Szpryngelv.GF Waterbury SH, LLC

Connecticut Superior Court Judicial District of Waterbury at WaterburyJun 4, 2009
2009 Ct. Sup. 9383 (Conn. Super. Ct. 2009)

No. CV08-5007591S

June 4, 2009


MEMORANDUM OF DECISION


BRUNETTI, J.

This memorandum of decision addresses the defendant, J.R. Cambridge Construction Company, Inc.'s, motions to dismiss the October 16, 2008 amended complaint (#131) and the June 4, 2008 original apportionment complaint (#137). This memorandum further addresses the apportionment defendant, J.R. Cambridge Construction Company, Inc.'s, motion to dismiss the October 28, 2008 amended intervening complaint (#129). For the reasons set forth below, the motions to dismiss, #131 #137 and #129, are denied.

I FACTS

On January 22, 2008, the plaintiff, Lisa Szpryngel, commenced this action by service of process against the defendant, GF Waterbury SH LLC (GF Waterbury). The plaintiff filed a one-count complaint in which she alleges the following facts: That on February 16, 2006, the plaintiff, a registered nurse, arrived at the Village at East Farms, an assisted living facility owned by the defendant, for the purpose of the rendering medical services to a patient of hers who resided at the defendant's facility. As she exited her vehicle, she was caused to slip and fall in the parking lot on an accumulation of ice, causing various injuries. As a result, she filed the original action, alleging the plaintiff was negligent in failing to properly maintain its premises and remove the ice.

Subsequent to the filing of the plaintiff's complaint, the plaintiff's employer, Vitas Health Care, filed a motion to intervene as a co-plaintiff, which was granted by the court (Alvord, J.) on February 18, 2008. On June 24, 2008, the defendant filed an apportionment complaint against J.R. Cambridge Construction Company, Inc. (J.R. Cambridge), alleging that J.R. Cambridge was hired by the defendant/apportionment plaintiff for snow and ice removal. The apportionment complaint contained a return date of July 8, 2008, however, missing from the apportionment complaint was a certification that confirmed the apportionment complaint had been sent to all the parties. It was later discovered that due to a clerical error by GF Waterbury's counsel, the apportionment complaint was never sent to the plaintiff and the intervening plaintiff. See Lusatta Weston's Affidavit, aGF Waterbury's Objection to the Supplemental Motion to Dismiss Exhibit A. When J.R. Cambridge failed to file an appearance within two days of the apportionment complaint's return date, GF Waterbury filed its August 19, 2008 motion for default pursuant to Practice Book § 17-20, which was granted on September 4, 2008.

It should be noted that the apportionment plaintiff, GF Waterbury, also filed a separate apportionment complaint against the plaintiff's chiropractor, Robert Porzio, and Porzio Chiropractic Center on September 22, 2008. However, this memorandum will not address the claims and legal issues that are involved with that litigation, as it is not presently before the court on the current motions to dismiss.

Although GF Waterbury filed its apportionment complaint on June 24, 2008, the plaintiff did not file her amended complaint until October 20, 2008. While no sworn affidavits are provided to substantiate her claim, the plaintiff maintains that she was not notified that any apportionment complaint had been filed until September 9, 2008, when she ultimately received a copy of the complaint from GF Waterbury.

On December 22, 2008, the defendant, J.R. Cambridge filed a motion to dismiss the plaintiff's amended complaint (#131). Also on that date, J.R. Cambridge, as the apportionment defendant, filed a motion to dismiss the intervening plaintiff's amended intervening complaint (#129). Lastly, on April 7, 2009, the apportionment defendant, J.R. Cambridge, moved for the first time to dismiss the apportionment plaintiff, GF Waterbury's, June 24, 2008 apportionment complaint (#137). Argument was heard by the court on April 27, 2009.

II DISCUSSION

"Although the filing of an appearance on behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims, [a]ny [defendant] wishing to contest the court's jurisdiction may do so by filing a motion to dismiss within thirty days of the filing of an appearance . . ." (Citations omitted; internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002); see also Practice Book § 10-30. Practice Book § 10-30. "It is fundamental that jurisdiction over a person can be obtained by waiver." (Emphasis in original.) Connor v. Statewide Grievance Committee, supra, 445.

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 . . ."

