ZUCCARI v. ANTARES YALE TOWNE SPE, No. X08 CV06-5002096S (Jun. 12, 2009)

2009 Ct. Sup. 10164, 47 CLR 813
No. X08 CV06-5002096SConnecticut Superior Court Judicial District of Stamford-Norwalk, Complex Litigation Docket at Stamford
June 12, 2009

Memorandum of Decision on Objections to Plaintiffs’ Request to File Fifth Amended Complaint and Cross Complaint (Nos. 221 and 223) and on Plaintiffs’ Motion to Cite in Parties (No. 218)[1] and on Defendants’ Motions to Dismiss the Claims of Purported Additional Plaintiffs Jewelers Mutual Insurance and Sales One, Inc. a/k/a Sales One LLC

ALFRED J. FENNAG’S, JR., Judge Trial Referee.

Procedural Background
This action was commenced in 2006 by five named plaintiffs, Christina Zuccari, Neil Victor Donner, Karen L. Wellikoff, Mark Kaplan, and Marie Kaplan, all seeking damages for losses allegedly sustained as a result of the April 3, 2006 fire at the property at 735-37 Canal Street in Stamford then known as the Stamford Antiques Center. On April 3, 2008 the CT Page 10165 plaintiffs filed a request to amend complaint (No. 198) seeking permission to file a Fourth Amended Complaint and Cross Complaint which sought to add Jewelers Mutual Insurance (“Jewelers Mutual”) and Sales One, Inc. d/b/a Sales One, LLC (“Sales One”) as additional plaintiffs by amending the complaint to include their names and addresses in paragraph two of the Second Count listing the parties seeking fire loss damages under the Connecticut Unfair Trade Practice Act[2] or “CUTPA”. That request to amend drew objections and motions to dismiss the claims of Jewelers Mutual and Sales One from the Antares defendants (No. 204) and the Haller defendants (No. 205). Each of those objections/motions to dismiss included the claim that “. . . [T]he objection should be sustained [and the Motion to Dismiss should be granted] because plaintiffs failed to file a motion to cite in additional plaintiffs and serve the amended complaint on the [Antares/Haller] defendants.” Although those objections/motions to dismiss have never been ruled on, the plaintiffs, possibly responding to the above-quoted language of the defendants, moved on November 10, 2008 for permission to file a Fifth Amended Complaint and Cross Complaint (No. 217) likewise adding the names of Jewelers Mutual and Sales One to the list of claimants alleged in paragraph two of the CUTPA claim, and simultaneously filed Plaintiff’s Motion to Cite in Parties (No. 218) which is now before the court. As detailed in footnote 1, the Antares defendants and the Heyman defendants have objected with reference to the request to add Jewelers Mutual and Sales One as additional plaintiffs, and have incorporated into those objections/motions to dismiss the claims of Jewelers Mutual and Sales One for lack of subject matter jurisdiction because no process has been served upon the defendants by Jewelers Mutual and Sales One. Discussion Practice Book § 10-59 provides: The plaintiff may amend any defect, mistake or informality in the writ, complaint, or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return date. Conn. Gen. Stat. § 52-128 is identically worded, but then adds “. . . and at any time afterwards on the payment of costs at the discretion of the court; but, after any such amendment, the defendant shall have a reasonable time to answer the same.” In this case the failure to name Jewelers Mutual and Sales One as plaintiffs in the original summons and complaint is not a “defect, mistake or informality” subject to cure solely by an amendment to the complaint. Allen v. Freedman, M.D., Docket No. CV94-0358124S, Superior Court, Judicial District of New Haven at New Haven (April 26, 1994, DeMayo, J.) [11 Conn. L. Rptr. 504]; 1994 Conn.Super. LEXIS 1081 (“The failure by the plaintiffs to inform the defendants in the writ of the names of all parties bringing the suit is a jurisdictional, not a circumstantial defect.”) Except in the case of an amendment as of right in the first thirty days following the return date under Practice Book § 10-59, which can cure “any defect” including CT Page 10166 jurisdictional defects, [3] the correction of a jurisdictional defect is governed by Conn. Gen. Stat. § 52-72, which provides in pertinent part:

(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement.
(b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of service, as if originally proper in form.
(c) If the court, on motion and after hearing, finds that the parties had notice of the pendency of the action and their rights have not been prejudiced or affected by reason of the defect, any attachment made by the original service and the rights under any lis pendens shall be preserved and continued from the date of service of the original process as though the original process had been in proper form. A certified copy of the finding shall be attached to and served with the amended process.

In this case it is undisputed that the plaintiffs have not at this point served the defendants with any process naming Jewelers Mutual and Sales One as parties’ plaintiff in this case. But subsection (a) of § 52-72
requires the court to allow any “proper amendment” to cure defective process and subsection (b) speaks of service of that “amended process.” Clearly, then, the statute contemplates first, an amendment to the process to correct the “defect” (here, omission of parties’ plaintiff) followed by service of the amended process upon the opposing party or parties. Indeed it is hard to imagine how the order of proceeding could be the opposite, which is implicit in defendant’s position, since both by Practice Book rule (P.B. § 8-1(a)) and statute (Conn. Gen Stat. § 52-45a) mesne process or legal process commencing a case must always be “accompanied by the plaintiff’s complaint.” If the plaintiff was not allowed to amend his or her complaint because service of process has not previously been made, what “complaint” would or could be served with a summons to cure that defect?[4] Here the defendants have moved to dismiss the claims that would be stated in the amended process before the amendment has become effective and therefore proper for service of process. Under Practice Book § 10-60, a request to amend complaint, if CT Page 10167 objected to, only becomes effective if and when approved by the court.

