Perrone v. Buttonwood Farm Ice Cream, Inc. ( 2015 )

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MASON PERRONE v. BUTTONWOOD FARM ICE
CREAM, INC.
(AC 36935)
Alvord, Sheldon and Keller, Js.
Argued March 5—officially released July 14, 2015
(Appeal from Superior Court, judicial district of New
London, Cole-Chu, J.)
Peter J. Bartinik, Jr., for the appellant (plaintiff).
Christian A. Sterling, for the appellees (defendant
Kimberly L. Button et al.).
Opinion
PER CURIAM. The plaintiff, Mason Perrone, appeals
from the judgment of the trial court dismissing his
claims in this action against the defendants Duane But-
ton and Kimberly Button (individual defendants).1 On
appeal, the plaintiff argues that the court improperly
granted the individual defendants’ motion to dismiss
for lack of personal jurisdiction due to insufficient ser-
vice of process. We disagree with the plaintiff, and
therefore affirm the judgment of the trial court.
This action concerns an incident that allegedly
occurred on July 31, 2011, while the plaintiff was picking
and transporting sunflowers as a volunteer at But-
tonwood Farm, a farm owned by the named defendant,
Buttonwood Farm Ice Cream, Inc. (corporation), in the
town of Griswold. The plaintiff has alleged that on that
date, as he was sitting on the back of a trailer being
pulled by a tractor operated by an employee of the
corporation, he was injured when another vehicle, also
operated by an employee of the corporation, collided
with the back of the trailer and crushed his foot.
On September 10, 2012, the plaintiff filed a one count
complaint against the corporation, alleging that he had
sustained injuries due to the negligence of the corpora-
tion, acting by and through its agents, the two drivers
of the vehicles involved in the collision (pending
action). On July 12, 2013, the plaintiff filed a motion,
pursuant to General Statutes § 52-102, ‘‘to cite in and
serve’’ the individual defendants, on the ground that
they, as the owner/operators of the corporation, were
necessary parties to the determination or settlement of
his pending action against the corporation. The plaintiff
attached to his motion a proposed amended three count
complaint, which he sought the court’s permission to
serve upon the individual defendants to make them
parties to the pending action. On August 1, 2013, the
court, Hon. Paul M. Vasington, judge trial referee,
granted the plaintiff’s motion to cite in.
The plaintiff, however, never served the individual
defendants with the proposed amended three count
complaint that had been attached to, and approved for
service upon them by the granting of, his motion to cite
in. Instead, on July 19, 2013, almost two weeks before
the court ruled on his motion to cite in, the plaintiff
served the individual defendants with a new summons
and a different, one count complaint stating claims
against them that were identical to those set forth in
the proposed amended three count complaint. The new
summons and complaint did not bear the caption of
the pending action against the corporation, nor did it
identify the corporation as a party to the action in which
those claims were made.
On August 5, 2013, instead of returning the new sum-
mons and complaint to the Superior Court, along with
the appropriate filing fee, to commence a new action
against the individual defendants, the plaintiff filed the
new complaint as a pleading in his pending action
against the corporation. To accomplish this result, the
plaintiff’s attorney crossed out the return date on the
new summons and added, in handwriting, the docket
number of the pending action against the corporation.
Thereafter, on August 9, 2013, the plaintiff requested
leave of the court in his pending action against the
corporation to amend his complaint, ‘‘in order to consol-
idate two complaints into one.’’
On September 25, 2013, the individual defendants
moved to dismiss the claims filed against them in the
pending action for lack of personal jurisdiction due to
insufficient service of process. More specifically, the
individual defendants contended that service of the
plaintiff’s new complaint against them had been invalid,
in and for the purpose of making them additional defen-
dants in his pending action against the corporation,
because the plaintiff had not yet been granted permis-
sion to cite them in at the time he effected such service
upon them. On February 24, 2014, the court, Cole-Chu,
J., granted the individual defendants’ motion to dismiss,
ruling, inter alia, that it lacked personal jurisdiction
over the individual defendants, for the purpose of the
present case, because the plaintiff served them with
process before he had obtained the court’s permission
to do so.2
On appeal, the plaintiff claims that service of process
was proper in this instance, and thus that the court
erred in granting the individual defendants’ motion to
dismiss. We disagree.
