Opinion
No. CV 099-4044709 S
February 17, 2010
MEMORANDUM OF DECISION
The plaintiffs, James Buckley Heath, John Buckley, Priscilla L. Hamill, Pamela Palmer, Elizabeth H. Harmon and Timothy Heath, filed the three-count complaint in this action on June 10, 2009 against the following five defendants; Benjamin W. Heath, Bank of America, Cameron O. Smith, James R. Joyce and James L. Buckley.
On August 20, 2009, the plaintiffs withdrew their claims against James R.
In count one of the complaint, the plaintiffs allege the following facts. The plaintiffs are the children of Aloise Buckley Heath (decedent), who died in 1967 in Connecticut. Benjamin W. Heath, the defendant who filed this motion, is the husband of the decedent and will be referred to herein as the defendant. Pursuant to her will, the decedent created a testamentary trust and the defendant is being sued in his capacity as a fiduciary and a trustee for that trust. The assets of the trust consist of interests in oil, gas and mineral rights (royalty interests). The decedent had previously entered into a trust indenture, known as the Hembdt Trust, and had deposited the same royalty interests therein. The terms of the Hembdt Trust provided that, upon the decedent's death, the royalty interests would pass to her legal representative, heirs at law or next of kin. The plaintiffs herein were the decedent's heirs at the time of her death.
Notwithstanding these provisions, the royalty interests passed to the decedent's estate and were disposed of in accordance with her will. As a result, the defendant, in his capacity as a fiduciary for the testamentary trust, breached his fiduciary duty to the plaintiffs by misappropriating and disposing of a portion of the royalty interests. Counts two and three also incorporate foregoing facts and add claims of unjust enrichment and misappropriation of funds, respectively.
The defendant filed the motion to dismiss now before the court on July 17, 2009, on the grounds that the court lacks personal jurisdiction over him under the applicable longarm statute and because he was not properly served with process. The defendant's motion was accompanied by a memorandum of law and his own affidavit. The plaintiffs filed their memorandum of law in opposition to the motion to dismiss on August 24, 2009, arguing that process was effectively served on the defendant and that the court's exercise of personal jurisdiction over him is proper in the present case. That memorandum is accompanied by a supporting affidavit made by James Buckley Heath along with the return of service form made by the state marshal who executed the service of process as well as a supplemental return of service.
"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." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Internal quotation marks omitted.) Golodner v. Women's Center of Southeastern C'onnecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007). "When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. In this regard, 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.) State v. Marsh McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008). "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 . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
LONGARM STATUTE
The defendant first argues that the motion to dismiss should be granted because he is not a resident of Connecticut and the court does not have personal jurisdiction over him under General Statutes § 52-59b, the applicable Connecticut long arm statute. Specifically, he argues that he has neither transacted business within the state of Connecticut related to the trust nor has he engaged in any tortious conduct within the state and, therefore, has not met the requirements necessary to confer personal jurisdiction. The plaintiffs do not dispute that the defendant is not a Connecticut resident. Instead, they argue that the defendant's actions in his capacity as trustee for the testamentary trust satisfy the requirements of the long arm statute and, therefore, the court has personal jurisdiction over him.
"When a defendant files a motion to dismiss challenging the court's jurisdiction, a two-part inquiry is required. The trial court must first decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." (Internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996). "If a challenge to the court's personal jurisdiction is raised by a defendant, either by a foreign corporation or by a nonresident individual, the plaintiff must bear the burden of proving the court's jurisdiction." Id., 607.
