Catherine Strother v. Mall, Inc. (2013)

MEMORANDUM OF DECISION ON APPORTIONMENT DEFENDANT REGAN ENTERPRISES, LLC'S, MOTION TO DISMISS (# 169)

The apportionment defendant, Regan Enterprises, LLC (movant), has moved to dismiss counts two and four of the second amended complaint of the plaintiff, Catherine Strother, on the ground that the plaintiff failed to assert direct claims against the apportionment defendant within sixty days of the apportionment complaint's return date as is required pursuant to the apportionment statute, General Statutes § 52–102b(d).

FACTS

By complaint dated December 21, 2011, the plaintiff sued the defendant, Mall, Inc., for injuries alleged to have been sustained on December 29, 2009, when she fell at the premises of Mall, Inc., due to ice and slippery conditions.   On April 27, 2012, Mall, Inc., pursuant to § 52–102b(a), filed an apportionment complaint against the movant, which alleges that, if any negligence caused the plaintiff's December 29, 2009 fall, it was the negligence of the movant because the movant was responsible for removal of snow and/or ice from the premises.¹  The return date on the apportionment complaint was May 8, 2012.   The return of service filed with the apportionment complaint indicates that the apportionment complaint and the related summons were served in hand on the movant's agent for service on April 25, 2012.

On November 8, 2012, the plaintiff filed a request for leave to amend her complaint and a second amended complaint, which included claims for injuries alleged to have been suffered on January 20, 2012, in a second fall at the premises of Mall, Inc. In counts two and four of her second amended complaint, the plaintiff for the first time made direct claims against the movant.   Counts two and four allege, respectively, that the movant's negligence caused the plaintiff's December 29, 2009, and January 20, 2012, falls at the premises.   The movant had not appeared in this case on November 8, 2012.   The plaintiff's counsel certified service on that date of both the request for leave to amend and the second amended complaint by certified mail on the same agent of the movant who was served with the apportionment complaint.

Mall, Inc., has filed no apportionment complaint concerning the plaintiff's alleged January 20, 2012, fall.

The movant first appeared, by Milano & Wanat, on April 10, 2013.   The subject motion was filed on May 23, 2013.   The plaintiff filed a brief in opposition to the motion on May 30, 2013.   The motion was argued on June 18, 2013.

DISCUSSION

The plaintiff's original complaint concerned only the December 29, 2009 incident.   Pursuant to § 52–102b(d),² the deadline for the plaintiff to file a direct claim against the movant “arising out of the ․ occurrence that is the subject of the original complaint,” i.e., the plaintiff's 2009 fall, was July 7, 2012, the sixtieth day after May 8, 2012, the apportionment complaint return date.   Because count two of the second amended complaint is a direct action against the movant arising out of the subject of the original complaint, i.e., the plaintiff's December 29, 2009, fall, and was filed four months after the § 52–102b(d) deadline for such direct actions, count two was subject to timely challenge by the movant.   See Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 33, 848 A.2d 418 (2004) (§ 52–102b(a) 120–day deadline to file apportionment complaint implicates personal, not subject matter, jurisdiction);  Carpenter v. Law Office of Dressler & Associates, LLC, 85 Conn.App. 655, 660–61, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004) (Lostritto found § 52–102b—not just § 52–102b(a)—time requirements mandatory).

After the movant appeared, by Milano & Wanat, on April 10, 2013, the movant had thirty days to move to dismiss count two of the second amended complaint for lack of personal jurisdiction.   See Practice Book § 10–30;  see also Carpenter v. Law Office of Dressler & Associates, LLC, supra, 85 Conn.App. 661–62 (§ 52–102b time requirements implicate personal jurisdiction).   Failure to file a timely motion to dismiss waives objection to the court's personal jurisdiction.  Practice Book § 10–32;  Carpenter v. Law Office of Dressler & Associates, LLC, supra, 661.   The subject motion was filed on May 23, 2013, more than thirty days after the movant appeared.   The present motion to dismiss must be denied because it is too late.

The movant claims that the thirty-day limit on motions to dismiss starts again when new counsel appears because Practice Book § 10–30 says a defendant must contest the court's jurisdiction “by filing a motion to dismiss within thirty days of the filing of an appearance” and the appearance of movant's new counsel was filed on April 30, 2013.   That claim is rejected.   It is an unreasonable interpretation of § 10–30 for several reasons.   First, fundamentally, when the deadline for a defendant to challenge personal jurisdiction has passed, the court acquires unconditional personal jurisdiction over that defendant;  that is, jurisdiction over the defendant is not conditioned on the absence of any later objection by defendant.   Thirty days after a defendant appears, there is no lack of personal jurisdiction to which to object.   Second, if the judges of the Connecticut courts, who approve and propound the Practice Book, had meant to permit personal jurisdiction to be revisited upon the filing of ANY appearance, they could and would have said so.   Third, if, in § 10–30, “the filing of an appearance” does not refer to the defendant's first appearance but means instead “the filing of any appearance,” the waiver rule in Practice Book § 10–32 (lack of personal jurisdiction waived if not raised by “motion ․ within the time provided by Section 10–30”) would be eviscerated.   If all a defendant had to do to make a belated claim of lack of personal jurisdiction was to change attorneys, the purposes of both Practice Book §§ 10–30 and 10–32 would be thwarted.

