Pedro v. Miller, 17482.

• Citation: 914 A.2d 524,281 Conn. 112
• Decision Date: 23 January 2007
• Docket Number: No. 17482.,17482.
• Court: Supreme Court of Connecticut
• Parties: Cristin PEDRO v. Joseph MILLER et al.

914 A.2d 524

281 Conn. 112

Cristin PEDRO v. Joseph MILLER et al.

No. 17482.

Supreme Court of Connecticut.

Argued October 23, 2006.

Decided January 23, 2007.

Andrew J. O'Keefe, with whom was Joseph M. Busher, Jr., Hartford, for the appellants (named defendant et al.).

Robert E. Kiley, with whom was Bradley M. Smolkin, and, on the brief, Elizabeth Adams, Hartford, for the appellee (plaintiff).

BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

BORDEN, J.

The sole issue in this appeal is whether, under the circumstances of the present case, equitable reasons existed to toll the statute of limitations for serving an apportionment complaint. The defendants, Joseph Miller and Builders, Inc., appeal¹ from the judgment of the trial court granting the motion to dismiss the apportionment defendant, Edward Hargus, based on the failure of Miller to serve the apportionment complaint upon Hargus within 120 days of the return date of the original complaint, as required by General Statutes § 52-102b(a).² The defendants claim that the trial court improperly concluded that there were no equitable considerations that tolled the applicable statute of limitations. We agree and, accordingly, we reverse the judgment of the trial court.

The following relevant facts and procedural history are not in dispute. On December 22, 2001, the plaintiff, Cristin Pedro, suffered injuries as a result of a collision between the minivan she was driving and a vehicle owned by Builders, Inc., and operated by Miller, who was an employee of Builders, Inc. She filed a complaint, sounding in negligence, with a return date of February 18, 2003. In her original complaint, the plaintiff alleged that she suffered the following injuries as a result of the accident: pain in the left shoulder and arm; acute left trapezius muscle strain and sprain in her neck; shoulder stiffness; right leg pain; hip pain; low back pain; herniated or bulging discs; and headaches. Soon after filing the complaint against the defendants, the plaintiff began treatment for her injuries with Hargus, her physician. On June 29, 2004, the plaintiff filed an amended complaint, adding the allegation that, during her treatment for her other injuries, she suffered from a cerebrospinal fluid leak. On October 6, 2004, the plaintiff filed a second amended complaint. In response to the new allegation regarding the injuries the plaintiff alleged she had suffered during treatment, the defendants served an apportionment complaint on Hargus on October 22, 2004, and filed the complaint on November 16, 2004, pursuant to General Statutes §§ 52-102b and 52-572h. The trial court granted Hargus' motion to dismiss the apportionment complaint, concluding that it lacked personal jurisdiction over him because the apportionment complaint was served more than 120 days after the return date set forth in the original complaint, and because there was no evidence of waiver or consent.³ This appeal followed.

The defendants claim that the trial court improperly granted Hargus' motion to dismiss because there were compelling equitable considerations to toll the 120 day statute of limitations. We agree.

"As a preliminary matter, we set forth the standard of review. 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. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the trial court's ultimate legal conclusion and resulting [decision to] grant . . . the motion to dismiss will be de novo." (Internal quotation marks omitted.) State v. Haight, 279 Conn. 546, 550, 903 A.2d 217 (2006).

Section 52-102b(a) establishes a limit of 120 days from the return date specified in the original complaint within which defendants may serve an apportionment complaint on other persons who are not parties to the action, and who are or may be liable for a proportionate share of the plaintiff's damages. We have recently interpreted § 52-102b(a) in Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004). Because our statutory analysis in that case governs the result in the present case, it is useful, preliminarily, to set forth that analysis.

In Lostritto, we clarified two key aspects of the 120 day limit, concluding that it implicates personal jurisdiction and that compliance with the limit is mandatory. Id., at 14, 848 A.2d 418. Regarding the type of jurisdiction implicated by the 120 day limit, we began by reviewing the distinctions between personal and subject matter jurisdiction. "[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. . . . A defect in process, however, such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction. . . . [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, however, is jurisdiction over the person, not the subject matter." (Citations omitted; internal quotation marks omitted.) Id., at 31, 848 A.2d 418. 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. Id., at 32-33, 848 A.2d 418.

We also concluded that "compliance with the time limitation contained in § 52-102b(a) is mandatory. . . ." Id., at 17, 848 A.2d 418. In so concluding, we first looked to the language of the statute, which provides that the apportionment complaint "shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint." (Emphasis added.) General Statutes § 52-102b(a); Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. at 20, 848 A.2d 418. The use of the word "shall," we observed, although not dispositive on the issue of whether a statute's directive is mandatory, suggests that it is so, a suggestion that is reinforced by the linguistic evolution of the statute, which reveals that in various revisions of the statute, the legislature consistently "opted for strong, compulsory language when referring to the time limitation for commencing an apportionment action." Lostritto v. Community Action Agency of New Haven, Inc., supra, at 21-22, 848 A.2d 418. That compliance with the time limit is mandatory is further supported by subsection (f) of the statute, which provides that § 52-102b is the "exclusive means" by which a party may be added for purposes of apportioning liability. General Statutes § 52-102b(f);⁴ Lostritto v. Community Action Agency of New Haven, Inc., supra, at 20-21, 848 A.2d 418. Finally, we noted that, because § 52-102b created a right that did not exist at common law, the statute of limitations imposed in the statute is substantive rather than merely procedural. That is, "the time fixed is a limitation or condition attached to the right—it is a limitation of the liability itself as created, and not of the remedy alone." (Internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., supra, at 23, 848 A.2d 418. On the basis of our consideration of all these factors, we concluded that the 120 day limit imposed in § 52-102b is mandatory, and, therefore, "failure to comply with its requirements prevents a defendant from exercising the right to apportion liability." Id., at 26, 848 A.2d 418.

Mandatory compliance with the 120 day limit, however, is not without exception. Mandatory time limitations, we stated "must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties." (Emphasis added; internal quotation marks omitted.) Id., at 35-36, 848 A.2d 418. We did not enumerate in Lostritto other equitable reasons, beyond waiver or consent, that would excuse compliance with the 120 day limit. The issue before us in the present case is whether the fact that the legal basis for apportioning liability arose only after the 120 day limit already had expired constitutes an equitable reason justifying excusal from compliance with the limit. We conclude that it does.

It is useful to review the relevant procedural history in considering this issue. The return date specified in the original complaint was February 18, 2003. The defendants served the apportionment complaint upon Hargus on October 22, 2004, approximately twenty months after the return date. The original complaint, however, provided the defendants with no basis to seek apportionment against Hargus pursuant to § 52-102b(a), which limits the persons against whom apportionment may be sought to those who "may be liable pursuant to [General Statutes § 52-572h] for a proportionate share of the plaintiff's damages . . . ." In the original complaint, the plaintiff alleged injuries that she had suffered only as a result of the accident itself; she made no allegations regarding any additional injuries resulting from her treatment for her initial injuries. It was only when the plaintiff filed the amended complaint on June 29, 2004, more than sixteen months after the original return date, that she added allegations that she had suffered a cerebrospinal fluid leak during her treatment for her other injuries arising from the accident. Until she made this allegation in the amended complaint, the defendants had no factual or legal...