As a preliminary matter, we set forth the governing
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. . . . [O]ur review of the trial court’s ulti-
mate legal conclusion and resulting [denial] of the
motion to dismiss will be de novo. . . . Factual find-
ings underlying the court’s decision, however, will not
be disturbed unless they are clearly erroneous. . . .
The applicable standard of review for the denial of a
motion to dismiss, therefore, generally turns on whether
the appellant seeks to challenge the legal conclusions of
the trial court or its factual determinations.’’ (Emphasis
omitted; internal quotation marks omitted.) Deutsche
Bank National Trust Co. v. Bialobrzeski, 123 Conn.
App. 791, 795, 3 A.3d 183 (2010).
The joinder statute, § 52-102, provides that ‘‘[u]pon
motion made by any party or nonparty to a civil action,
the person named in the party’s motion or the nonparty
so moving, as the case may be, (1) may be made a party
by the court if that person has or claims an interest in
the controversy, or any part thereof, adverse to the
plaintiff, or (2) shall be made a party by the court if
that person is necessary for a complete determination
or settlement of any question involved therein; provided
no person who is immune from liability shall be made
a defendant in the controversy.’’ General Statutes
§ 52-102.
By its plain language, § 52-102 conditions the right
of a party to bring new parties into a pending action
upon his filing and the court’s granting of a motion for
permission to do so. The court is vested with authority
to control the process by which new parties are added
to pending actions to protect the interests of all other
parties, and of the court itself, in the fair and efficient
adjudication of all proper claims and defenses. A motion
to cite in notifies the court of the grounds upon which
the plaintiff seeks to summon additional parties to the
existing lawsuit. Woods v. Lavitt, 110 Conn. 668, 669,
149 A. 392 (1930). The proposed amended complaint
provides the basis for any judgment against the added
party. See id. A court’s order, pursuant to § 52-102,
permitting the joinder of the additional parties, autho-
rizes an expansion of a civil action that was previously
commenced. See Aqleh v. Cadlerock Joint Venture II,
L.P., 299 Conn. 84, 96, 10 A.3d 498 (2010).
In the present case, the plaintiff served the individual
defendants with a summons and one count complaint
that appeared, on their face, to initiate a new lawsuit.
The corporation was not named as a party defendant
in the new complaint. After the court granted the motion
to cite in, the plaintiff’s attorney took the one count
complaint, alleging only the negligence of the individual
defendants, and filed it with the court in lieu of the
proposed amended three count complaint that he had
previously sought and later obtained the court’s permis-
sion to serve and file.3 The service of such process
without prior judicial authorization under § 52-102 was
improper. We therefore conclude that the court prop-
erly dismissed the plaintiff’s claims against the individ-
ual defendants in the present action on the ground
that it lacked personal jurisdiction over them due to
insufficiency of service of process.
The judgment is affirmed.
1
The named defendant, Buttonwood Farm Ice Cream, Inc., is not the
subject of this appeal. We refer to it in this opinion as the corporation.
2
The court granted the individual defendants’ motion to dismiss on three
grounds: lack of subject matter jurisdiction, lack of personal jurisdiction,
and insufficiency of service of process. We will confine our discussion of
the court’s ruling to the ground asserted by the individual defendants in
their motion.
3
At oral argument before this court, the plaintiff’s attorney stated that
he pursued this course of action in anticipation that, if his motion to cite
in was not granted by the court, the court would allow him to file the
summons and complaint as a separate suit, presumably to avoid problems
with respect to the statute of limitations, which was due to expire July
31, 2013.