Opinion
CV166065326S
08-29-2018
Jayden PLUMMER PPA Kimberly Easterling v. Maria RODRIGUEZ
UNPUBLISHED OPINION
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, Jayden Plummer, and his next of kin Kimberly Easterling, commenced this negligence action by service of writ, summons and complaint on the defendant, Maria Rodriguez on September 13, 2016. The marshal’s return states that he "served the within named defendant Maria Rodriguez, by leaving at the usual place of abode of said defendant, at 1050-1052 Campbell Avenue, 1st Floor, West Haven, CT., a true and attested copy of the original Writ, Summons and. Complaint with [his] endorsement thereon." The return date is October 15, 2016. The complaint dated September 6, 2016, was returned to court on October 7, 2016, and alleges the following facts.
On or about June 18, 2016, and for some time prior thereto, the defendant was the owner and keeper of dogs which she kept on or about premises located at 1050 and 1052 Campbell Avenue, West Haven, Connecticut. On that date, the plaintiff, a minor, was upon the defendant’s premises when he was chased by the dogs and then suddenly attacked and knocked to the ground which caused the plaintiff to sustain severe injuries and losses. The plaintiff alleges that the defendant is liable and legally responsible to the plaintiff for the attack and his resulting injuries and losses pursuant to General Statutes § 22-357, Connecticut’s dog bite statute.
Connecticut General Statutes § 22-357 provides in relevant part: "(b) If any dog does any damage to either the body or property of any person, the owner or keeper, or, if the owner or keeper is a minor, the parent or guardian of such minor, shall be liable for the amount of such damage, except when such damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog. If a minor, on whose behalf an action under this section is brought, was under seven years of age at the time such damage was done, it shall be presumed that such minor was not committing a trespass or other tort, or teasing, tormenting or abusing such dog, and the burden of proof thereof shall be upon the defendant in such action. In an action under this section against a household member of a law enforcement officer to whom has been assigned a dog owned by a law enforcement agency of the state, any political subdivision of the state or the federal government for damage done by such dog, it shall be presumed that such household member is not a keeper of such dog and the burden of proof shall be upon the plaintiff to establish that such household member was a keeper of such dog and had exclusive control of such dog at the time such damage was sustained."
On April 26, 2017, the plaintiff filed a motion for default for failure to appear which was granted on May 4, 2017. The matter proceeded to a hearing in damages on February 8, 2018, to which the defendant failed to appear. The court entered judgment in favor of the plaintiff on February 8, 2018, and awarded the plaintiff economic damages in the amount of $53,877 and noneconomic damages in the amount of $375,000 for a total judgment of $428,877.00
Notice of judgment dated February 28, 2018, was served on the defendant by the plaintiff by way of certified mail at 1050-1052 Campbell Avenue 1st floor, West Haven, Connecticut. Notice of judgment was filed with the court on March 1, 2018. On March 14, 2018, thirteen days after the notice of judgment was filed, counsel for the defendant entered an appearance on behalf of the defendant. On April 10, 2018, the defendant filed a motion to open and set aside the judgment on grounds that the court lacked personal jurisdiction at the time judgment was entered because the defendant "did not ever receive service of the summons and complaint." Def. Mot. To Open. More specifically, the defendant argues that the court should exercise its intrinsic authority because the defendant was served at the wrong address and never had an opportunity to present a defense, and in the interest of justice, the court should set aside the judgment so that the claims against the defendant Colon can be withdrawn. The defendant has filed no affidavits with her motion to open, nor has the defendant filed a motion to dismiss challenging the court’s personal jurisdiction over her or any evidence to substantiate her assertion that she never received service.
The defendant, in her motion references a defendant by the name of "Colon," however, there is no defendant in this case by the name of Colon. The return of service, summons and complaint indicate that this lawsuit was commenced against the defendant, Maria Rodriguez.
On May 11, 2018, the plaintiff filed an objection to the motion to open on grounds that the defendant was properly served and she has no basis to challenge the judgment. In support of its objection, the plaintiff submits several affidavits, as well as correspondence that the plaintiff sent to the defendant at 1050-1052 Campbell Avenue, 1st floor, West Haven, Connecticut, the address where she was served, to demonstrate that not only was the defendant served at the proper address, but that defendant received actual notice of the lawsuit. The plaintiff argues that, based upon the evidence it has submitted via affidavits and correspondence sent to the defendant, the defendant was not only served at her usual place of abode, but also she had no trouble receiving mail that was addressed to the home of 1050-1052 Campbell Avenue 1st floor, West Haven, Connecticut. The plaintiff claims that the defendant’s argument that she did not know about the lawsuit until after judgment entered is not credible and therefore there is no basis for the court to open the judgment. The motion to open appeared on this court’s short calendar on May 7, 2018, as take papers.
