Opinion
No. CV 03 0828210 S
July 1, 2005
MEMORANDUM OF DECISION
The defendant/counterclaim plaintiff Herbasway Laboratories, LLC's (Herbasway) motion for summary judgment as to plaintiff/counterclaim defendant Brown, Paindiris Scott, LLP's (BPS) apportionment complaint (#136) (motion), appeared before the court at short calendar on May 31, 2005. The parties presented oral argument and submitted memoranda of law, including Herbasway's supplemental memorandum of law, dated June 7, 2005.
I Background
BPS' complaint, dated August 22, 2003, alleges that it is a limited liability partnership engaged in the practice of law and that Herbasway is its former client. It claims that Herbasway, a limited liability company, owes it the sum of $144,961.73 for representation provided to Herbasway by BPS in matters relating to a departing member of Herbasway.
In its amended answer and special defense with setoff/counterclaim (#114), Herbasway denies that it is liable to BPS and, by way of setoff/counterclaim, alleges that it was named as a defendant in a pending action entitled James Zhou v. Herbasway Laboratories et al, Docket No. X03-CV-01-0512690-S, and engaged BPS to represent it herein. It further alleges that BPS was granted permission to withdraw as its attorney in that case in August 2003, and that, in March 2004, Herbasway's insurance carriers agreed to defend it effective as of November 2003, but refused to cover the cost of defense prior to that point. See setoff/counterclaim, ¶ 6. Herbasway claims that BPS' representation as to James Zhou v. Herbasway Laboratories et al, supra, fell below the applicable standard of care, including that BPS failed to investigate the existence of or pursue any insurance coverage available to Herbasway regarding that action. See setoff/counterclaim, ¶ 7. It claims that BPS's breach caused Herbasway monetary damages, including the legal fees and costs paid to BPS regarding that action. See setoff/counterclaim, ¶ 8.
In addition to denying liability as to the setoff/counterclaim in its answer (#116), BPS filed an apportionment complaint (#119), in which it alleges that another law firm, apportionment defendant Carmody Torrance, LLP "coincidentally" represented Herbasway. See apportionment complaint, ¶ 2. BPS claims that, if there was negligence with respect to BPS' conduct, which BPS denies, such negligence should be apportioned to Carmody Torrance, LLP, as it was representing Herbasway coincidentally with BPS. See apportionment complaint, ¶ 4. BPS claims that Carmody Torrance, LLP is or may be liable for a proportionate share of Herbasway's damages pursuant to General Statute § 52-102b. See apportionment complaint, ¶ 6.
Section 52-102b(a) provides, in pertinent 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 day specified in the plaintiff's original complaint . . . 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."
In its motion, Herbasway contends that summary judgment is warranted as to the apportionment complaint because a legal malpractice claim seeking economic damages, such as is asserted in its setoff/counterclaim, is not a claim resulting from personal injury or damage to property, to which the principles of apportionment are limited by General Statute § 52-572h(c). In response, BPS asserts that (1) a motion for summary judgment which challenges the court's subject matter jurisdiction is an inappropriate procedural tool by which to address the issue; and (2) notwithstanding recent Superior Court decisions finding that § 52-102(b) does not permit apportionment complaints in legal malpractice matters, Somma v. Gracey, 15 Conn.App. 371, 544 A.2d 668 (1988) stands for the proposition that legal malpractice actions should be treated as are other negligence actions under § 52-572h.
Section 52-572h(c) provides, "[i]n a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, 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 except as provided in subsection (g) of this section." Subsection (g), which concerns uncollectible damages, is not pertinent here.
II. Discussion A Procedure
In support of its contention that a motion for summary judgment is not the right procedural vehicle by which to raise an issue of subject matter jurisdiction, BPS cites Booth v. Flanagan, 19 Conn.App. 413, 414-15, 562 A2d 592 (1989), where the Appellate Court reversed the trial court's sua sponte decision granting summary judgment, in the absence of a written motion, and in the absence of facts established by way of affidavits, depositions, or other documentary proof. The court noted also that "the proper way to challenge subject matter jurisdiction is by a motion to dismiss, rather than a motion for summary judgment." Id., 415.
Nevertheless, our Supreme Court has stated, "[i]n any event, jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here. Practice Book 143 [now § 10-31], 145 [now § 10-33] . . . Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon." (Citations omitted.) Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985). See Gagnon v. Planning Commission, 222 Conn. 294, 297, 608 A.2d 1181 (1992) (same). Accordingly, the court treats Herbasway's motion as a motion to dismiss. See D'Eramo v. Smith, 273 Conn. 610, 615 n. 6, 872 A.2d 408 (2005).
Practice Book § 10-31 provides, in pertinent part, "(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . ."
Practice Book § 10-33 provides, "[a]ny claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action."
In the procedural portion of its argument, BPS also contends, "the instant motion must fail because it is the improper attempt to challenge subject matter jurisdiction of this court pursuant to section 52-102b. See also Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10 [,848 A.2d 418] (2004)." See BPS' memorandum of law, p. 3.
The court is unpersuaded. "[J]urisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 31.
