Rachele Thomas et al. v. Rocco DiBianco (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 112)

FACTS AND PROCEDURAL HISTORY

The plaintiff, Rachele Thomas, commenced this action by writ, summons and complaint against the defendant Rocco DiBianco on May 4, 2013, with a return date of June 11, 2013.   The complaint was returned to court on May 14, 2013.   The complaint is a two-count complaint and alleges the following.   On August 5, 2011, the plaintiff, Rachele Thomas was operating her vehicle in a westerly direction on Edwards Street in New Haven, Connecticut approaching a point approximately fifty feet westerly of the intersection of Edwards Street and Whitney Avenue.   The plaintiff, Louise Thorpe was a passenger in the motor vehicle operated by Thomas.   Thomas brought her vehicle to a stop behind an automobile that had been brought to a stop in response to a red light signal.   At the same time, the defendant was operating his motor vehicle in a westerly direction on Edwards Street behind the plaintiffs' automobile approaching the intersection, when the defendant crashed his motor vehicle into the rear of the stationary vehicle occupied by the plaintiffs.   The force of the collision propelled the plaintiffs' vehicle forward, causing it to strike the rear of the motor vehicle that was stopped ahead of the plaintiffs on the roadway.   The defendant's motor vehicle struck the rear of the plaintiffs' vehicle a second time, causing it to again collide with the rear of the vehicle stopped ahead of the plaintiffs' vehicle.   Count one is as to Rachele Thomas and alleges a number of ways in which the defendant was negligent, and further alleges that the plaintiff, Rachele Thomas sustained injuries as a result of the defendant's negligence.   Count two is as to plaintiff Louise Thorpe and realleges paragraphs one through six of count one which sets forth the number of ways the defendant was negligent.   Count two further alleges that as a result of the defendant's negligence, the plaintiff, Louise Thorpe sustained injuries.

The defendant filed an appearance in this case on June 13, 2013.   On July 18, 2013, the defendant, DiBianco filed an answer with special defenses and a counterclaim for apportionment against the plaintiff, Rachele Thomas, requesting an allocation of liability as to the plaintiff/apportionment defendant, Rachele Thomas, for the percentage of her negligence attributed to proximately causing plaintiff Louise Thorpe's alleged damages.   On August 9, 2013, the plaintiff/apportionment defendant filed a motion to strike the counterclaim for apportionment, stating that because the plaintiff/apportionment defendant is a party to the action, the counterclaim does not comport with the requirements of § 52–102b.   More specifically, the plaintiff/apportionment defendant, Thomas argues that, because she is already a plaintiff in this action, the language of § 52–102b precludes her from being named as an apportionment defendant in the apportionment action filed by the defendant.   The defendant filed an objection to the motion to strike and, citing Superior Court authority argued he is entitled to bring an apportionment action against Thomas because although both plaintiffs, Thomas and Thorpe decided to sue the defendant, DiBianco, the case is functionally two separate cases because the plaintiff driver, Thomas, is not a party to the plaintiff passenger, Thorpe's negligence claim against him.   Therefore, DiBianco argues, General Statutes § 52–102b does not prohibit him from asserting a claim against the plaintiff/apportionment defendant, Thomas.

On September 6, 2013, the court, Frechette, J., denied the plaintiff/apportionment defendant's motion to strike citing Prete v. Borrelli, Superior Court, judicial district of New Haven at New Have, Docket No. CV–11 6022696 (May 22, 2012, Gold, J.) [54 Conn. L. Rptr. 88].   In Prete, Judge Gold, in a well-reasoned opinion, concluded that “[h]aving undertaken its own assessment of the respective merit of the majority and minority positions, this court concludes that the so-called “minority view” is not only better reasoned and more practical, it seems to reflect the more modern approach.   As this court sees it, § 52–102b does not say, and was not intended to say, that a defendant is barred from filing an apportionment complaint against an existing party.   Rather than serving to restrict a defendant's right to seek apportionment, the statute's purpose is to broaden that right by authorizing apportionment to be sought against non-parties as well.   Based upon this interpretation of the language of the statute, the plaintiffs' motion to strike the apportionment action in this case must be denied.

“Indeed, even if § 52–102b were to be interpreted to prohibit apportionment against existing parties, this statute still would not act as a bar to the apportionment action filed here because Prete is not properly considered a ‘party’ in the action brought by the co-plaintiff, Ryan. In the court's view, each of the plaintiffs here—Prete and Ryan—'has essentially asserted a separate negligence claim against the defendants ․ As a result, this case is functionally two cases ․' consisting of Prete versus Ginnetti Petroleum and Borrelli, on the one hand, and Ryan versus Ginnetti Petroleum and Borelli, on the other.

