Opinion
CV166060186S
11-17-2016
Stephanie Sanchez-Chang v. Ryan Fries et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#119)
Robin L. Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
On February 3, 2016, the plaintiff, Stephanie Sanchez-Chang, filed a two-count complaint against Ryan Fries and Alicia Roy, alleging claims of negligence stemming from a four-car accident, with a return date of March 8, 2016. On August 5, 2016, the defendants, Ryan Fries and Alicia Roy, (hereinafter " apportionment plaintiffs") filed a three-count apportionment complaint against the two other motorists involved in the accident, Regina Longyear and Steven Hayes, as well as the plaintiff's insurance carrier. The apportionment defendant, Steven Hayes, has moved to dismiss the apportionment complaint for lack of personal jurisdiction. The apportionment plaintiffs filed an objection to the motion on September 22, 2016, and oral argument was heard on the motion at short calendar on October 24, 2016.
All three apportionment defendants have filed separate motions to dismiss the apportionment complaint, however, only the motion of Steven Hayes, (entry no. #119) is at issue here.
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). " The grounds which may be asserted in [a motion to dismiss] 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 § 10-30. " [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011). " [O]nce the question of lack of jurisdiction of a court is raised . . . [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). " 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).
Our Supreme Court has " conclude[d] that noncompliance with [General Statutes] § 52-102b implicates a court's personal jurisdiction . . ." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 14, 848 A.2d 418 (2004). In Lostritto, the court held that the 120-day time limitation required by § 52-102b(a) is mandatory, the trial court lacks the authority to extend the limitation period, and further noncompliance with § 52-102b implicates a court's personal jurisdiction. Id., 14. The court found that § 52-102b conferred rights that did not exist at common law, and, therefore, the statute's time limitations are substantive in nature, rather than procedural. Id., 26. In so finding, the court noted: " [Section 52-102b delineates] proper timing and method of service of an apportionment complaint. Although § 52-102b contains some procedural aspects, its substantive purpose and effect cannot be minimized." Id., 26.
General Statutes § 52-102b(a) provides: " 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 date specified in the plaintiff's original complaint. The 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 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."
General Statutes § 52-102b(a) establishes a limit of 120 days from the return date specified in the original complaint within which a defendant may serve an apportionment complaint. This time limitation is mandatory and " must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties." (Emphasis in original.) Pedro v. Miller, 281 Conn. 112, 118, 914 A.2d 524 (2007). A failure to comply with the 120-day limit of § 52-102b(a) deprives the court of personal jurisdiction over the apportionment defendant. Id., 117.
In the present case, the apportionment complaint was served on August 15, 2016, 160 days after the March 8, 2016 return date specified in the original complaint. Notwithstanding any confusion the apportionment plaintiffs may have had with regards to the plaintiff's insurance carrier, they were in possession of the police report and Steven Hayes' information from the beginning. See Levine v. Ward, Superior Court, judicial district of New Haven, Docket No. CV-12-603-6640-S, (April 21, 2014, Nazzaro, J.) (finding equitable considerations unwarranted where defendant had full access to police report from inception of case and over one month to file complaint even after realizing possibility of claim). This situation was within the apportionment plaintiffs' control and is not in line with the cases in which equitable consideration was found to be warranted. See e.g., Pedro v. Miller, supra, 281 Conn. 112 (basis for apportionment did not arise until after 120-day limit expired when plaintiff's amended complaint filed); Maggio v. Aames Funding Corp., Superior Court, judicial district of New Haven, Docket No. CV-06-500-0907-S, (April 11, 2008, Gilligan, J.) (basis for apportionment did not arise until after 120-day limit expired because defendant not yet party to suit).
Since there are no equitable reasons to excuse the apportionment plaintiffs' failure to comply with § 52-102b(a), the court is deprived of personal jurisdiction over the apportionment defendant, Steven Hayes.
CONCLUSION
Accordingly, the apportionment defendant's motion to dismiss is granted.