In Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 21, the Court found that the requirements of § 52–102b were mandatory:  “[W]e 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 ․ Thus, it is incontrovertible that, if a defendant seeks to apportion liability, he must comply with § 52–102b(a).”  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)

Although § 52–102b must be complied with at law, in Pedro v. Miller, 281 Conn. 112, 118, 914 A.2d 524 (2007), the Supreme Court acknowledged that there are equitable exceptions to the rule:  “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.)   In addition to waiver and consent, the court identified a third possible equitable exception:  “The issue before us is whether the fact that the legal basis for apportioning liability arose only after the 120–day limit already expired constitutes equitable reason justifying excusal from compliance with the limit.   We conclude that it does.”  Id., 118–19.   The range of permissible equitable exceptions is not limited to the three instances identified by the Court.  Id., 120–21.

While none of the equitable exceptions specifically identified by the Supreme Court apply, other Superior Court decisions provide some insight into other circumstances that might justify an equitable exception.   In Maggio v. Aames Funding Corp., Superior Court, judicial district of New Haven, Docket No. CV 065000907S (April 11, 2008, Gilligan, J.), the original plaintiff filed a second amended complaint against two new defendants with a return date more than a year after the return date of the original complaint.   One of the added defendants subsequently served an apportionment complaint within 120 days of the return date of the second amended complaint seeking to add three additional apportionment defendants.   The court stated:  “[The apportionment plaintiff] served its apportionment complaint within 120 days of the only complaint in which it was named a party defendant.   While this was eighteen months after [the plaintiff's] original complaint was returned to court, no legal basis for [the apportionment plaintiff] to seek apportionment existed at the time that one hundred twenty days following the return date of the original complaint had expired for the simple reason that [the apportionment plaintiff] was not made a party until [the plaintiff] cited in [the apportionment plaintiff] into the case in September 2007.   Until it was made a party to the suit, [the apportionment plaintiff] had no reason to contemplate, nor standing to seek, apportionment of liability.   To insist, as [the apportionment defendants] argue, that [the apportionment plaintiff] was required to commence an apportionment action within the one hundred twenty-day limitation in a lawsuit that it may not have even been aware of, would offend the most fundamental principles of equity ․ The same impossibility to serve an apportionment complaint that the Supreme Court found in Pedro can be found in the present case.”  Id.

In Kruger v. Q Sono, LLC, Superior Court, judicial district of Stamford at Norwalk, Docket No. FST CV075005233 (March 26, 2009, Adams, J.) [47 Conn. L. Rptr. 434], the court faced a situation with a chain of apportionment plaintiffs and defendants.   The first apportionment defendant filed a second apportionment complaint against the second apportionment defendant, who effectively waived its right to contest personal jurisdiction by not raising the issue that the second apportionment complaint was served beyond the 120–day deadline.   The second apportionment defendant then served a third apportionment defendant with the third apportionment complaint.   The court permitted the third apportionment complaint under the equitable exception, stating:  “In this case the legal basis for [the second apportionment defendant] did not arise until [first apportionment defendant's] apportionment complaint had been served on [the second apportionment defendant] in July 2008, a time well beyond the 120 days from October 16, 2007.   In these circumstances Pedro v. Miller teaches that to enforce the 120–day limitation against [the second apportionment defendant] would be highly inequitable and compliance therewith may be excused.”   The court further noted that “[the third apportionment defendant's] contention that it should not be made an apportionment defendant because [the second apportionment defendant] waived its right to seek to dismiss [the second] apportionment complaint [is] an interesting, but ultimately unpersuasive, argument in light of Pedro v. Miller.”   This case highlights that a too liberal application of the equitable exception may deprive a third generation apportionment defendant of the benefit of the limitations period contain in § 52–102b based on another party's knowing or unknowing waiver.

Another case suggests that the holding in Pedro was not limited to events occurring after the 120–day period:  “[T]his court can find no reason to differentiate between ‘equitable considerations' that arise before or after the expiration of the 120–day time limit, regardless of whether the legal basis for apportioning liability arose before or after the expiration of the 120–day time limit.”   Mills v. Solution, LLC, Superior Court, judicial district of Fairfield, Docket No. CV075009361S (September 18, 2008, Arnold, J.) [46 Conn. L. Rptr. 434].   Nonetheless, the court offered words of caution:  “Our courts could be confronted by a myriad of factual scenarios presented to for ‘equitable consideration,’ as to why litigants could not, and did not, comply with the 120–day time limit.   Ideally, any decision to expand the time limits in § 52–102b or to provide for exceptions to the 120–day time limit are best left to the legislative branch.”  Id. These concerns were outweighed by the apportionment plaintiff's demonstration of its vigorous efforts at identifying and serving the apportionment defendant within the statutory period and the events outside of its control that frustrated those efforts.  Id.

Finally, Trafford relies heavily on a federal district court decision for the proposition that the 120–day period should be measured from the return date of the complaint that made an apportionment plaintiff a party to the action.   In Abbate v. Northland AEG, LLC, 788 F.Sup.2d 50 (2011), the court explained:  “The logic of Pedro 's equitable exception is that a person should not be held responsible for meeting deadlines in a pending court case in which they are not yet a party.   To state the proposition is to demonstrate its service to equity.   By the same logic, once a person is made a party to the lawsuit, they are then responsible for abiding by the requirements of the suit, including filing any appropriate apportionment complaints within the 120–day deadline of § 52–102b.   These considerations lead the Court to conclude that it was [the apportionment plaintiff's] complaint, not [the plaintiff's complaint], that first gave [the apportionment defendant/second apportionment plaintiff] notice of his potential liability for [the plaintiff's] fall, and the resulting advisability of filing an apportionment complaint to protect his own interests.” ²  Id., 54.

