Opinion
No. HHD CV 07 5013480
August 4, 2008
MEMORANDUM OF DECISION
I. FACTS AND PROCEDURAL HISTORY
On September 13, 2007, the plaintiff, CSGA, LLC, filed a complaint to recover unpaid monies resulting from the defendant's alleged breach of a credit card agreement. The plaintiff seeks monies in the amount of $7,828.73, which represent an unpaid principal of $5,345.00, plus interest, calculated at a rate of 23.99% per annum, in the amount of $2,483.73. The complaint alleges that the plaintiff had made demand upon the defendant for payment of monies due and owed under the agreement, but the defendant failed, neglected or refused to pay.
On November 6, 2007, the defendant filed a motion to dismiss on the grounds that service was improper. The defendant states that service did not meet the requirements of General Statutes § 52-57(a), which requires service in this state to be either served upon the defendant, or at the defendant's usual place of abode. In support, the defendant submitted a memorandum of law and the affidavit of Fred Henirkson, who resides at 1751 Main Street, Glastonbury, Connecticut.
In response, the plaintiff filed an objection to the motion to dismiss on December 5, 2007. Likewise, the plaintiff submitted a memorandum of law, as well as the marshal's return of service. In its objection, the plaintiff argues that the defect in service in the present matter is merely circumstantial and curable under General Statutes § 52-123.
The parties were heard at oral argument on June 2, 2008.
DISCUSSION
"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 . . . A motion to dismiss tests, inter alia, whether on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005). "The standard governing a trial court's review of a motion to dismiss is well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Davis v. Environmental Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4007475 (January 26, 2007, Tobin, J.).
"When issues of fact are necessary to the determination of the court's jurisdiction, [however] due process requires a trial like hearing be held, in which an opportunity is provided to present evidence . . ." (Internal quotation marks omitted.) Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 861 A.2d 1160 (2004). "Affidavits are insufficient to determine factual issues raised on a motion to dismiss unless . . . they disclose that no genuine issues as to a material fact exists." (Internal quotation marks omitted.) Adolphson v. Weinstein, 66 Conn.App. 591, 594 n. 3, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002).
In the present case, the defendant moves to dismiss on the grounds that the court lacks personal jurisdiction over her because the plaintiff failed to serve process at the defendant's usual place of abode. Pursuant to § 52-57(a), service is proper only when served upon the defendant, or at the defendant's usual place of abode. The defendant argues that abode service at 1751 Main Street, Glastonbury, Connecticut was improper because the defendant does not presently reside, nor has ever resided at that address. In support, the defendant submitted the affidavit of Fred Henirkson, who resides at 1751 Main Street. In his affidavit, Mr. Henirkson avers that the defendant does not now nor has ever resided at 1751 Main Street, Glastonbury, Connecticut.
In response, the plaintiff fails to offer any evidence, outside of the marshal's return, to contradict the affidavit submitted by the defendant. Rather, the plaintiff argues that although service was not made at the defendant's abode, the mere fact that the address of the defendant may be incorrect does not warrant dismissal. The plaintiff claims that such a defect is considered circumstantial under § 52-123 and therefore, is not fatal to the court's jurisdiction over the defendant.
Proper service of process is a prerequisite to a court's exercise of in personam jurisdiction over a party. Tarnopol v. Connecticut Sitting Council, 212 Conn. 157, 166, 561 A.2d 931 (1989); see also Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003) (stating that one who is not served with process does not have the status of a party to the proceeding and a court does not have jurisdiction over persons who have not been made parties). Section 52-57(a) provides: "Except as otherwise provided, 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 chief purpose of § 52-57(a) is to ensure actual notice to the defendant that the action is pending. Clover v. Urban, 108 Conn. 13, 16, 142 A. 389 (1928); see also Fine Homebuilders v. Diane Perrone, 98 Conn.App. 852, 911 A.2d 1149 (2006) (stating that service must be effectuated in a way to provide actual notice). "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.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).
"If a defendant challenges the court's personal jurisdiction, the plaintiff bears the burden of proving the court's jurisdiction . . . This general rule is different, however, with respect to determining whether the court has jurisdiction over a defendant who is served personally or through abode service. In those circumstances . . . 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 . . ." (Citations omitted; internal quotation marks omitted.) Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825-26, 917 A.2d 959 (2007).
"The sheriff's return is prima facie evidence of the facts stated therein . . ." (Internal quotation marks omitted.) Shawmut Bank Connecticut v. Cook, Superior Court, judicial district of Middlesex, Docket No. CV 94 73915 (February 23, 1995, Walsh, J.). "Where the sheriff'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 of proving that service was not made at his usual place of abode." (Citations omitted.) Id.
