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Brookdale Senior Living, Inc. v. TJ Construction Corp.

Superior Court of Connecticut, Judicial District of Hartford, Hartford

August 25, 2015

Brookdale Senior Living, Inc.
v.
TJ Construction Corp. et al

MEMORANDUM OF DECISION RE MOTION TO DISMISS APPORTIONMENT COMPLAINT OF CREATIVE CONTRACTING ACCURATE ACOUSTICS, INC.

A. Susan Peck, J.

On December 21, 2012, the plaintiff, Brookdale Senior Living, Inc., commenced this action against the defendant/apportionment plaintiff, TJ Construction Corporation (TJ Construction), by service of process. The complaint alleged a variety of claims based on TJ Construction's allegedly negligent installation of a roof at the plaintiff's facility located in Farmington, Connecticut.[1] The summons listed a return date of January 15, 2013.

Within 120 days of the original return day, TJ Construction filed apportionment complaints against other contractors it believed had also worked on the plaintiff's facility, including Quetzal Construction, Inc. (Quetzal), Douglas Young, and Young and Son Remodeling, LLC d/b/a Young & Son Remodeling (Young & Son).[2] On May 10, 2013, TJ Construction commenced timely apportionment actions against " Robert LaGrega d/b/a NRS Retail Construction & Facilities Management" (LaGrega), and " National Retail Services, Ltd. d/b/a RS Retail Construction & Facilities Management" (NRS).[3] Unbeknownst to. TJ Construction at the time, NRS was an assumed name of another, distinct entity, Creative Contracting Accurate Acoustics, Inc. (Creative Contracting), a corporation registered in New York. LaGrega was a principal of both NRS and Creative Contracting. Nearly a year later, on May 1, 2014, TJ Construction filed an apportionment complaint against Creative Contracting. Creative Contracting filed an appearance on May 23, 2014.[4]

On June 13, 2014, Creative Contracting filed a motion to dismiss the apportionment complaint for lack of personal jurisdiction, on the ground that TJ Construction failed to serve the apportionment complaint within 120 days of the original return date, as required by General Statutes § 52-102b(a). TJ Construction successfully moved for a stay pending completion of discovery relevant to the jurisdictional issue. On March 10, 2015, TJ Construction filed its opposition to the motion to dismiss and a supporting memorandum of law. The court heard argument at short calendar on May 11, 2015. At the court's instruction, TJ Construction filed a supplemental memorandum on May 12, 2015, and Creative Contracting filed a reply memorandum on May 18, 2015.

" [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.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " The grounds which may be asserted in [a motion to dismiss include] . . . lack of jurisdiction over the person . . ." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). " Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes . . . are essential to jurisdiction over the person." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011).

Creative Contracting argues that TJ Construction failed to serve the apportionment complaint within 120 days of the return date listed in the plaintiff's original complaint, as required under § 52-102b(a), which deprives the court of personal jurisdiction. The plaintiff's complaint lists a return date of January 15, 2013, which gave TJ Construction until approximately May 15, 2013, to serve the apportionment complaint. Creative Contracting claims that the action was not commenced until May 1, 2014, approximately one year after the 120-day period expired.

In response, TJ Construction concedes that service on Creative Contracting took place well outside the statutory limitation period, but argues that the court should excuse its failure to comply with § 52-102b(a) under equitable tolling principles. Specifically, it maintains that it was unaware of Creative Contracting's existence until April 10, 2014, long after the 120-day period expired, when it received a letter via e-mail indicating that NRS, which it had apportioned in within the 120-day period, was not the proper party because it was merely an assumed name of Creative Contracting, a distinct entity. Thus, TJ Construction claims that it first learned of Creative Contracting's potential liability as an apportionment defendant upon receipt of the emailed letter. Furthermore, TJ Construction maintains that its inability to identify Creative Contracting was due to no fault of its own, because Creative Contracting conducted business using trade names, rather than its true corporate name, without registering the trade names with the Town of Farmington so as to notify the public of its identity. TJ Construction argues that such conduct violates General Statutes § 35-1 and is considered a per se unfair or deceptive trade practice under the Connecticut Unfair Trade Practices Act (CUTPA). Finally, TJ Construction contends that Creative Contracting intentionally concealed its identity by never disclosing its true name during litigation, despite the knowledge that TJ Construction had named the wrong party in the apportionment complaint. According to TJ Construction, these circumstances present a sufficiently compelling equitable reason to excuse its noncompliance with the 120-day time limit established by § 52-102b(a).

Creative Contracting counters that equitable tolling is not warranted here. Notably, it does not dispute TJ Construction's factual claim that it did not learn of Creative Contracting's existence as a viable apportionment defendant until long after the 120-day period passed. Furthermore, while Creative Contracting contests the claim that it intentionally concealed its identity, it has never argued that it did not violate § 35-1 by failing to register its trade names with the Town of Farmington. Rather, its argument against equitable tolling is that TJ Construction's failure to identify and serve it within the 120-day limitation period was a result of TJ Construction's own negligence. Creative Contracting maintains that its identity was readily available from the outset of litigation, whether through discovery or publicly available information, and that simple due diligence by TJ Construction would have disclosed it.[5]

Section 52-102b(a) provides that a defendant seeking an apportionment of liability must serve the apportionment complaint within 120 days of the return date listed in the plaintiff's original complaint. Compliance with § 52-102b(a) is mandatory, and therefore, failure to commence the apportionment action within the 120-day limit deprives the court of personal jurisdiction. Lostritto v. Community Action Agency of New Haven, Inc, 269 Conn. 10, 14, 848 A.2d 418 (2004). " Mandatory compliance with the 120-day limit, however, is not without exception. Mandatory time limitations . . . must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties." (Emphasis omitted; internal quotation marks omitted.) Pedro v. Miller, 281 Conn. 112, 118, 914 A.2d 524 (2007). Rejecting the proposition that waiver and consent are the only bases for excusing noncompliance, the Pedro court held that exceptions may generally be allowed where the case " presents a compelling equitable reason for excusing compliance . . ." Id., 119; see also Id., 121 (apportionment system may avoid inequities " by allowing exceptions where equity demands them").

