Opinion
DBDCV196029875S
05-22-2019
Bruce Taylor Heavy Equipment Repair and Emergency Vehicle Services, Inc. v. John Giano dba Casa Residential
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Krumeich, Edward T., J.
MEMORANDUM OF DECISION
Krumeich, J.
Defendant John Giano has moved to dismiss this action for lack of personal jurisdiction on the ground that he is not a resident of Connecticut and there is no basis for personal jurisdiction and also that service of process was not sufficient. For the reasons stated below, the Court has concluded it is proper to defer ruling on the motion to dismiss and to conduct a hearing after discovery related to defendant’s residence.
In the Complaint, plaintiff alleges that defendant is a resident of Connecticut d/b/a Casa Residential. Plaintiff alleges it made repairs to a machine at defendant’s jobsite in Newtown and at plaintiff’s shop in Brookfield for which defendant failed to pay. The marshal’s return of service stated that defendant was served at his usual place of abode in Southington.
In support of its motion to dismiss, defendant submitted an affidavit in which he stated he is a resident of South Carolina, not Connecticut, and appended a photocopy of his South Carolina driver’s license issued on August 17, 2018. Defendant also submitted a South Carolina vehicle registration issued on May 22, 2017, for a vehicle owned by John Mark Giano or Jeannine Giano with a South Carolina address, and an insurance identification card for the vehicle at that address.
Plaintiff objected to the motion to dismiss and filed copies of certain documents to show that defendant was a Connecticut resident and that the address where he was served was his usual place of abode in this state. Among the documents submitted was evidence that defendant’s business had a current Connecticut Home Improvement license and limited liability company registrations with the defendant listed at the Southington address. Plaintiff also submitted a copy of the amended complaint dated January 10, 2019 filed in an action entitled Giano v. United Ohio Ins. Co. et al., HHD-CV-17-6082666-S, in which Mr. Giano alleged he is a resident of Connecticut.
When the motion to dismiss initially was called on the short calendar, the Court determined that an evidentiary hearing was necessary to resolve the conflicting assertions by the parties and scheduled the hearing for May 21, 2019 at 10:00 a.m. Defendant also filed a request for a Conboy hearing. Although plaintiff objected to the hearing, counsel withdrew the objection. On May 21, 2019, neither counsel was prepared to go forward with the hearing and to present evidence, asserting that the other party bore the burden of proof. Plaintiff’s counsel indicated he planned to examine defendant at the hearing. Defendant’s counsel stated defendant was not present because he was a South Carolina resident. Both counsel urged the Court to decide the motion on the affidavit and documents submitted by their respective client. No evidence was submitted at the hearing and the Court closed the hearing. Neither counsel seemed to appreciate that the Court scheduled the hearing because the motion to dismiss could not be decided on the pending record which lacks conclusive proof of residency and required an evidentiary hearing to resolve the disputed issues presented.
Both counsel sought to avoid the hearing scheduled by the Court. Defendant’s counsel argued the defendant’s affidavits and exhibits thereto established that defendant was a resident of South Carolina so there was no need for defendant to testify. Plaintiff’s counsel referred to the exhibits he filed but made no offer of such exhibits at the hearing. None of the exhibits conclusively determine the issues raised by this motion, but they do confirm there is a bona fide dispute as to whether the site of service was defendant’s abode. At the hearing counsel will have to follow the rules of evidence, lay a proper foundation for evidence offered as exhibits and offer admissible testimony on the issues to be decided.
In Matthews v. SBA, Inc., 149 Conn.App. 513, 530 (2014), the Appellate Court stressed the importance of proper service of process to the Court’s jurisdiction: " ‘[S]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court’s exercise of [personal] jurisdiction over that party.’ ... Therefore, ‘[p]roper service of process is not some mere technicality.’ ... ‘[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 ... [A]n action commenced by such improper service must be dismissed.’ ... ‘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.’ ... There is a presumption of truth in matters asserted in the marshal’s return of service."
"Ordinarily, the defendant has the burden to disprove personal jurisdiction." Designs for Health, Inc. v. Miller, 187 Conn.App. 1, 6 (2019). The burden of proof is on defendant to counter the marshal’s return of service statement that defendant was served at his usual place of abode within the State: "Further, ‘[t]he Superior Court ... may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court’s exercise of personal jurisdiction ... When ... the defendant is a resident of Connecticut who claims that no valid abode service has been made upon her that would give the court jurisdiction over her person, the defendant bears the burden of disproving personal jurisdiction. The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer’s return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise.’ ... Whether a particular place is the usual place of abode of a defendant is a question of fact. Although the sheriff’s return is prima facie evidence of the facts stated therein, it may be contradicted and facts may be introduced to show otherwise." People’s United Bank, N.A. v. Purcell, 187 Conn.App. 523, 526 (2019) (citations omitted).
