Opinion
HHDCV186096398S
01-14-2019
Paul LAIUPPA v. Mary MORITZ
UNPUBLISHED OPINION
OPINION
MATTHEW DALLAS GORDON, J.
This is a negligence action in which the plaintiff, Paul Laiuppa, alleges that he was injured on June 21, 2016, when the defendant, Mary Moritz, negligently drove her vehicle directly into the path of his vehicle. The defendant has filed a motion to dismiss the plaintiff’s complaint asserting that because the plaintiff never effectuated proper service of process, the court lacks jurisdiction. The plaintiff responds that service of process was proper under the particular facts and circumstances of this case, and that even if the service of process was technically deficient, the court nevertheless retains jurisdiction because the defendant received actual notice of the plaintiff’s lawsuit. For the reasons stated herein, the court concludes that the plaintiff’s service of process was deficient, and that the court therefore lacks jurisdiction over the defendant and the plaintiff’s claims against her.
Facts and Procedural History
The marshal’s return of service indicates that the marshal attempted to effectuate service on the defendant on June 18, 2018, by leaving a true and attested copy of the writ, summons and complaint at 168 Turkey Hills Road in East Granby, Connecticut, which the marshal described as the defendant’s usual place of abode. In support of her motion to dismiss, the defendant has submitted an affidavit by Patricia Vinci averring that Vinci was granted power of attorney for the defendant on July 16, 2002, for health reasons, and that the defendant has not resided at the 168 Turkey Hills Road address since December 19, 2017. According to Vinci’s affidavit, the defendant was hospitalized on December 19, 2017, and was subsequently admitted to a nursing home facility in Windsor, Connecticut on December 22, 2017. Vinci’s affidavit also states that on January 26, 2018, the defendant was admitted to The Village at Waterman Lake in Greenville, Rhode Island, and that the defendant has resided there ever since.
The marshal’s return also states, "I also checked with the East Granby Town Assessor’s Office [sic] found the defendant owns the above residence."
According to Vinci’s uncontested affidavit, the defendant has not resided in or returned to the state of Connecticut since moving to Rhode Island on January 26, 2018, and that on June 8, 2018 (ten days prior to the marshal’s attempted abode service on June 18, 2018), the defendant sold the 168 Turkey Hills Road property. Vinci’s affidavit also avers that the defendant never received actual notice of the plaintiff’s lawsuit, and that Vinci first learned of the lawsuit when she received a letter from the defendant’s insurance carrier on July 13, 2018.
The defendant submitted a certified copy of a warranty deed from the East Granby Assessor’s Office confirming the defendant’s sale of the Turkey Hills Road property.
The court concludes, based on these uncontested facts, that the marshal failed to make proper abode service upon the defendant when he left a copy of the writ, summons and complaint at the Turkey Hills Road property on June 18, 2018, because the defendant had not resided at that property since at least January 26, 2018, when she moved to Rhode Island. The court also concludes that because the service of process was deficient, the court lacks jurisdiction and must therefore grant the defendant’s motion to dismiss.
Legal Standard
A motion to dismiss is the proper vehicle for any party who wishes to contest the court’s jurisdiction over the person. "[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.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
Practice Book § 10-30 provides in pertinent part: "The motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person ... (4) insufficiency of process, and (5) insufficiency of service of process." "[A] defect in process ... implicates personal jurisdiction ... [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 ... The jurisdiction that is found lacking ... is jurisdiction over the person ..." (Internal quotation marks omitted.) Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (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 omitted; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). "[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." (Internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 101-02 (1999). "[A]ny defendant, wishing to contest the court’s [personal] jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002).
The defendant filed an appearance on June 22, 2018, and filed the motion to dismiss less than 30 days later, on July 31, 2018.
"[I]n ruling on a motion to dismiss, the trial 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.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). "The motion to dismiss ... admits all facts which are well pleaded ... however ... [where] the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ..." (Footnote omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001). "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." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 833, 826 A.2d 1102 (2003); See also First Merchants Group Ltd. Partnership v. Fordham, 121 Conn.App. 135, 142-43, 994 A.2d 289, 295 (2010).
At oral argument regarding the defendant’s motion to dismiss, the court granted the plaintiff’s request for additional time to engage in further discovery regarding the facts and circumstances surrounding the plaintiff’s attempted service of process. The court also indicated that the plaintiff would be afforded the opportunity to present any evidence gleaned through discovery at an evidentiary hearing to address the jurisdictional issues presently before the court. The plaintiff subsequently contacted the court and indicated, through counsel, that an evidentiary hearing was not required or requested, and that the court should proceed to rule on the defendant’s motion to dismiss based on the evidence already submitted.
Analysis
General Statutes § 52-57(a) provides, in relevant part, that "process in any civil action shall be served by leaving a true and attested copy ... with the defendant, or at his usual place of abode, in this state." "[W]hether a particular place is the usual place of abode of a defendant is a question of fact. Although the sheriffs return is prima facie evidence of the facts stated therein, it may be contradicted and facts may be introduced to show otherwise." (Internal quotation marks omitted.) Tax Collector v. Stettinger, 79 Conn.App. 823, 825, 832 A.2d 75 (2003). "[A] defendant who contests the facts stated in the return bears the initial burden of disproving personal jurisdiction. (Emphasis in original.) Jimenez v. DeRosa, 109 Conn.App. 332, 341, 951 A.2d 632 (2008). If the defendant can show that the officer serving the process "simply left the papers at a place where the defendant[s] did not live, service would not have been effective and jurisdiction would not have vested in the court." Hibner v. Bruening, 78 Conn.App. 456, 463, 828 A.2d 150 (2003).
In the present case, the marshal’s return of service indicates that the marshal "made due and legal service of the within original Writ, Summons Complaint, and Demand for Relief, by leaving a verified true and attested copy at the usual place of abode of the within named defendant ... [a]t 168 Turkey Hills Road, East Granby." According to the return, abode service was the only manner of service attempted. This attempted abode service was insufficient to confer the court with jurisdiction because the defendant was no longer residing at the Turkey Hills Road property at the time of the attempted service, and was no longer a Connecticut resident. See Jimenez v. DeRosa, supra, 109 Conn.App. 332 ("A proper officer serving process must comply with the provisions of [General Statutes] § 52-57(a), which require that process be served by leaving it with the defendant, or at his usual place of abode ... Abode service is not effective if it is left at an address that is not the usual address of the party to be served, and an action commenced by such improper service must be dismissed" [internal quotation marks omitted]).
In Jimenez, the Appellate Court affirmed the trial court’s dismissal of the plaintiffs’ negligence complaint based on insufficient service of process because the defendant was served at an address where he no longer resided. Similar to the arguments advanced by the plaintiff in this case, the plaintiff’s in Jimenez argued that the marshal’s abode service was sufficient because the address was listed as the defendant’s address with several governmental agencies, and because the marshal believed the address to be correct based on information obtained from the police accident report, the Department of Motor Vehicles, the Town Clerk’s Office, the Registrar of Voters and the Internet. See Jimenez v. DeRosa, Superior Court, judicial district of New Haven, Docket No. CV-03-0474948, 2006 WL 2578776, *3 (August 23, 2006, Skolnick, J.) , aff’d, Jimenez v. DeRosa, supra, 109 Conn.App. 337. The Appellate Court rejected this line of reasoning noting that, "[t]he Superior Court has no authority to render a judgment against a person who was not properly served with process ... Without challenging this fundamental principle of law, the plaintiff’s argue that the trial court misapplied it under the circumstances of this case because (1) abode service was proper in light of the defendant’s failure to inform government agencies that he was no longer a resident at the Northford address, and (2) the defendant had actual timely notice of the negligence action, both at its inception and after the rendering of the default judgment. We are not persuaded." (Internal citation omitted.) Jimenez v. DeRosa, supra, 109 Conn.App. 337. With regard to the Jimenez plaintiffs’ first contention, the court concluded that it could not be sustained in light of Hibner v. Bruening, 78 Conn.App. 456, 463, 828 A.2d 150 (2003), which held that "for purposes of effective abode service, an address on file with a government agency, in and of itself, [can] not establish a party’s usual place of abode." Jimenez v. DeRosa, supra, 109 Conn.App. 339. Moreover, as to the plaintiffs’ second argument that the court retained jurisdiction because the defendant had received actual notice, the court reasoned that although "if a putative party can be shown to have been evading service of process, notice of a complaint coupled with good faith attempted service is sufficient to confer jurisdiction," the plaintiffs had failed to meet their burden of establishing that the defendant had engaged in conduct demonstrating an attempt to evade service of process. (Internal quotation marks omitted.) Id., 339-41. According to Jimenez, "Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 459 A.2d 503 (1999), sets forth the fundamental principle governing proof of disputed issues of personal jurisdiction. There, our Supreme Court stated: Placing the burden on the plaintiff to prove contested factual issues pertaining to jurisdiction is in accord with rulings in other states which have addressed the same question ... When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction." (Emphasis in original; internal quotation marks omitted.) Id.
The court concludes, based on Jimenez, that the defendant has met her initial burden of proving that the 168 Turkey Hills Road property was not her usual place of abode on June 18, 2018, because she had not physically resided at that property since December 19, 2017, and because she had sold the property on June 8, 2018, ten days prior to the attempted service. Moreover, the plaintiff has failed to provide any evidence that the defendant was evading service of process. Thus, it is immaterial that the plaintiff alleges that the defendant had actual notice of the present action. See Bove v. Bove, 93 Conn.App. 76, 82, 888 A.2d 123, cert. denied, 277 Conn. 919, 895 A.2d 788 (2006) ("Notice of a complaint coupled with good faith attempted service is sufficient to confer jurisdiction where a party is evading service of process" [internal quotation marks omitted]). Although the court afforded the plaintiff an opportunity to engage in additional discovery regarding these issues, and to present additional relevant information to the court at an evidentiary hearing, the plaintiff declined that opportunity. The court therefore finds that the plaintiff has failed to rebut the evidence presented by the defendant that jurisdiction is lacking based on the insufficiency of the service of process. See Jimenez v. DeRosa, supra, 109 Conn.App. 341 ("Standard Tallow Corp. imposes on the plaintiffs the burden of establishing the court’s jurisdiction over the defendant"). The evidence presented demonstrates that the defendant had been a resident of the state of Rhode Island for approximately six months prior to the attempted abode service, and had the plaintiff searched the land records, he would have discovered that the defendant sold the 168 Turkey Hills Road property on June 8, 2018, ten days before the attempted service. The fact that the marshal believed that the defendant still resided at the property based on information he gleaned from the Assessor’s Office does not control the disposition of this matter.
The court finds that the defendant has met her initial burden of proving that the address utilized by the marshal was not the defendant’s usual place of abode, and that the plaintiff has failed to establish otherwise. The court further finds that the plaintiff’s attempted service over the defendant was legally defective, and that the court therefore lacks jurisdiction over the defendant and the plaintiff’s claims against her.
Conclusion
The court concludes that the plaintiff’s attempted service of process over the defendant was legally deficient because the address utilized by the marshal was not the defendant’s usual place of abode and that the court therefore lacks jurisdiction over the defendant and the plaintiff’s claims against her. The defendant’s motion to dismiss is therefore granted, and the plaintiff’s action is hereby dismissed.