Opinion
FBTCV166054517S
01-05-2017
Michael Pinto v. Evelyn King, Executrix of the Estate of Helen Andrejczyk et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISMISS
Edward T. Krumeich, J.
Defendant, a Connecticut resident, has moved to dismiss this case for lack of personal jurisdiction because plaintiff failed to serve process on defendant pursuant to statute at her usual place of abode in this state. For the reasons stated below, the motion to dismiss is denied.
C.G.S. § 52-57(a) provides: " (a) . . . 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." (Emphasis added.) This motion raises the issue of how broadly the Court should construe the phrase " usual place of abode."
The parties agreed that the facts relevant to the motion to dismiss are undisputed. Since 1982 defendant has resided in a converted barn she owns at 260 Palisado Avenue in Windsor, which is the address on her driver's license. This converted barn is located immediately behind an antique house whose address is 256 Palisado Avenue, also owned by defendant. Defendant purchased the house and barn in 1979, moved into the house in 1980 and moved to the barn when it was converted in 1982. She has continuously owned and resided on the property since 1980. The house and barn share a single mailbox and driveway. The Windsor town assessor records list both house and barn owned by defendant in a single card with the same map, block and lot numbers and a mailing address of 256 Palisado Avenue. On the tax cards for 256 Palisado Ave. and 260 Palisado Ave. defendant is identified as owner with the house listed as the primary building and the barn listed as an " outbuilding." Defendant occasionally receives mail at the 256 Palisado Ave. address. Defendant testified she went to 256 Palisado Ave. " periodically." The marshal's return of service states that he left a true and attested copy of the summons and complaint at 256 Palisado Ave., the " defendant's usual place of abode . . ." Defendant testified the house was vacant and she noticed and retrieved the copy of the summons and complaint left in the front doorway of 256 Palisado Avenue.
Defendant submitted her affidavit and plaintiff submitted excerpts from defendant's deposition and copies of tax assessor cards for 256 Palisado Ave., 260 Palisado Ave. in Windsor and 72 Huntington Rd. in Newtown. Because the parties agreed on the material facts there was no need for an evidentiary hearing.
Plaintiff offered a green card purportedly signed by defendant on a certified letter addressed to defendant sent to " 256 Palestine Avenue" in Windsor. This address was also used on the summons, although process was served at 256 Palisado Ave. The origin of this mistake presumably is the tax assessor card for the property owned by defendant in Newtown, where the slip and fall allegedly occurred, which lists " 256 Palestine Avenue" in Windsor as defendant's address.
Defendant urges that the Court adopt a restrictive definition of " usual place of abode" in C.G.S. § 52-57(a) as the residence of defendant at the time of service. She argues that she resided in the barn, not the vacant house where the process was left by the marshal. In support of her argument she cited the Appellate Court's decision in Jimenez v. DeRosa, 109 Conn.App. 332, 337-39, 951 A.2d 632 (2008), in which the court upheld the decision below that service at defendant's former residence did not constitute proper abode service.
The 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 plaintiffs 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.
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The legal principles that guide our resolution of the plaintiffs' claims are equally well established. " [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." . . . " [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 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." . . .
For service pursuant to § 52-57(a), the " usual place of abode" presumptively is the defendant's home at the time when service is made . . . Whether a particular locale is the usual place of abode is a question of fact. " When, however, the defendant is a resident of Connecticut who claims that no valid abode service has been made . . . that would give the court jurisdiction over [the defendant's] person, the defendant bears the burden of disproving personal jurisdiction . . . 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." 109 Conn.App. at 337-39 (Citations omitted).
Although " presumptively" the phrase " usual place of abode" in § 52-57(a) is " the defendant's home at the time when service is made, " as the Jimenez Court notes, 109 Conn.App. at 338, other courts have liberally extended the definition to places where defendant was likely to receive process, at least where actual notice of the action is proven. See Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 861-62, 911 A.2d 1149 (2006). In Fine the Appellate Court reversed the decision below and upheld abode service at the front gate of a gated property when the marshal was unable to get through a locked gate to leave process at the front door of the dwelling. Id. The Court concluded that method of service was reasonably likely to achieve personal notice and did result in actual notice of the action. Id.
The Jimenez Court also alluded to " the usual address of the party to be served" as his abode. 109 Conn.App. at 338. Evidence was presented that defendant used 256 Palisado Ave. as an address she used in addition to 260 Palisado Ave.
" In this case, it is significant, though not conclusive, that the defendants actually did receive the process, thereby accomplishing the purpose of abode service. General Statutes § 52-57(a), authorizing abode service, should be construed liberally in cases in which the defendant received actual notice . . . Accordingly, in light of the fact that the front door of the defendants' home was inaccessible, that the marshal affixed the process to the main entryway to the property, that the property is a single-family residence and the defendants actually received notice of the action, we believe that the service of process effected by the marshal was reasonably likely to achieve personal notice. Therefore, the court improperly determined that it lacked personal jurisdiction over the defendants." Fine, 98 Conn.App. at 861-62 (citation omitted; emphasis added).
The Fine Court grounded its decision to interpret " abode" broadly on the function that abode service is designed to achieve, namely providing defendant with notice that suit has been commenced. 98 Conn.App. at 855-65.