“In this regard, the court's reasoning in Sharif v. Peck is instructive.   As in the case here, Sharif v. Peck involved a two-car accident in which the driver, Sharif, and her passenger, Toney, together brought a negligence action against Peck, the driver of another car.   Thereafter, Peck sought to commence an apportionment complaint against Sharif in the action brought by Toney.   Employing what he called a “functional analysis,”

If Sharif and Toney had retained separate counsel and filed their respective actions independently, there could be no question that Peck could file an apportionment complaint against Sharif in the action brought by Toney.   Sharif would not be a party to that action.   Functionally, it is no different here.   Although Sharif and Toney may have their cases tried together, the jury must be instructed to consider the claims of the two plaintiffs separately.   Sharif is not a ‘party’ to Toney's claim.   Tone's [sic] claim must rise or fall on its own merits.   If Toney prevails in his claim, Peck has every right to have the jury consider the contribution of Sharif's negligence, in [sic] any, in causing Toney's injuries.

“The court here finds the ‘functional analysis' of Sharif v. Peck to be persuasive.   In the present case, Prete simply cannot be characterized as a party to Ryan's separate cause of action.   Therefore, the defendants' apportionment action cannot be said to run afoul of the plain language of § 52–102b.   Having filed a special defense of contributory negligence against Prete with respect to his claim against them, the defendants now also seek through an apportionment action to offset Ryan's damages (sustained while Prete's passenger) with Prete's contributory negligence.   In the court's opinion, this is an appropriate and statutorily permissible use of an apportionment action.  ‘Section 52–102b should not serve as a barrier keeping the defendants from seeking an apportionment of liability [under these circumstances].’  ․ To the contrary, given that ‘[t]he purpose of § 52–102b is to effectuate a sharing of the responsibility between potential tortfeasors,’ ․ the court concludes that the apportionment action in this case is necessary so that the statute's purpose is not thwarted and the defendants are not left without adequate legal recourse.

“For the foregoing reasons, the court finds that § 52–102b does not bar the defendants from asserting an apportionment claim against the plaintiff Prete, as driver, with respect to the negligence claims asserted by plaintiff Ryan, as Prete's passenger.   Accordingly, the motion to strike the apportionment complaint is denied.”  (Citations omitted.)  Prete, supra, Superior Court, judicial district of New Haven at New Haven.

The plaintiff/apportionment defendant, Thomas, now files a motion to dismiss the defendant/apportionment plaintiff DiBianco's counterclaim for lack of subject matter jurisdiction.   The apportionment defendant, Thomas argues that the apportionment plaintiff DiBianco failed to serve her with a writ, summons and complaint within 120 days of the return date specified in the original complaint and failed to pay a court entry fee as required pursuant to General Statutes § 52–102b.   The apportionment plaintiff, DiBianco has filed an objection to the motion to dismiss, which is titled “Objection to Apportionment Defendant's Motion to Strike.”   In his objection, DiBianco argues that the apportionment defendant's motion to dismiss is untimely, and is essentially a second attempt to get the counterclaim stricken from the record.   In response to the apportionment defendant's claim that service was improper, DiBianco argues that § 52–102b refers to service upon a person that is not yet a party to the action, and further clarifies that notice and service is not required for persons that were previously a party to the action, which would also apply to parties in the action.   With respect to the apportionment defendant Thomas' claim that no entry fee was paid in accordance with the statute in existence at the time of the filing of this action, DiBianco argues that he filed an answer and special defenses with a counterclaim for apportionment in accordance with General Statutes § 52–572h, in a timely manner, against the apportionment defendant, a party to this action, and no fee for said counterclaim for apportionment was required.   DiBianco further argues that the apportionment defendant's motion to dismiss is frivolous and harassing and sanctions should be imposed upon her for filing it.

The court heard argument on the motion to dismiss and objection at short calendar on January 13, 2014.

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).   The motion “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 (2011).  “The grounds which may be asserted in this motion are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.  “A ruling on a motion to dismiss is neither a ruling on the merits of the action ․ nor a test of whether the complaint states a cause of action ․ [Rather,] [m]otions to dismiss are granted solely on jurisdictional grounds.”  (Citations omitted.)  Discover Leasing, Inc. v. Murphy, 33 Conn.App. 303, 306–07, 635 A.2d 843 (1993).

“[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).

In the present case, the apportionment defendant Thomas argues that, pursuant to § 52–102b(a), which governs the addition of persons as defendants for the apportionment of liability, the apportionment plaintiff DiBianco's counterclaim should have been served on her within 120 days of the return date in the plaintiff's original complaint and since it was not, the court lacks subject matter jurisdiction.

First, the court, Frechette, J., has already determined that the apportionment plaintiff, DiBianco's counterclaim is proper and denied the apportionment defendant's motion to strike.   In its motion before Judge Frechette, the apportionment defendant raised the exact same argument regarding lack of service that it now raises before this court.   Relying on Prete, supra, Superior Court, judicial district of New Haven, Judge Frechette denied the apportionment defendant's motion to strike, thus holding that the apportionment counterclaim against an existing party, namely, the plaintiff/apportionment defendant, Rachele Thomas was proper.   Thus, based on Judge Frechette's ruling the counterclaim remains as pled.

Second, even if the court were to consider the merits of the apportionment defendant's motion to dismiss on insufficiency of service grounds, the apportionment defendant has waived any challenge to the court's personal jurisdiction over her.   In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 14, 848 A.2d 418 (2004), our Supreme Court held that the 120–day time limitation in § 52–102b(a) is mandatory, not discretionary.   Additionally, the court held that “noncompliance with § 52–102b implicates a court's personal jurisdiction ․” Id. “Because a failure to comply with the 120 day limit of § 52–102b(a) constitutes a defect in service of process, the failure deprives the court of personal jurisdiction over the apportionment defendant.”  Pedro v. Miller, 281 Conn. 112, 117, 914 A.2d 524 (2007).   Thus, noncompliance with the 120–day requirement implicates the court's personal jurisdiction and not subject matter jurisdiction.   As such, jurisdiction can be waived.  Practice Book § 10–32 provides:  “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10–6 and 10–7 ¹ and within the time provided by Section 10–30.”   Practice Book § 10–30 provides, in relevant 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.”   Here, the apportionment plaintiff/defendant filed its answer with special defenses and apportionment counterclaim against the apportionment defendant, Rachele Thomas on July 18, 2013.   The apportionment defendant, Rachele Thomas filed an appearance on August 5, 2013.   Instead of filing a motion to dismiss, the apportionment defendant, on August 9, 2013, filed a motion to strike which was denied by Judge Frechette.   The apportionment defendant did not file her motion to dismiss until December 18, 2013, more than four months after the filing of her appearance as a counterclaim defendant.   Under all the circumstances, the apportionment defendant was therefore obligated to file her motion within thirty days of the filing of her appearance.   Having failed to do so, the apportionment defendant is deemed to have submitted to the jurisdiction of the court and, accordingly, has waived her right to object to the filing of the apportionment counterclaim on grounds that the apportionment plaintiff failed to serve the apportionment counterclaim in accordance with § 52–102b(a).   Thus, the motion to dismiss on this ground is denied.

The apportionment defendant argues that “at the time this ‘counterclaim for apportionment’ was brought there was a requirement that persons filing an apportionment complaint pay a court entry fee.   No such fee has ever been paid for the filing of this ‘counterclaim for apportionment.’  “ (Apportionment Def.'s Memorandum in Support of Motion to Dismiss, p. 3.) The apportionment defendant argues that this is a requirement that implicates the court's subject matter jurisdiction which cannot be waived.   The apportionment defendant does not fully brief its argument regarding the requirement of a court entry fee, and cites absolutely no legal authority to support its assertion that as of July 18, 2013, the date on which the counterclaim was filed, a court entry fee was required.   In addition, § 52–102b(b) revised to January 1, 2013, states in relevant part that “[t]he apportionment complaint shall be equivalent in all aspects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed.”  The court's research did not reveal any recent public acts amending the statute to exclude this language.   In addition, the legislative history contained in the annotations to the statute, do not reflect any recent amendments which excludes this language.   The apportionment defendant does not provide the court with a citation or reference to specific language in the existing statute, or an amendment to the statute, which supports her argument that payment of a court entry fee was required at the time the apportionment counterclaim was filed.   It is well settled that the trial court is “not required to review issues that have been improperly presented ․ through an inadequate brief ․ Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ․ Nevertheless, while the plaintiff has failed to analyze in depth the issues presented, she has directed our attention to the plain language of § 17a–101 as a source for the claimed duty ․” Ward v. Greene, 267 Conn. 539, 839 A.2d 1259 (2004).   In the present case, the apportionment defendant failed to adequately brief her assertion that § 52–102b required the payment of a court entry fee at the time the apportionment counterclaim was filed.   Furthermore, the apportionment defendant does not direct the court's attention to a statute or an amendment that requires the payment of a fee.   The court therefore considers this claim made by the apportionment defendant abandoned.   Likewise, for the foregoing reasons, the apportionment defendant's motion to dismiss on this ground is denied.

CONCLUSION

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

Wilson, J.

FOOTNOTES

FN1. Practice Book § 10–6 provides in relevant part:  “The order of pleading shall be as follows:  (1) The plaintiff's complaint.  (2) The defendant's motion to dismiss the complaint.  (3) The defendant's request to revise the complaint.  (4) The defendant's motion to strike the complaint ․”Practice Book § 10–7 provides that “[i]n all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the proceeding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.”.  FN1. Practice Book § 10–6 provides in relevant part:  “The order of pleading shall be as follows:  (1) The plaintiff's complaint.  (2) The defendant's motion to dismiss the complaint.  (3) The defendant's request to revise the complaint.  (4) The defendant's motion to strike the complaint ․”Practice Book § 10–7 provides that “[i]n all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the proceeding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.”

Wilson, Robin L., J.