Pursuant to the relevant portion of General Statutes § 52-59b(a), Connecticut courts "may exercise longarm jurisdiction over any nonresident individual . . . who in person or through an agent: (1) Transacts any business within the state; [or] (2) commits a tortious act within the state . . ." In the present case, in his affidavit, the defendant attests that he has been a resident of California since 1979, has not transacted any business having to do with the testamentary trust at issue within the state of Connecticut since that time, and that the royalty interests are not "subject to the jurisdiction of any court in the state of Connecticut." In turn, the complaint and the affidavit of James Buckley Heath state that the defendant was, and is presently, acting in the capacity of a trustee of the testamentary trust. Furthermore, James Buckley Heath attests that the will and trust of the decedent continue to be subject to probate administration in the state of Connecticut and that the defendant continues to serve as a co-trustee of the decedent's trust. Furthermore, the complaint also indicates that the testamentary trust came into existence in the state of Connecticut as the decedent died in this state. While the defendant argues that this fact is insufficient in scope and too distant in time to confer personal jurisdiction, Connecticut courts have "construe[d] the term `transacts any business' to embrace a single purposeful business transaction." Zartolas v. Nisenfeld, 184 Conn. 471, 474, 440 A.2d 179 (1981). The defendant's alleged actions as a trustee of the testamentary trust, therefore, constitute a transaction of business within the meaning of § 52-59b(a)(1). See United States Trust Co. v. Bohart, 197 Conn. 34, 39-40, 495 A.2d 1034 (1985) (holding that trust beneficiaries and their guardian had sufficient contacts with Connecticut to confer personal jurisdiction over them where they "were residents of Connecticut at the time the trust was created . . . [t]he trust agreement specifically provided that the trust was to be administered pursuant to Connecticut law and that an accounting action would be litigated in Connecticut").
Second, the plaintiff alleges that the defendant committed tortious acts within the state in that he allegedly breached his fiduciary duty as a trustee to a Connecticut trust. The complaint alleges, specifically, that the defendant was a trustee of a trust that, by implication, came into existence in this state upon the decedent's death, and, in that capacity, he breached his fiduciary duty by "misappropriating royalty interests and disposing of same in a manner contrary to the terms of the Hembdt Trust, by failing to account for and repay all sums properly due and owing to the plaintiffs." Furthermore, the complaint alleges that the defendant transferred the royalty interests to a separate trust and never advised or disclosed the terms of the Hembdt Trust to the plaintiffs, nor advised them of their rights under that trust. Our Appellate Court, in Gardner Heights Health Care Center, Inc. v. Korolyshun, 117 Conn.App. 745, 747, 982 A.2d 186 (2009), has specifically recognized that "a claim breach of fiduciary duty . . . is a tort claim." As such, since the defendant allegedly committed the torts of breach of fiduciary duty and misappropriation of assets from a Connecticut-created trust, this court has personal jurisdiction over him under § 52-59b(a)(2).
This court's assumption of personal jurisdiction over the defendant is consistent with federal due process considerations. The federal due process clause permits state courts to exercise in personam jurisdiction over a nonresident corporate defendant that has "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." (Internal quotation marks omitted.) International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In regard to this standard, our Supreme Court has concluded that "[e]ither specific jurisdiction or general jurisdiction can satisfy the constitutional requirement of sufficient minimum contacts between the defendant and the forum. A state court will have specific jurisdiction over a nonresident defendant whenever the defendant has purposefully directed its activities at residents of the forum . . . and the litigation [has] resulted from alleged injuries that arise out of or relate to those activities." (Citations omitted; internal quotation marks omitted.) Thomason v. Chemical Bank, 234 Conn. 281, 287, 661 A.2d 595 (1995).
In the present case, the plaintiffs' causes of action for breach of fiduciary duty, misappropriation of funds and unjust enrichment arise directly from the defendant's contact with the state of Connecticut, namely, his alleged conduct relating to the formation and administration of the testamentary trust and the royalty interests related thereto. Because the causes of action arise out of the conduct of the defendant in this state, this court's exercise of personal jurisdiction over him is proper and does not offend federal due process considerations. Therefore, the court has personal jurisdiction over the defendant under § 52-59b.