In the People’s Bank case, the Appellate Court upheld the trial court’s finding after an evidentiary hearing that defendant was properly served at his usual abode in this state despite evidence such as a driver’s license and tax records with another address: "... the defendant testified that he had not lived at 180 Palm Street for fourteen years and that his usual place of abode at the time of service was 86 Plainfield Street. When the defendant was asked to provide his name and address for the record, however, he provided two different addresses. Although the defendant submitted an affidavit, his driver’s license, tax records, and other documents to show that he no longer resided at 180 Palm Street, and that his place of abode at the time of service was 86 Plainfield Street, the court was not required to conclude that service was required to be made at that location ... In fact, ‘[o]ne may have two or more places of residence within a [s]tate ... and each may be a usual place of abode ... Service of process will be valid if made in either of the usual places of abode.’ " 187 Conn.App. at 527-28 (citations omitted).
Defendant has the burden of proving that he is not a resident of Connecticut and subject to personal jurisdiction, as asserted in the motion to dismiss, and that defendant was not subject to abode service under C.G.S. § 52-57(a) at the Southington address but must be served under the longarm statute under C.G.S. § 52-59b(c), as defendant contends. If defendant proves he is not a resident of this state, the burden shifts to plaintiff to submit evidence adequate to establish jurisdiction. Designs for Health, 187 Conn.App. at 6-7.
Section 52-57(a) provides: "... process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." The test under C.G.S. § 52-57 is place of residence in this state not domicile; if the site of service is defendant’s residence in this state abode service is sufficient to confer jurisdiction even if defendant has other residences or his domicile is out-of-state. See Clegg v. Bishop, 105 Conn. 564 (1927); Knutson Mtg. Corp. v. Bernier, 67 Conn.App. 768, 772 (2002).
Defendant’s affidavits concerning his South Carolina residence did not suffice to conclude the issue of whether the Southington address is his usual place of abode in this state. " ‘When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction’ unless sufficient evidence is introduced to prove otherwise ... Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607 n.9, 674 A.2d 426 (1996). ‘[A]ffidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists.’ ... Standard Tallow Corp. v. Jowdy, 56 [ (1983) ]." Knutson, 67 Conn.App. at 771. There is conflicting evidence concerning defendant’s Connecticut residence at the Southington address.
If defendant is a nonresident, plaintiff has the burden of showing process was served in a statutorily authorized manner: "[i]f the defendant challenging the court’s personal jurisdiction is a ... nonresident individual, it is the plaintiff’s burden to prove the court’s jurisdiction"; mere notice of the suit is not sufficient: "[a]lthough the defendants received notice of the suit against them, ‘[m]ere notice of an action is not sufficient to confer personal jurisdiction over a nonresident defendant ... Such jurisdiction over a nonresident requires statutory authorization.’ " Matthews, 149 Conn.App. at 529, 539 (citation omitted).
The trial court has discretion to defer ruling on a motion to dismiss until after an evidentiary hearing: "... [when] a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ... Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits ... An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding [on the basis of] memoranda and documents submitted by the parties ... In such circumstances, the court may also in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, [until] a full trial on the merits has occurred." Design for Health, 187 Conn.App. at 9 (citations omitted). Accord, Norris v. Trumbull, 187 Conn.App. 201, 210 (2019).
In Design Health, 187 Conn.App. at 11-12, the Appellate Court adopted the federal sliding scale for establishing a prima facie test for personal jurisdiction which mandates an evidentiary hearing when jurisdictional facts are in dispute, particularly when one of the parties requested an evidentiary hearing. This is not a motion that may be decided on the complaint alone or based on undisputed facts.
Here, there is a genuine factual dispute concerning whether the place where service was made is defendant’s usual place of abode in the state at the date of service so an evidentiary hearing is needed. See Caron v. Connecticut Pathology Group, P.C., 187 Conn. 555, 563 n.6 (2019); Conboy v. State, 292 Conn. 642, 652-53 (2009).
In order to have a meaningful hearing, plaintiff must be given the opportunity to conduct discovery as to defendant’s residence. The Court will therefore defer conducting an evidentiary hearing on the motion to dismiss until this discovery has taken place. See Giannoni v. Commissioner of Transportation, 322 Conn. 344, 350 (2016) ("[t]he trial court ‘may also in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery ...’ ").
To facilitate discovery relating to jurisdictional facts, the Court makes the following observations concerning the discovery contemplated before the hearing. Because it appears defendant comes to Connecticut to conduct his business, any deposition of plaintiff, his spouse or his companies may be conducted in this state. Plaintiff may also inquire and request documents from defendant and his companies that would typically include declaration of residence address such as employment or membership records, payroll or distribution records, tax returns and licenses. To the extent that defendant may reside with his spouse in this state evidence concerning spousal residence also would be subject to discovery from defendant and his spouse. The evidentiary hearing need not await discovery on the underlying merits of the suit because those facts do not appear to be intertwined with the issue of defendant’s residence at the date of service. The parties shall confer in good faith to schedule and facilitate any discovery and to schedule the hearing; the parties shall notify the Court when the motion to dismiss is ready to be scheduled for hearing and contact the case flow clerk to set the hearing date.
If this assumption is incorrect and deponents are out-of-state and will not agree to be deposed here, depositions may be taken by remote electronic means under P.B. § 13-30(g).
This assumes, of course, that defendant is not contesting that the underlying transaction occurred in this state or that his alleged conduct occurred here. Nothing herein shall preclude or delay discovery on the merits.