By moving to dismiss count four, the movant implicitly argues that General Statutes § 52–102b(d) limited the plaintiff to the same sixty days to file count four as applied to count two.   If that argument had merit, the motion to dismiss would be denied as to count four for the same reasons set forth above.   However, the main reason for denying the motion to dismiss count four is that the court finds no support in § 52–102b(d), or elsewhere, for that argument.  Section 52–102b(d) only limits the time within which the plaintiff may, “[n]otwithstanding any applicable statute of limitation or repose,” ³ assert a claim against the apportionment defendant arising out of the subject of the original complaint.   The original complaint only concerned the plaintiff's December 29, 2009 fall.   Count four does not concern that occurrence.   Therefore, the present motion would fail as to count four even if the motion had been timely filed.

For the foregoing reasons, the apportionment defendant's motion to dismiss is denied.

Cole–Chu, J.

FOOTNOTES

FN1. The apportionment complaint states that the plaintiff's original complaint is attached to it, but no attachment appears in the court's file..  FN1. The apportionment complaint states that the plaintiff's original complaint is attached to it, but no attachment appears in the court's file.

FN2. General Statutes § 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.”.  FN2. General Statutes § 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.”

FN3. Count four was filed well within the applicable statute of limitation, General Statutes § 52–584 (two years from date injury is sustained or discovered).   By moving to dismiss count four, the movant implicitly contends that § 52–102b(d) limits the plaintiff's right to assert direct claims against an apportionment defendant to sixty days after the return date of the apportionment complaint, even if that means the plaintiff's time to bring such a claim is shortened compared to the time that the applicable statute of limitation would permit.   The plaintiff's opposition to the present motion does not challenge that contention.   The way the present motion was made and opposed and has been here decided makes it unnecessary to resolve that contention.   However, the court is skeptical of that contention.   Although Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 10, discussed the relationship between statutes of limitations and § 52–102b(b)—which subsection does refer to § 52–102b(d)—Lostritto does not address § 52–102b(d).  See id., 22–28.   Lostritto holds, in part, that the 120–day limit in § 52–102b(a) on filing apportionment complaints is mandatory both as to process and timing.  Id., 21 (“if a defendant seeks to apportion liability, he must comply with § 52–102b(a)” [emphasis in original] );  id., 269 Conn. 26 (“120–day time limitation is a substantive limitation on the right to apportionment”).   However, § 52–102b confers rights that did not exist at common law.  Id. Allowing plaintiffs to bring direct claims against apportionment defendants notwithstanding statutes of limitations creates a new right.  Lostritto does not hold that § 52–102b(d) takes away rights that did exist at common law, such as the right to sue for redress of grievances (subject to statutory limitations).   Nor does Carpenter v. Law Offices of Dressler & Associates, LLC, supra, 85 Conn.App. 655, so hold.  Carpenter holds that “[w]ith the apportionment complaint still in place, there was no reason that the plaintiff could not ‘plead over’ pursuant to § 52–102b(d) and assert direct claims against the apportionment defendants.”  Id., 661.   However, Carpenter did not address the question whether, once an apportionment complaint is filed, and whatever the status of the apportionment complaint may be, § 52–102b(d) restricts the time within which a plaintiff may assert an otherwise timely claim against an apportionment defendant..  FN3. Count four was filed well within the applicable statute of limitation, General Statutes § 52–584 (two years from date injury is sustained or discovered).   By moving to dismiss count four, the movant implicitly contends that § 52–102b(d) limits the plaintiff's right to assert direct claims against an apportionment defendant to sixty days after the return date of the apportionment complaint, even if that means the plaintiff's time to bring such a claim is shortened compared to the time that the applicable statute of limitation would permit.   The plaintiff's opposition to the present motion does not challenge that contention.   The way the present motion was made and opposed and has been here decided makes it unnecessary to resolve that contention.   However, the court is skeptical of that contention.   Although Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 10, discussed the relationship between statutes of limitations and § 52–102b(b)—which subsection does refer to § 52–102b(d)—Lostritto does not address § 52–102b(d).  See id., 22–28.   Lostritto holds, in part, that the 120–day limit in § 52–102b(a) on filing apportionment complaints is mandatory both as to process and timing.  Id., 21 (“if a defendant seeks to apportion liability, he must comply with § 52–102b(a)” [emphasis in original] );  id., 269 Conn. 26 (“120–day time limitation is a substantive limitation on the right to apportionment”).   However, § 52–102b confers rights that did not exist at common law.  Id. Allowing plaintiffs to bring direct claims against apportionment defendants notwithstanding statutes of limitations creates a new right.  Lostritto does not hold that § 52–102b(d) takes away rights that did exist at common law, such as the right to sue for redress of grievances (subject to statutory limitations).   Nor does Carpenter v. Law Offices of Dressler & Associates, LLC, supra, 85 Conn.App. 655, so hold.  Carpenter holds that “[w]ith the apportionment complaint still in place, there was no reason that the plaintiff could not ‘plead over’ pursuant to § 52–102b(d) and assert direct claims against the apportionment defendants.”  Id., 661.   However, Carpenter did not address the question whether, once an apportionment complaint is filed, and whatever the status of the apportionment complaint may be, § 52–102b(d) restricts the time within which a plaintiff may assert an otherwise timely claim against an apportionment defendant.

Cole–Chu, Leeland J., J.