" The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court." (Internal quotation marks omitted.) Allstate Ins. Co. v. Palumbo, 109 Conn.App. 731, 736, 952 A.2d 1235 (2008), rev'd on other grounds, 296 Conn. 253, 994 A.2d 174 (2010). In making this determination, the court is not confined to any set criteria but instead must " examine all relevant factors to ensure that complete justice is done." (Internal quotation marks omitted.) Sunset Mortgage v. Agolio, 109 Conn.App. 198, 203, 952 A.2d 65 (2008); see also McKeever v. Fiore, 78 Conn.App. 783, 788, 829 A.2d 846 (2003) (" equitable remedies are not bound by formula but are molded to the needs of justice" [internal quotation marks omitted]). " Sound discretion . . . means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law . . ." (Internal quotation marks omitted.) Rodriguez v. Ancona, 88 Conn.App. 193, 201, 868 A.2d 807 (2005).

In Pedro, our Supreme Court held that " 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." Pedro v. Miller, supra, 281 Conn. 118-19. Upholding an apportionment action that was commenced approximately sixteen months after the deadline, the court observed " the legal basis for the defendants to seek apportionment . . . did not arise until after--indeed, long after--the 120-day limit already had passed. Consequently, it was impossible for the defendants to serve the apportionment claim . . . within the 120-day limit established by § 52-102b(a). Such a circumstance presents a compelling equitable reason for excusing compliance with the limit set forth in that statute." Id., 119.

This case differs from Pedro . Unlike in Pedro, the legal basis for TJ Construction to apportion Creative Contracting was in place at the onset of litigation in January 2013. The issue is instead whether the circumstances underlying TJ Construction's lack of awareness of that basis until after the limitation period is a sufficient equitable reason to excuse noncompliance with the statute.

Superior Court decisions have generally extended Pedro to situations like the one presented here, where the legal basis for apportionment existed from the outset but the defendant was unaware of it until after--or just before--the 120-day period expired. In Mills v. Solution, LLC, Superior Court, judicial district of Bridgeport, Docket No. CV-07-5009361-S (September 18, 2008, Arnold, J.) (46 Conn. L. Rptr. 434, 438, 2008 Conn. Super. LEXIS 2454, *6), the court excused a failure to comply with § 52-102b(a) where the apportionment defendant's identity was unknown until sixteen days before the 120-day period expired. The court wrote, " [t]his court can find no reason to differentiate between 'equitable considerations' that arise before or after the expiration of the 120-day time limit, regardless of whether the legal basis for apportioning liability arose before or after the expiration of the 120-day time limit." Id.; see also Bostic v. Transportation General, Inc., Superior Court, judicial district of New Haven, Docket No. CV-13-6040133-S (June 10, 2014, Nazzaro, J.) (58 Conn. L. Rptr. 323, 325, 2014 Conn. Super. LEXIS 1428, *12) (" because the police report . . . indicated no liability on the part of the apportionment defendant and [the apportionment plaintiff] only gained access to the information to form the basis of its apportionment complaint after the 120-day limit had expired, the court finds there are equitable reasons for excusing compliance with the 120-day limit of § 52-102b(a)"); Bell v. Kramont Operating Ltd. Partnership, L.P., Superior Court, judicial district of New Haven, Docket No. CV-13-6036881-S (October 21, 2014, Wilson, J.) (59 Conn. L. Rptr. 191, 197, 2014 Conn. Super. LEXIS 2582, *34) (" [t]he only equitable reason worthy of consideration before this court is the assertion that the existence of the third-party defendant as a potential tortfeasor and a party to the action was unknown to the plaintiff at the time the action was commenced").

Therefore, TJ Construction's claim for equitable tolling on the basis of its lack of awareness that Creative Contracting existed as a viable apportionment defendant is not without merit, [6] but the court's inquiry does not end there. The mandatory nature of § 52-102b(a) demands " reasonable efforts . . . to try and comply with the deadline." Gonzalez v. Connecticut Natural Gas Corp, Superior Court, judicial district of Hartford, Docket No. CV-12-6030647-S (June 19, 2013, Peck, J.) (56 Conn. L. Rptr. 417, 419, 2013 Conn. Super. LEXIS 1400, *13); see also Almeida v. Archer, Superior Court, judicial district of New London, Docket No. CV-13-6016271-S (May 15, 2014, Cole-Chu, J.) [59 Conn. L. Rptr. 191, 2014 Conn. Super. LEXIS 1199, *13] (" there is no basis in ยง 52-102b(a) for the court to conclude that it has the discretion to permit tolling for any error, in equity"). Thus, the court must " review[] the entire ...


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