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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 Button 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 service 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 Buttonwood 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 corporation, 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 summons 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 orderto consolidate 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 defendants in his pending action against the corporation,

because the plaintiff had not yet been granted permission 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 ultimate legal conclusion and resulting [denial] of the

motion to dismiss will be de novo. . . . Factual findings 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, authorizes 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.Afterthe 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 permission 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 properly dismissed the plaintiff’s claims against the individual 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.