"[Practice Book § 10-32] specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days [after the filing of an appearance and] in the sequence required by Practice Book § 10-6 . . . Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court. Any claim of insufficiency of service of process is waived if not sooner raised." (Emphasis in original.) Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999). "Practice Book § [10-6] sets forth the order in which pleadings are to be filed. It states that a motion to dismiss is to be filed before a motion to strike. Practice Book § [10-7] states that `[i]n all cases, when the court does not otherwise order, the filing of any pleading provided for by the preceding 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.' . . . Thus, generally, pleadings are not to be filed out of the order specified in § [10-6], and the filing of a pleading listed later in the order set out by § [10-6] waives the right to be heard on a pleading that appears earlier on the list." (Emphasis in original.) Sabino v. Ruffolo, 19 Conn.App. 402, 404, 562 A.2d 1134 (1989); see also General Statutes § 52-120 (pertaining to pleadings filed by consent after expiration of time); Wilson v. Hryniewicz, 38 Conn.App. 715, 718-19, 663 A.2d 1073, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995).

While J.R. Cambridge has moved to dismiss the plaintiff's amended complaint, the apportionment complaint and the amended intervening complaint on the grounds that the court lacks both subject matter jurisdiction and personal jurisdiction, J.R. Cambridge has failed to articulate how the court currently lacks subject matter jurisdiction. In its motions to dismiss the plaintiff's amended complaint (#131) and the intervening plaintiff's amended intervening complaint (#129), as well as in its supplemental motion to dismiss the apportionment complaint (#137), J.R. Cambridge alleges a failure by all three parties to comply with the requirements of General Statutes § 52-102b. In reading J.R. Cambridge's various motions to dismiss, it is assumed that the basis for its personal and subject matter jurisdiction arguments are both rooted in the three parties' failure to comply with § 52-102b. However, our Supreme Court has indicated that J.R. Cambridge is only half right with regard to its jurisdictional arguments. As Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 14, 848 A.2d 418 (2004) made clear, noncompliance with § 52-102b is a personal jurisdiction issue, not a subject matter jurisdiction issue: "We [. . .] conclude that noncompliance with § 52-102b implicates a court's personal jurisdiction, not subject matter jurisdiction." Id. Thus, while the court must determine whether § 52-102b was complied with and personal jurisdiction is present, it need not decide the issue of subject matter jurisdiction, as J.R. Cambridge has provided no other arguments which would put into question the matter of subject matter jurisdiction.

A GF WATERBURY SH LLC'S APPORTIONMENT COMPLAINT (#137)

In its April 7, 2009 supplemental motion to dismiss the apportionment complaint (#137), the apportionment defendant, J.R. Cambridge, moved for the first time to dismiss the apportionment plaintiff, GF Waterbury's, June 24, 2008 apportionment complaint. However, this supplemental motion to dismiss the apportionment complaint was submitted more than thirty days after J.R. Cambridge's October 22, 2008 appearance was filed. "[T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction . . . Accordingly, jurisdiction over a person can be obtained by waiver . . . Unlike the situation with subject matter jurisdiction, a party waives the right to dispute personal jurisdiction unless that party files a motion to dismiss within thirty days of the filing of an appearance . . . Personal jurisdiction is not like subject matter jurisdiction, which can be raised at any time and by the court on its own motion . . . Unless the issue of personal jurisdiction is raised by a timely motion to dismiss any challenge to the court's personal jurisdiction over the defendant is lost." (Internal quotation marks omitted.) Vandermark v. Hartford Hospital, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 03 4027734 (July 21, 2008, Berger, J.), quoting Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 415-16, 885 A.2d 768 (2005).

"Thus, thirty-one days after the filing of an appearance . . . a party is deemed to have submitted to the jurisdiction of the court." Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999). "Because § 52-102b implicates personal jurisdiction, a party must object to the 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." Carpenter v. Law Offices of Dressler Associates, LLC, 85 Conn.App. 655, 662, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004). As previously stated, J.R. Cambridge filed its appearance on October 22, 2008 and did not file the supplemental motion to dismiss the apportionment plaintiff's apportionment complaint until April 7, 2009, well beyond thirty days of filing its appearance. It is true that J.R. Cambridge filed a motion for extension of time in which to plead to the apportionment complaint, which was granted by the court (Alvord, J.) on November 3, 2008. In granting the motion, J.R. Cambridge was given an additional thirty days to plead to the apportionment complaint. While the parties dispute whether the granting of the motion for extension of time gave J.R. Cambridge additional time in which to file a motion to dismiss, this issue need not be addressed at this time. Regardless of whether the motion for extension of time gave J.R. Cambridge additional time to file a motion to dismiss, J.R. Cambridge did not file its supplemental motion to dismiss the apportionment complaint until April 7, 2009, a date well beyond the December 3, 2008 deadline that was set with the granting of the motion for extension of time. Consequently, J.R. Cambridge waived its opportunity to dismiss the apportionment complaint when it let nearly six months pass from the date it filed its appearance until it filed its supplemental motion to dismiss the apportionment complaint.