"`Abode' for purposes of General Statutes § 52-57(a) is the place where the defendant would most likely have knowledge of service of process and is generally recognized as the place where he is living at the time of service . . ." (Citation omitted.) Grayson v. Wofsey, Rosen, Kweskin Kuriansky, 40 Conn.Sup. 1, 3, 478 A.2d 629 (1984). Accordingly, our courts are reluctant to recognize abode service where process is not left for the defendant at the place he is living at the time service is made, even in cases where the defendant receives actual notice of the action. See Hibner v. Breuning, 78 Conn.App. 456, 463 (2003) (abode service is not effective if it is left at an address that is not the usual address of the party to be served); East Lyme v. Huntington, 22 Conn.Sup. 288, 169 A.2d 752 (1961) (determining dwelling where defendant maintained an office is not equivalent of defendant's usual place of abode).
The defendant has provided the court with evidence showing that 1751 Main Street, Glastonbury, Connecticut is not and never was the defendant's abode. The court accepts the affidavit of Fred Henirkson, who resides at 1751 Main Street, Glastonbury, Connecticut, in which he avers that the defendant does not now nor has ever resided at that address. The plaintiff concedes that the marshal's return, while asserting that he left service of process at the usual place of abode of Marion Cosgrove, indicates that the service was left with the Donna Henirkson, caregiver and niece of Marion Cosgrove. On this basis alone, the plaintiff claims the court can find actual notice and as such, any defects in service in the present case can be cured under § 52-123.
Section 52-123 provides: "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 case may be rightly understood and intended by the court." Section 52-123 "replaces the common law rule that deprived courts of . . . jurisdiction whenever there was a misnomer or misdescription in an original writ, summons or complaint." Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 396-97, 655 A.2d 759 (1995). Our Supreme Court has repeatedly held that § 52-123 "is used to provide relief from defects in the text of the writ itself but is not available to cure irregularities in the service or return of process." Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 434, 559 A.2d 1110 (1989); see also Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004).
The plaintiff cites Andover Ltd. Partnership v. Board of Tax Review, supra, 232 Conn. 392, in support of its position that any defect in the present matter is not fatal to the court's jurisdiction over the defendant. In Andover, however, the court was not faced with the issue of abode service on a party at an address that was not the party's abode, rather, the court was faced with the issue of whether service was proper on the town if the plaintiff failed to name the town as a defendant in its citation, yet, properly served the citation on the town. The court held that under § 52-123, such a defect was merely circumstantial and service was not defective. In holding that the failure to properly name the town was merely a circumstantial defect, the court stated that the "town implicitly recognized that it was the proper defendant by accepting service, appearing in the action, answering the complaint and otherwise acting as the defendant." Id., 400. The court further stated that the town was "actively involved in filing documents with the court and in attempting to negotiate a settlement with the plaintiff . . ." Id. Thus in Andover, while the town was not properly named, service was itself proper.
The plaintiff only provides the court with the relevant case law and then, without more, asserts that the allegations conform to the necessary requirements.
In contrast to Andover, there is no evidence that the defendant accepted service, and the record is clear that she never answered the complaint or otherwise act as the defendant. With the exception of the exhibits proffered to the court, the plaintiff presented no evidence at the hearing on this motion to establish that the defendant received actual notice or that Ms. Henirkson was legally obligated to accept notice on behalf of the defendant. As such, the facts of the present case are substantially similar to the facts in National Industrial Bank of Connecticut v. Juzwic, Superior Court, judicial district of New London at Norwich, Docket No. 094048 (February 22, 1991, Axelrod, J.) [ 3 Conn. L. Rptr. 305]. In National Industry, the defendants filed a motion to dismiss for lack of personal jurisdiction on the grounds that service was made at an address that is not their place of abode. In support, the defendants submitted an affidavit attesting to the fact that they do not live at the address at which abode service was made. The court accepted the defendants' affidavit regarding their abode and the abode service of process and held that service was not proper since process was not served at the defendants' abode. The court further stated that service of process at a place which is not the defendants' abode is a substantive defect, as the defendants would not reasonably be expected to receive process left at an abode other than their own.
The court agrees with the analysis in Juzwic and in light of the undisputed affidavit in support of the defendant's motion to dismiss, the court finds that the defendant has sustained her burden. The plaintiff has failed to provide the court with evidence to contradict that provided by the defendant, nor has the plaintiff provided the court with any case law supporting the argument that abode service not made at the party's abode can be cured under § 52-123. Given that the defendant has never resided at 1751 Main Street, Glastonbury, abode service at that location is ineffective and cannot be cured by § 52-123.
Accordingly, the defendant's motion to dismiss for lack of personal jurisdiction is granted.