None of the above cases involved facts wholly consistent with the facts of this case, thus this court must perform its own equitable analysis.  “The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court ․” Allstate Ins. Co. v. Palumbo, 109 Conn.App. 731, 736, 952 A.2d 1235 (2008).  “[T]he trial court may examine all relevant factors to ensure that complete justice is done ․ The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.”  (Internal quotation marks omitted.)  Sunset Mortgage v. Agolio, 109 Conn.App. 198, 203, 952 A.2d 65 (2008).  “Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law ․ Judicial discretion is always a legal discretion, exercised according to the recognized principles of equity ․ The trial court's discretion imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice.”  (Citation omitted;  emphasis added;  internal quotation marks omitted.)  Rodriguez v. Ancona, 88 Conn.App. 193, 201–02, 868 A.2d 807 (2005).

In consideration of the circumstances and law, Trafford is not entitled to an exception to the mandatory requirement of complying with the limitations period set forth in § 52–102b.   In contrast to the apportionment defendants in Pedro, Maggio, Kruger and Abbate, Trafford was brought into the action well before the statutory deadline.   While Trafford argues that it only had “twelve days to identify potential parties to join as apportionment defendants,” in truth it was made a party to the action when it was served with the first apportionment complaint on July 2, 2012.³  Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991) (“In Connecticut, an action is commenced on the date of service of the writ upon the defendant”).   With the 120–day deadline on August 22, 2012, Trafford had 51 days from the time it received notice of its potential liability to investigate and serve a complaint against potential apportionment defendants.   Whereas many of the parties in the above-referenced cases had no opportunity to serve an apportionment complaint before the deadline, Trafford had ample time to determine whether it should file a complaint.   Unlike the party in Mills v. Solution, LLC, Trafford has not shown, nor has it attempted to show, any hardship or reason that would have prevented it from serving DeLeon with an apportionment complaint before the statutory deadline or the reasonable efforts it made to try and comply with the deadline.   Furthermore, DeLeon is not a party that would have been difficult to uncover as a potential apportionment defendant as it is the property owner of the land upon which the alleged source of injury occured.   Trafford had been contracted to provide services on that land, and therefore would have been aware of or at least able to easily discover DeLeon as the property owners.   Nor is this a “near miss” scenario where Trafford barely failed to meet the deadline.   Trafford did not serve DeLeon until November 20, which was 210 days after the original complaint's return date and approximately three months after the statutory deadline had passed.

A court may not bypass a legislative decision to create a definite time limit on the filing of apportionment complaints without a clear showing of equitable reasons to do so.   The General Assembly decided to promote certainty and predictability in tort actions by limiting the time period for defendants to bring in other parties that could possibly be liable.   Such a mandatory requirement cannot be ignored simply because Trafford had a little less than two months to name DeLeon as an apportionment defendant.   The prejudice that would befall the plaintiff in having pretrial procedures extended by months cannot be allowed absent Trafford's demonstration of inequitable circumstances.   This case is one of the “myriad of factual scenarios” that the court in Mills v. Solution, LLC, warned would be presented for “equitable consideration,” if courts began to too readily create equitable exceptions to § 52–102b.   The simple fact that Trafford cannot seek apportionment from a party that may have been a proper apportionment defendant is not enough to override the restrictions of § 52–102b.   To hold otherwise would eviscerate the requirements of that statute.

CONCLUSION

For all the foregoing reasons, DeLeon's motion to dismiss Trafford's apportionment complaint is hereby granted.

Peck, J.

FOOTNOTES

FN1. 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 writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred and twenty days of the return date specified in the plaintiff's original complaint ․”.  FN1. 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 writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred and twenty days of the return date specified in the plaintiff's original complaint ․”

FN2. Trafford's counsel miscited the first sentence of this quote as coming from the Pedro case itself, rather than a district court opinion interpreting the decision, by omitting a citation to Abbate, including a citation to Pedro and replacing the mention of Pedro in the quotation with “[a parties].”   While not only grammatically incorrect, such a misrepresentation of legal authority arguably constitutes a violation of Rule 3.3(a)(1) of the Connecticut Rules of Professional Conduct, which prohibits a lawyer from knowingly making a false statement of fact or law to a tribunal..  FN2. Trafford's counsel miscited the first sentence of this quote as coming from the Pedro case itself, rather than a district court opinion interpreting the decision, by omitting a citation to Abbate, including a citation to Pedro and replacing the mention of Pedro in the quotation with “[a parties].”   While not only grammatically incorrect, such a misrepresentation of legal authority arguably constitutes a violation of Rule 3.3(a)(1) of the Connecticut Rules of Professional Conduct, which prohibits a lawyer from knowingly making a false statement of fact or law to a tribunal.

FN3. It is worth noting that this twelve-day period was calculated from Trafford's appearance on August 10, 2012, which was eight days past the August 2, 2012, deadline for filing an appearance.   See Practice Book § 3–2(a) (“Except where otherwise prescribed herein or by statute, an appearance for a party in a civil or family case should be filed on or before the second day following the return day ․”)..  FN3. It is worth noting that this twelve-day period was calculated from Trafford's appearance on August 10, 2012, which was eight days past the August 2, 2012, deadline for filing an appearance.   See Practice Book § 3–2(a) (“Except where otherwise prescribed herein or by statute, an appearance for a party in a civil or family case should be filed on or before the second day following the return day ․”).

Peck, A. Susan, J.