Our Appellate Court recently explained that, in Lostritto v. Community Action Agency of New Haven, Inc., supra, although the Supreme Court "found that the time requirements of § 52-102b were mandatory, it also held that those requirements implicated only personal jurisdiction. Id. [269 Conn.], 31-35 . . . [T]he court concluded that the statute, by its express terms, was a service provision, implicating personal rather than subject matter jurisdiction. Id. [269 Conn.], 33." (Citations omitted and internal quotation marks omitted.) Carpenter v. Law Offices Of Dressler Associates, LLC, 85 Conn.App. 655, 659-60, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004). The question of whether § 52-572h(c)'s limits on apportionment complaints requires dismissal of the apportionment complaint here raises an issue of subject matter jurisdiction. See Carpenter v. Law Offices Of Dressler Associates, LLC, supra, 85 Conn.App. 660. In accordance with our Supreme Court's direction, this court must resolve that issue, regardless of the procedural form of Herbasway's motion. See Cahill v. Board of Education, supra, 198 Conn. 238.
B Subject Matter Jurisdiction
"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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991).
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . ." Lagassey v. State, 268 Conn. 723, 736-37, 846 A.2d 831 (2004).
As noted, in support of its position that the court has the subject matter jurisdiction to consider its apportionment complaint, BPS relies on Somma v. Gracey, supra, 15 Conn.App. 378 where our Appellate Court stated, "[i]n situations where the claim of malpractice sounds in negligence; . . . the defense of comparative negligence should be made available. Our own statute dealing with comparative negligence, General Statutes 52-572h(b), provides that in causes of action based on negligence `[a]ny economic or noneconomic damages allowed shall be diminished in proportion of the percentage of negligence attributable to the person recovering . . .' We see no basis for distinguishing between actions for legal malpractice and other claims sounding in negligence."
As the court in Whitaker v. Erdos Maddox, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV00 037 18 96 S (November 14, 2000, Skolnick, J.) stated, "[a]lthough in Somma v. Gracey, supra, 15 Conn.App. 371, the Appellate Court concluded that the defense of comparative or contributory negligence is available in an action for legal malpractice, this conclusion was based on circumstances that are different from the present case. The Somma case involved a legal malpractice action in which the plaintiff-client alleged that the defendant-attorneys were negligent in connection with the sale of the plaintiff's business because they failed to adequately advise the plaintiff, did not conduct an investigation or obtain financial information about the buyers. Id., 371. The defendants asserted a special defense of comparative negligence against the plaintiff. In contrast, the present case involves a claim for apportionment pursuant to General Statutes §§ 52-102b and 52-572h."
Our Appellate Court recently emphasized this crucial distinction. "The jurisdiction a trial court has over an apportionment claim differs from its jurisdiction over direct claims asserted by a plaintiff against an apportionment defendant. Here, the court lacked subject matter jurisdiction over the apportionment action because § 52-102b(a) limits apportionment to `civil action[s] to which [General Statutes §] 52-572h applies . . .' Section 52-572h(b) applies to `causes of action based on negligence . . . to recover damages resulting from personal injury, wrongful death or damage to property . . .' The court had no power to adjudicate the apportionment complaint based on a legal malpractice action." (Emphasis in original.) Carpenter v. Law Offices Of Dressler Associates, LLC, supra, 85 Conn.App. 660.
In addition, as noted above, Section 52-572h(c) contains similar language, limiting § 52-572h to negligence actions which seek to recover damages resulting from personal injury, wrongful death, or damage to property. Here, there is no contention that the apportionment complaint is addressed to damages for wrongful death, personal injury or damage to property. Rather, Herbasway's set off/counterclaim seeks to recover for economic loss, its costs of defense in the Zhou v. Herbasway matter.
"The statute plainly states that it applies to negligence actions in which a party seeks damages for wrongful death, personal injury or damage to property . . . Clearly, this is not a claim for personal injury or wrongful death. The Supreme Court has stated that monetary damage, or economic loss, does not fall within the purview of the phrase `damage to property' as used in § 52-572h. Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 583, 657 A.2d 212 (1995)." Whitaker v. Erdos Maddox, supra. In Williams Ford, Inc. v. Hartford Courant Co., supra, the court examined the legislative history of § 52-572h and concluded "that the legislature intended the phrase `damage to property' to encompass only its usual and traditional meaning in the law of negligence actions, namely, damage to or the loss of use of tangible property, as opposed to damages from personal injury." Id., 583. The court further stated that "we simply cannot sketch the meaning of `damage to property,' as used in § 52-572h(b), to include commercial losses unaccompanied by physical damage to or loss of use of tangible property." Id., 584. "Thus, because the plaintiff claims only economic loss and not physical damage to or loss of use of property, § 52-572h does not apply to the plaintiff's claims." Whitaker v. Erdos Maddox, supra.
BPS also argues that recent Superior Court decisions, including Whitaker v. Erdos Maddox, supra, involved successor counsel, and, therefore, they differ from the situation here, which it alleges involved "coincidental" representation by BPS and Carmody Torrance, LLP. This distinction is immaterial. As discussed, since Herbasway claims only economic loss against BPS in its legal malpractice setoff/counterclaim, the statutory language in § 52-572h makes it clear that the court lacks subject matter jurisdiction as to BPS' apportionment complaint, regardless of any coincidental representation. See Carpenter v. Law Offices Of Dressler Associates, LLC, supra, 85 Conn.App. 660.
CONCLUSION
Based on the foregoing reasons, Herbasway's motion is granted. BPS' apportionment complaint against Carmody Torrance, LLP (# 119) is dismissed. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT