Opinion
CV106006025.
12-13-2012
Richard BRUCE v. Charles EDWARDS.
UNPUBLISHED OPINION
MARTIN, J.
FACTS
This action arises out of an alleged attack of the plaintiff, Richard Bruce, by a dog owned by the defendant, Charles Edwards, that occurred on the premises owned by the defendants, Irene Liu and Yu Dong Liu. On September 21, 2010, the plaintiff filed a six-count complaint against the defendants. In counts three and five, the plaintiff alleges statutory liability and in counts four and six, he alleges negligence against the defendants. Of note, the summons named defendant Yu Dong Liu as Xu Dong and the complaint named her as Xu Dong Liu; the marshal's return of service named her as Dong Xu. Specifically, in counts three, four, five and six of his complaint, the plaintiff alleges that on December 4, 2009, the plaintiff was lawfully on the defendants' premises at 243 Laurel Hill Avenue, Norwich, Connecticut as a tenant and was viciously attacked by a dog owned by Edwards, resulting in serious injury to the plaintiff.
Defendants Irene Liu and Yu Dong Liu filed a motion to dismiss the complaint as to counts three, four, five and six. Defendant Charles Edwards is nonappearing, thus, further mention of " the defendants" refers to Irene Liu and Yu Dong Liu collectively.
In the return of service attached to the complaint, state marshal Phil Leary states that he took the following steps to serve process on the defendants: On August 31, 2010, he served a true and attested copy of the original writ, summons, and complaint " with and in the hands" of Irene Liu at 243 Laurel Hill Avenue, Norwich, Connecticut. Additionally, he served process " at the usual place of abode" of " Dong Xu (with Irene Liu)" at 243 Laurel Hill Avenue, Norwich, Connecticut.
On July 12, 2012, the defendants filed a motion to dismiss the action against them on the grounds that the court lacks subject matter jurisdiction over Yu Dong Liu because she was not properly named in the underlying action and that the court lacks personal jurisdiction over Irene Liu and Yu Dong Liu due to insufficient service of process. The defendants filed a memorandum of law in support of the motion. On September 13, 2012, the plaintiff filed a memorandum in opposition. The motion was heard at short calendar on September 17, 2012.
DISCUSSION
" A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court ... The grounds which may be asserted in this motion [include] ... lack of jurisdiction over the subject matter ... lack of jurisdiction over the person ... and insufficiency of service of process." (Citation omitted.) Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). " [T]he well established notion [is] that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011). " The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ... Where, however ... the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001). " If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with couteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings ... If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ... or only evidence that fails to call those allegations into question ... the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citation omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).
" Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction ... Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011). " Where the [marshal's] return shows abode service in Connecticut, the burden rests on the defendant to prove insufficiency of service of process. That is, the defendant bears the burden that service was not made at his usual place of abode." (Internal quotation marks omitted.) Remondi v. Girard, Superior Court, judicial district of New London at Norwich, Docket No. FA 084107505 (April 15, 2008, Boland, J.) (45 Conn. L. Rptr. 307, 307).
In the present case, the defendants argue that the complaint against Yu Dong Liu should be dismissed for lack of subject matter jurisdiction because she was not properly named in the underlying action. As evidence, the defendants provided the affidavits of Irene Liu and Yu Dong Liu, and a copy of marshal Leary's return of service. The plaintiff counters that he made a circumstantial mistake in the spelling of Yu Dong Liu's name as it appeared on the summons and there can be no doubt that Yu Dong Liu was the intended party. The plaintiff submits as evidence a copy of the return of service, an affidavit by the plaintiff's counsel, a copy of a letter sent to the defendants by the plaintiff regarding his claim, a copy of a letter from the defendant's insurance company, a copy of a letter from Irene Liu to the plaintiff's counsel, a copy of tax records for property located at 243 Laurel Hill Avenue and a copy of the motion to reopen judgment of dismissal.
General Statutes § 52-123 provide: " No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court." Additionally, our Supreme Court " repeatedly has eschewed applying the law in such a hypertechnical manner so as to elevate form over substance." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 34, 848 A.2d 418 (2004). In Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 397, 655 A.2d 759 (1995), our Supreme Court endorsed a three-part test to determine " whether the error was a misnomer and therefore a circumstantial defect under § 52-123:(1) whether the proper defendant had actual notice of the institution of the action; (2) whether the proper defendant knew or should have known that it was the intended defendant in the action; and (3) whether the proper defendant was in any way misled to its prejudice." Id. (determined to be circumstantial error because defendant had notice of suit and it was clear which entity plaintiff sought to sue even when summons incorrectly named defendant). In Brennan v. Fairfield, 255 Conn. 693, 707, 768 A.2d 433 (2001), the court stated that " [w]hen the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant. This is in contradistinction to the case in which the plaintiff has misconstrued the identity of the defendant and has therefore named and served the wrong party." (Internal quotation marks omitted.) Id.
Pursuant to the case law above, this court's subject matter jurisdiction relies on a determination as to whether the plaintiff's misspelling of the name of the defendant Yu Dong Liu is a misnomer and thus, a circumstantial error. As notice is a key factor in this determination, the court must examine the evidence submitted as to the existence of such notice with regard to Yu Dong Liu.
As to the notice prong of the misnomer test, in order to find the mistake was a misnomer the proper defendant must have actual notice that the action has been instituted. Andover Limited Partnership I v. Board of Tax Review, supra, 232 Conn. at 397. If Yu Dong Liu was actually served and she knew that she was the intended defendant the court can exercise subject matter jurisdiction. See Brennan v.. Fairfield, supra, 255 Conn. at 707. In the present case, the defendants argue that the writ, summons and complaint failed to identify properly Yu Dong Liu and this is not a case of misnomer. Yu Dong Liu further argues that the defect is not curable because the plaintiff did not properly identify her when she was named as Xu Dong in the summons, and as Xu Dong Liu in the complaint. Yu Dong Liu argues that this defect is not curable as she was not sufficiently identified such that she knew she was the subject of this action. She further argues that even if the court were to find the mistake a misnomer, the cure of correcting this defect in the complaint is available only when a defendant has been served and she is aware that she is the intended defendant. In support of her argument she provides as evidence, a signed and sworn affidavit in which she avers, inter alia, that she has never been known as Dong Xu, that she never received the writ of summons and complaint from the plaintiff in August 2010, that she was unaware of the current action until informed by the plaintiff in December 2010, and that 243 Laurel Hill Avenue in Norwich is not her usual place of abode.
The plaintiff argues in response that the mistake was a circumstantial error and pursuant to § 52-123 it is clear that the plaintiff intended to sue his landlords, the owners of the property where he was injured. The plaintiff further argues Yu Dong Liu had to know she was the intended defendant since the co-owner of the property, Irene Liu, was named as a codefendant. The marshal's return of service indicates that " Dong Xu" was served at the usual place of abode, 243 Laurel Hill Avenue, Norwich, by leaving a copy of the writ, summons and complaint with Irene Liu. The plaintiff provided evidence in opposition to Yu Dong Liu's affidavit with respect to service of process. The plaintiff submits an affidavit from counsel stating, inter alia, that a letter addressed and mailed to the Lius at 243 Laurel Hill Avenue was never returned as undeliverable nor was there any notification that the addressees were not at the address indicated, that he received a letter from Irene Liu dated February 1, 2010, regarding this matter that indicated 243 Laurel Hill Avenue as the return address, that the city of Norwich street card for property at 243 Laurel Hill Avenue indicates the owners of record as Irene Liu and Yu Dong Liu and their address is listed as 243 Laurel Hill Avenue and that a pleading was mailed to the Lius at 243 Laurel Hill Avenue, Norwich on May 23, 2012 and this mailing was never returned to counsel's office.
" A motion to dismiss may ... raise issues of fact and would, therefore, require a ... hearing [to determine the facts] ... [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 ... In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses ... When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." (Citations omitted; internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503, 459 A.2d 503 (1983). " [W]here 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." (Citations omitted; internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. at 652-53.
The evidence provided by the plaintiff in response to the defendants' affidavits raises a genuine issue of material fact with regard to notice and whether Yu Dong Liu was " actually served." This evidence is relevant not only to the question of notice/service of process with regard to subject matter jurisdiction as to Yu Dong Liu, but is also dispositive as to the issue of personal jurisdiction raised by both defendants on the ground of insufficient service of process.
As discussed above, Yu Dong Liu avers in her affidavit that she never received a copy of the summons and complaint from the plaintiff, that she never lived at that address and that she did not learn of the action against her until December 2010. The plaintiff counters with evidence showing that Yu Dong Liu was served, that correspondence sent to her at that address was not returned nor was there any indication that it was undeliverable and that city of Norwich tax records show 243 Laurel Hill Avenue as her address. The plaintiff has submitted sufficient evidence to bring into question the defendants' sworn representations. See Conboy v. State, supra, 292 Conn. at 652-53. (court granted motion to dismiss when plaintiff failed to counter defendant's affidavit attesting to her usual place of abode.) This is sufficient to raise a genuine issue of material fact with regard to the notice required by the misnomer test set out in Andover Limited Partnership I v. Board of Tax Review, supra, 232 Conn. at 397, and also raises a genuine issue of material fact concerning notice and service of process with regard to the defendants' motion to dismiss as to personal jurisdiction over Yu Dong Liu.
As to Irene Liu, this same genuine issue of material fact is raised with regard to service of process. The marshal's return indicates that Irene Liu was served in hand at 243 Laurel Hill Avenue. Irene Liu attests in her affidavit that she never received the writ, summons or complaint from the plaintiff, that she lives in New York, that she never lived at 243 Laurel Hill Avenue, that 243 Laurel Hill Avenue is not her usual place of abode and that she did not learn of the action against her until December 2010, when she was informed by her sister. The plaintiff countered with evidence showing that Irene Liu was served, that correspondence sent to her at that address was never returned nor was there any indication that mail sent to that address was undeliverable to her, that city of Norwich tax records indicate 243 Laurel Hill Avenue is her address, and that the plaintiff's counsel received correspondence from Irene Liu concerning this matter that shows 243 Laurel Hill Avenue as the return address. The plaintiff has submitted sufficient evidence to bring into question the defendants' sworn representations. See Conboy v. State, supra, 292 Conn. at 652-53.
Evidence submitted by the parties in the present action raises a genuine issue of material fact with regard to the court's subject matter jurisdiction in the case of Yu Dong Liu as well as the court's personal jurisdiction over both defendants, therefore, an evidentiary hearing is required pursuant to Standard Tallow Corp. v. Jowdy, supra, 190 Conn. at 56.
CONCLUSION
For the foregoing reasons, an evidentiary hearing is ordered. A ruling on the motion to dismiss will be deferred until after the evidentiary hearing.