Moreover, J.R. Cambridge failed to comply with Practice Book § 10-6 when it filed an answer to the apportionment complaint on December 18, 2008, prior to filing its supplemental motion to dismiss the apportionment complaint. Section 10-6 provides in relevant part: "The order of pleadings 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 answer (including any special defenses) to the complaint." Practice Book § 10-7 provides the consequences for failing to file pleadings in their proper order: "In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding 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 the pleading provided in that section." Thus, in filing its answer before a motion to dismiss the apportionment complaint, J.R. Cambridge waived its right to object to the apportionment complaint for personal jurisdiction reasons.

It is true that the defendant/apportionment plaintiff failed to comply with § 52-102b(a) when it failed to serve the apportionment complaint upon the plaintiff. However, as Lostritto makes clear, noncompliance with § 52-102b(a) is a personal jurisdiction issue which can be waived by the apportionment defendant. Here, in failing to file the supplemental motion to dismiss the apportionment complaint before filing its answer, and in letting nearly six months pass between the filing of its appearance and the motion to dismiss, J.R. Cambridge waived any right to challenge personal jurisdiction. It is for these reasons that J.R. Cambridge's supplemental motion to dismiss the apportionment complaint is ordered denied.

CT Page 9388

B THE PLAINTIFF'S AMENDED COMPLAINT (#131)

In its December 22, 2008 motion to dismiss the plaintiff's amended complaint (#131), the apportionment defendant, J.R. Cambridge, argues that the court lacks both personal and subject matter jurisdiction, as the plaintiff failed to file her amended complaint within sixty days of the apportionment complaint, as required by General Statutes § 52-102b(d). However, as previously discussed, J.R. Cambridge has failed to indicate how the court lacks subject matter jurisdiction, as it has only alleged a failure to comply with § 52-102b(d), which is a personal jurisdiction issue only. As such, the court need only to address the issue of personal jurisdiction and whether the plaintiff's amended complaint ought to be dismissed for failure to comply with § 52-102b(d).

Section 52-102b(d) provides: "Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date or 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." In the case at hand, the defendant/apportionment plaintiff GF Waterbury served its apportionment complaint on J.R. Cambridge on June 10, 2008, with a return date of July 8, 2008. However, the plaintiff did not amend its complaint adding a count against J.R. Cambridge until October 20, 2008, a date well beyond sixty days of the return date. While J.R. Cambridge points to the untimeliness of the amended complaint in support of its motion to dismiss, the plaintiff maintains that she was never served with GF Waterbury's apportionment complaint and did not receive a copy of the apportionment complaint until September 9, 2008. Consequently, it is the plaintiff's position that the sixty-day requirement of § 52-102b(d) was tolled until September 9, 2008, thus making her amended complaint, filed October 20, 2008, timely.

Our courts have previously dealt with the question of whether an apportionment plaintiff's failure to comply with the notice requirement of § 52-102b(a) tolls the sixty-day limitation of § 52-102b(d). In Jones v. Chapel Square Mall of New Haven, Inc., Superior Court, judicial district of New Haven, Docket No. CV 99 0423606 (February 1, 2000, Alander, J.), the apportionment defendants filed a motion to strike on the grounds that the plaintiff had failed to file its amended complaint within sixty days, as required by § 52-102b(d). In Jones, the defendant filed two apportionment complaints; one against the apportionment defendants Burger King Corporation and C L Connecticut Restaurant, LLC with a return date of June 15, 1999 and the second solely against the apportionment defendant C L Connecticut Restaurant, LLC with a return date of July 13, 1999. The plaintiff did not file his amended complaint asserting his claims against the apportionment defendants until November 9, 1999, a date well past both apportionment complaints' return dates. However, neither the plaintiff nor his attorney had been served with a copy of either apportionment complaint by the defendant and no certification page was found on the apportionment complaints.

While the apportionment defendants in Jones filed a motion to strike and not a motion to dismiss, the court found that "[a]lthough a claim that an action is barred by the lapse of the statute of limitations may not be raised by a motion to strike, a statutory time limit which constitutes a condition attached to the statutory cause of action may be asserted by a motion to strike." (Emphasis added). Jones v. Chapel Square Mall of New Haven, Inc., supra, Superior Court, Docket No. CV 99 0423606. Thus, even though the Jones court dealt with a different legal standard, because the two cases involve the same issue and could have been decided by either a motion to dismiss or a motion to strike, the Jones court's reasoning is analogous to the current action.

In determining that the failure to serve the plaintiff with a copy of the apportionment complaint tolls the running of the sixty-day limitation period of § 52-102b(d), the Jones court relied on the language of § 52-102b(d) which states that "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). Section 52-102b(a) provides in relevant part that "[t]he defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint."

The Jones court then noted that "neither the plaintiff nor his attorney was served with a copy of either apportionment complaint by the defendant Chapel Square Mall. There is no certification on the apportionment complaints showing service on plaintiff's counsel despite the requirement of § 52-102b(a) that the defendant Chapel Square Mall serve a copy of the apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint. See Practice Book §§ 10-12 and 10-13. The sheriff's returns for the apportionment complaints also do not show service upon the plaintiff." Jones v. Chapel Square Mall of New Haven, Inc., supra, Superior Court, Docket No. CV 99 0423606. In determining that the plaintiff did not receive notice of the apportionment complaints until he received a copy of the appearance and answer of the apportionment defendants which were dated October 13, 1999 and filed on October 15, 1999, the court concluded that "Section 52-102b requires that the plaintiff assert his claim against the apportionment defendants within sixty days of the return date of the apportionment complaint that is served upon him in accordance with the Practice Book rules. The failure to serve plaintiff's counsel with a copy of the apportionment complaint as required by Practice Book § 10-12 tolls the running of the sixty day period . . . To conclude otherwise would produce an unreasonable and unfair result that could not have been within the contemplation of the legislature when enacting Section 52-102b. Fundamental tenets of due process . . . require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses." (Citations omitted; internal quotation marks omitted.) Id.

Thus, because the sixty-day limitation of § 52-102b(d) is predicated upon the apportionment complaint being served pursuant to § 52-102b(a), the Jones court reasoned that a failure to comply with § 52-102b(a) tolls the sixty-day limitation until the plaintiff has received notice of the filing of the apportionment complaint. This approach was later adopted by the court in Pagan v. Young Women's Christian Association of Meriden, Superior Court, judicial district of New Haven, Docket No. CV 01 0276996 (May 7, 2002, Wiese, J.), as the court stated: "[the] two sections of § 52-102b make proper service of the apportionment complaint on the plaintiff a condition precedent to the commencement of the sixty-day time limit." (Internal quotation marks omitted.) Id. Further, despite the fact that the apportionment defendant provided notice to the plaintiff of the apportionment complaint by pleadings, the Pagan court held that "[c]ompliance with General Statutes § 52-102b(a), however, requires that a copy of the apportionment complaint be served pursuant to Practice Book § 10-12(a) on all parties to the original action." (Emphasis in original.) Id.

In the present case, GF Waterbury failed to comply with Practice Book § 10-12 and General Statutes § 52-102b(a) when it did not send a copy of the apportionment complaint to the plaintiff. Consequently, as the fundamental tenets of due process require and the courts in Jones and Pagan set forth, the sixty day limitation of § 52-102b(d) did not begin to run until the plaintiff had notice that an apportionment complaint had been filed. According to the plaintiff, the date she was notified of such an apportionment complaint was September 9, 2008. GF Waterbury acknowledges it failed to send a copy of the apportionment complaint and neither they nor J.R. Cambridge dispute that the plaintiff was not aware an apportionment complaint had been filed until September 9, 2008. Thus, in filing its amended complaint on October 20, 2008, the plaintiff was timely under the provisions of § 52-102b(d). It is for this reason that the motion to dismiss the plaintiff's amended complaint is ordered denied.

C THE INTERVENING PLAINTIFF'S AMENDED INTERVENING COMPLAINT

On December 22, 2008, J.R. Cambridge also filed a motion to dismiss the intervening plaintiff's amended intervening complaint (#129). The intervening plaintiff, Vitas Health Care, has failed to file any pleadings or memorandum objecting to said motion to dismiss, choosing instead to adopt the arguments of the plaintiff as made in her memorandum of opposition as directed to motion #131. Applying the same reasoning as set forth above, the motion to dismiss the intervening plaintiff's amended intervening complaint (#129) is denied.

The intervening plaintiff's reliance on GF Waterbury's stance was relayed to the court via plaintiff's counsel. Counsel for the intervening plaintiff was not present at argument on April 27, 2009.

III CONCLUSION

For the foregoing reasons, J.R. Cambridge's supplemental motion to dismiss the apportionment complaint (#137) and its motions to dismiss the plaintiff's amended complaint (#131) and the intervening plaintiff's amended intervening complaint (#129) are denied.