The cases cited by defendants are inapposite. In Brittain v. Hospital of St. Raphael, Docket No. CV98-00413933, Superior Court, Judicial District of New Haven (April 26, 2001, Devlin, J.), 2001 Conn.Super LEXIS 1174, the amended complaint stating the loss of consortium claim of the original malpractice plaintiff’s husband was allowed to be filed and was served upon the defendants. The court thereafter entered summary judgment in favor of the defendant hospital on the grounds of statute of limitations, holding that the service of process of the loss of consortium amendment did not relate back to the time of the earlier-served malpractice complaint. There was no issue of subject matter jurisdiction or disallowance of the amended complaint. And i Hillman v. Greenwich, 217 Conn. 520 (1991), the court was presented with the unique situation where the original complaint had been served without any summons at all. After a motion to dismiss was filed, the plaintiff served an amended complaint with a proper summons on the defendant. The trial court was reversed for failing to grant the motion to dismiss the original complaint because a writ of summons “is an essential element to the validity of the jurisdiction of the court.” Id. at 526. The Supreme Court also disagreed with the trial court’s conclusion that the service of the amended complaint with a proper writ of summons cured the original defect because the accidental failure of suit statute, Conn. Gen. Stat. § 52-123 “. . . is not available to cure irregularities in the service or return of process.” Id. at 527. Here, there is no claim of any irregularity in the original 2006 service of process by the five original plaintiffs. This case involves an amendment to state the claims of two entirely new plaintiffs. This situation is governed by the second part of the Hillman opinion which upheld the Superior Court’s trial of the case on the allegations of the amended complaint validly served with a summons, and affirmed the trial court in holding that the case alleged in the amended complaint was time-barred under Conn. Gen. Stat. § 13a-138
which took effect in the interval between the original defective service and the subsequent valid service of process. In this case we are not at this point dealing with the issues whether or not the claims of the amended complaint are time-barred, or relate back to the 2006 initiation of this case, but only with the plaintiffs right to file the amendment and comply with § 52-72(b).

There is a general rule that “Whenever the absence of jurisdiction is brought to the notice of the court, . . . cognizance of it must be taken and the matter passed upon before it can move one further step in the cause, as any movement is necessarily the exercise of jurisdiction”. Se Baldwin Piano and Organ Company v. Blake, 186 Conn. 295, 297 (1982). The rule, however, is not inflexible and has been varied in situations where CT Page 10168 it is manifest that a strict adherence to the rule would work injustice.”Lupicanni v. Stamford, 48 Conn.Sup. 1, 3 (Lewis, J., 2002). This is clearly such a case. Although the additional plaintiffs have not served process on the defendants, they are attempting to get court approval of an amended complaint which must be included with the process to be served. In Lupinacci, Judge Lewis held that he could properly exercise jurisdiction for the limited purpose of determining if the action should be saved from dismissal by a substitution of plaintiffs. In this case by analogous reasoning the court may properly exercise jurisdiction for the limited purpose of giving the additional plaintiffs an opportunity to save their claims from dismissal by permitting the amendment to complaint which must accompany the summons they must serve under § 52-72(b).

Orders
For the foregoing reasons:

1. The defendants’ objections to the Plaintiffs’ Request to Fifth Amended Complaint and Cross Complaint (Nos. 221 and 223) are overruled.[5] The Plaintiff may file the Fifth Amended Complaint and Cross Complaint.

2. The Plaintiffs’ Motion to Cite in Parties (No. 218) is granted. With respect to the newly cited-in defendants David Johnson, Drew Clark, and Art Exchange, LLC the plaintiffs shall file not later than June 25, 2009 a form of the proposed summons (with service and return dates left blank) to be served upon those defendants along with a copy of the Fifth Amended Complaint and Cross Complaint. With respect to the additional plaintiffs Jewelers Mutual Insurance and Sales One, Inc a/k/a Sales One, LLC those new plaintiffs shall file not later than June 25, 2009 a form of the proposed summons (with service and return dates left blank) to be served on all defendants (including the newly cited-in defendants). Plaintiffs must pay to the clerk all applicable entry fees/filing fees including but not limited to the fee specified in Conn. Gen. Stat. § 52-72(a). Generally the procedure to be followed shall mirror the procedure of Practice Book § 10-11 for impleading third-party defendants.

3. The defendant’s motions to dismiss the claims of the new plaintiffs Jewelers Mutual Insurance and Sales One, Inc a/k/a Sales One, LLC, as embodied in their objections to the Plaintiffs’ Motion to Cite In Parties are denied

SO ORDERED

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