SERVICE OF PROCESS
The defendant also argues that, even if the court has personal jurisdiction over him under the long arm statute, personal jurisdiction cannot be conferred due to insufficient service of process. Specifically, in his affidavit, the defendant attests that he did not receive process in this action either personally or by certified mail. The plaintiffs respond that the marshal's returns of service provide evidence that he complied with the applicable service provisions and that strict compliance with the statutory provisions governing service of process are all that is necessary to confer personal jurisdiction; the defendant need not actually receive the process so long as the proper statutory procedures are followed.
"[A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). "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." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). "[I]f process is correctly served . . . [under the requisite statutory provisions] the Connecticut court has personal jurisdiction over a nonresident defendant in an action brought under the long-arm statute." (Internal quotation marks omitted.) Ruocco v. Metropolitan Boston Hockey League, Superior Court, judicial district of New Haven, Docket No. CV 07-4024835S (December 7, 2007, Robinson, J.); Anderson v. Schibi, 33 Conn.Sup. 562, 566, 364 A.2d 853 (1976). When, as in the present case, "jurisdiction is based upon constructive service, jurisdiction cannot arise solely from the acts recited in the return . . . If the defendant challenging the court's personal jurisdiction is a . . . nonresident individual, it is the plaintiff's burden to prove the court's jurisdiction . . . Thus, once the defendant contested personal jurisdiction in the present case, it was the plaintiff's burden to produce evidence adequate to establish such jurisdiction." (Citations omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co, supra, 282 Conn. 515-16.
Pursuant to General Statutes § 52-59b(c), process shall be served on a nonresident defendant "by the officer to whom the same is directed upon the Secretary of the State by leaving with or at the office of the Secretary of the State . . . a true and attested copy thereof, and by sending to the defendant at the defendant's last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State." The plaintiffs have offered three exhibits in support of their argument that service of process was proper. First, they submitted an affidavit of James Buckley Heath in which he states that the defendant, who is his father, resides in California at 2124 Vista Dorado in Newport Beach, and that this "has been his home residence for a substantial period of time." Second, the plaintiffs offered the state marshal's initial return of service, in which the marshal attests that on June 3, 2009, he served the defendant "by leaving a true and attested copy" of the process "at the office of the Secretary of State," and by sending a true and attested copy of the process to the defendant via certified mail, return receipt requested to 2124 Vista Dorado, Newport Beach, California. Third, the plaintiffs submitted a copy of the marshal's supplemental return of service to which he attached the signed return receipt indicating that process was delivered to the above address on June 8, 2009.
At no point, either in his motion to dismiss or in his affidavit, does the defendant contend that the address to which the marshal sent the process was not the defendant's address. Furthermore, he does not offer any evidence to contest that the process was actually delivered to that address, as shown by the return receipt.
According to the text of General Statutes § 52-59b(c), actual receipt of the service of process by the defendant is unnecessary in order to comply with the statutory service requirements. As stated by our Supreme Court, "[t]his statute provides for the officer to serve a true and attested copy of the complaint upon the secretary of the state and to send to the defendant, by registered or certified mail, postage prepaid, a like true and attested copy with an endorsement thereon of the service upon the secretary addressed to the defendant at his last-known address. The requirement that the copy be mailed to the defendant at his `last-known address' does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it . . . Notice of this nature is adequate whether or not actually received by the addressee." (Citations omitted; internal quotation marks omitted.) D'Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 171-72, 455 A.2d 833 (1983).
In the present case, the marshal's returns of service indicate that the marshal complied with both of these provisions; the returns indicate that the marshal properly served process on the Secretary of State and mailed the process to the defendant via certified mail, return receipt requested, to the defendant's address, as known by his son, and that it was delivered to that address. Thus, the plaintiffs have met their burden of showing the validity of constructive service under § 52-59b, and the defendant has failed to offer any evidence to the contrary. Accordingly, the court has personal jurisdiction over the defendant under § 52-59b(c).
Since the defendant has been properly served with process, and personal jurisdiction over the defendant has been properly effectuated under the Connecticut longarm statute in compliance with federal due process standards, this court has jurisdiction over the defendant in this matter.
The court hereby denies the defendant's motion to dismiss.