Other courts have taken a functional approach to abode service. See e.g., Charbonneau v. Charbonneau, 1997 WL 746423 *2 (Conn.Super. 1997) [20 Conn.L.Rptr. 696, ]: " One's usual place of abode is in the place where he would most likely have knowledge of service of process. Clegg v. Bishop, 105 Conn. 564, 136 A. 102 [(1927)] . . . Its chief purpose is to ensure actual notice to the defendant that the action is pending. Smith v. Smith, 150 Conn. 15, 20, 183 A.2d 848 [(1962)]."
In many cases jurisdiction is immediately evident, as where the sheriff's return shows abode service in Connecticut . . . When, however, 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.
The manner in which service of process may be effected is determined by statute and by our decisional law interpreting the relevant statute. Therefore, we begin our analysis with the statute. General Statutes § 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." We note that the statute contains no definition of the term " abode." Thus, we do not know from the statute's language whether the term " abode" is intended narrowly to mean the dwelling house or more broadly to encompass the entirety of the property associated with a dwelling house. " When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes." . . . " We construe each sentence, clause or phrase to have a purpose behind it . . . In addition, we presume that the legislature intends sensible results from the statutes it enacts . . . Therefore, we read each statute in a manner that will not thwart its intended purpose or lead to absurd results . . . Words in a statute must be given their plain and ordinary meaning . . . unless the context indicates that a different meaning was intended . . . No word or phrase in a statute is to be rendered mere surplusage . . . In applying those principles, we keep in mind that the legislature is presumed to have intended a reasonable, just and constitutional result." " If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra textual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ."
A review of the legislative history fails to shed any light on the meaning or import of the term " abode" or the phrase " at the usual place of abode." Some guidance is, however, provided by a review of the decisional law regarding the purpose of § 52-57(a). Our Supreme Court has determined that the purpose of abode service is to afford a defendant actual notice of a pending action. " Abode service is only a step removed from manual service and serves the same dual function of conferring jurisdiction and giving notice . . . Its chief purpose is to ensure actual notice to the defendant that the action is pending." . . . Accordingly, in order to effectuate abode service, " [t]he process must be left at the usual place of abode of the defendant in such a place and in such a manner that is reasonably probable the defendant will receive the notice of the action against him." . . . Thus, whether the term " abode" connotes one's dwelling or more broadly one's property, we know that service must be effectuated in a way reasonably calculated to provide actual notice.Fine, 98 Conn.App. at 855-57 (citations omitted).
" The place where one would be most likely to have knowledge of a service by copy would be at his usual place of abode." Clegg v. Bishop, 105 Conn. 564, 136 A. 102 (1927). Defendant was much more likely to receive notice left at the house here than other places found to satisfy " abode" service. See Judd v. Gagne, 2012 WL 5477080 *3-4 (Conn.Super. 2012) (Matasavage, J.) (abode service at residence of defendant's minor child upheld as place where service " likely to come to defendant's attention"); Aldrich v. Smith, 2013 WL 6925921 *5 (Conn.Super. 2013) [57 Conn.L.Rptr. 250, ] (Pickard, J.) (service at last known address); Jakubowski v. Wilcox, 1998 WL 881840 *2 (Conn.Super. 1998) (Mihalakos, J.) [23 Conn.L.Rptr. 435, ] (service at vacation cottage); Plonski v. Halloran, 36 Conn.Supp. 335, 337, 420 A.2d 117 (1980) (Aspell, J.) (service at hotel room).
Although this was not a gated property, it is significant that the doorway where the process was left was entirely within defendant's exclusive possession and control. See Fine, 98 Conn.App. at 859 (" . . . the term abode connotes more than one's dwelling and may also encompass an area outside of the dwelling that is within the person's exclusive control"). As a practical matter, the property whose address was 256 Palisado Avenue on the town assessor records, owned continuously by defendant since 1979, functioned as defendant's abode at the time process was left at the doorway to the vacant house. Further, process left in the doorway at 256 Palidiso Ave. was reasonably likely to be received by defendant, and was received by her, so she had actual knowledge of the suit. Compare, Fine, 98 Conn.App. at 861-62.
The Fine Court noted that the common practice of slipping process under the defendant's door, thereby within the confines of the dwelling, is not the exclusive means of service; " § 52-57(a) requires service 'at [the] usual place of abode' not in the dwelling." 98 Conn.App. at 860. Under the circumstances here, the entire property defendant purchased in 1979 and where she has resided since 1980 constituted defendant's abode for purposes of service of process. Had the house been rented to a third-party tenant, however, the element of exclusive possession, custody and control central to this decision would have been lost. As it is, no one other than defendant had possessory and controlling access to the doorway where the process was left and it was reasonably probable that she would receive any process left there.
Therefore, I conclude that defendant failed to meet her burden of demonstrating lack of personal jurisdiction because it is evident from the undisputed evidence she was served with process at her usual place of abode under C.G.S. § 52-57(a).
This decision is consistent with the policy to construe " abode" in § 52-57(a) broadly to uphold jurisdiction over residents of this state who have actual knowledge of the suit. " Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court." Fine, 98 Conn.App. at 860 (citation omitted).
The motion to dismiss is denied.