DISCUSSION
The provisions of Practice Book § 17-43 govern opening of judgments. Practice Book § 17-43 provides, in relevant part: "(a) Any judgment rendered or decree passed by default or nonsuit may be set aside within four months succeeding the date upon which notice was sent, and the case reinstated on the docket ... upon written motion ... of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense ... existed at the time of rendition of such judgment ... And that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by oath of the complainant or the complainant’s attorney, shall state in general terms the nature of the claim or defense and shall set forth with particularity the reason why the plaintiff or defendant failed to appear." Connecticut General Statutes § 52-212 contains similar procedural requirements as conditions precedent to the opening of a judgment.
General Statutes § 52-212 provides in relevant part:
The court begins by noting that "[t]o open a judgment pursuant to Practice Book § 17-43(a) and General Statutes § 52-212(a), the movant must make a two-part showing that (1) a good defense existed at the time an adverse judgment was rendered; and (2) the defense was not at that time raised by reason of mistake, accident or other reasonable cause ... The party moving to open a default judgment must not only allege, but also make a showing sufficient to satisfy the two-pronged test [governing the opening of default judgments] ... The negligence of a party or his counsel is insufficient for purposes of § 52-212 to set aside a default judgment ... Finally, because the movant must satisfy both prongs of this analysis, failure to meet either prong is fatal to its motion." (Citations omitted; internal quotation marks omitted.) Nelson v. The Contracting Group, LLC, 127 Conn.App. 45, 49, 14 A.3d 1009 (2011)." Weinstein and Wisser, P.C. v. Cornelius, 151 Conn.App. 174, 180, 94 A.3d 700 (2014).
"Although ... § 52-212 [opening a judgment upon default] ... normally limit[s] the authority [of the trial court] to open judgments to a four-month period, [this statute does] not preclude the opening of a default judgment that is rendered without jurisdiction over a defendant ... As a matter of law, in the absence of jurisdiction over the parties, a judgment is void ab initio and is subject to both direct and collateral attack ... A trial court’s authority to open such judgments does not arise from ... § 52-212(a) or Practice Book [§ 17-43] but from its inherent power to open a judgment rendered without jurisdiction ... In other words, a court always has the inherent authority to open a default judgment, irrespective of the four-month rule and the valid defense and good cause requirement in Practice Book § 17-43 and General Statutes § 52-212(a), if the judgment was rendered without jurisdiction of the parties or of the subject matter." (Citations omitted; internal quotation marks omitted.) Devore Associates, LLC v. Sorkin, 132 Conn.App. 244, 250-51, 31 A.3d 420 (2011). Id., 180-81. Accordingly, because the defendant’s motion to open raises a jurisdictional challenge, the court must determine whether it should exercise its inherent authority to open the judgment. Thus, this court must determine whether, at the time judgment was entered, the court had jurisdiction over the defendant.
"When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, ‘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.) Filippi v. Sullivan, supra, 273 Conn. at 8, 866 A.2d 599; see also Shay v. Rossi, 253 Conn. 134, 140, 749 A.2d 1147 (2000), overruled in part by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003); see, e.g., Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., supra, 239 Conn. at 99-100, 680 A.2d 1321 (deciding jurisdictional question on pleadings alone).
"In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss; Practice Book § 10-31(a); other types of undisputed evidence; see, e.g., Kozlowski v. Commissioner of Transportation, supra, 274 Conn. at 504 n.7, 876 A.2d 1148 (photographs and deposition testimony); Ferreira v. Pringle, 255 Conn. 330, 336, 766 A.2d 400 (2001) (lease agreement); Shay v. Rossi, supra, 253 Conn. at 139 n. 7, 749 A.2d 1147 (official records of department of children and families); and/or public records of which judicial notice may be taken; Cox v. Aiken, supra, 278 Conn. at 217, 897 A.2d 71 (state employees’ collective bargaining agreement); the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts ‘and need not conclusively presume the validity of the allegations of the complaint.’ Shay v. Rossi, supra, at 140, 749 A.2d 1147. Rather, those allegations are ‘tempered by the light shed on them by the [supplementary undisputed facts].’ Id., at 141, 749 A.2d 1147; see also Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). 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 counteraffidavits; Practice Book § 10-31(b); or other evidence, the trial court may dismiss the action without further proceedings. See, e.g., Ferreira v. Pringle, supra, at 344-45, 766 A.2d 400; Amore v. Frankel, 228 Conn. 358, 364, 367-69, 636 A.2d 786 (1994). If, however, the defendant submits either no proof to rebut the plaintiff’s jurisdictional allegations; Connecticut Hospital Assn. v. Pogue, 870 F.Supp. 444, 447 (D.Conn. 1994); or only evidence that fails to call those allegations into question; Ostow & Jacobs, Inc. v. Morgan-ones, Inc., 189 F.Supp. 697, 698 (S.D.N.Y. 1960); the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein. See id.
"Finally, where 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. Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 861 A.2d 1160 (2004) ([w]hen 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) (same). Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits. Lampasona v. Jacobs, 209 Conn. 724, 728, 553 A.2d 175 (‘[i]n some cases ... it is necessary to examine the facts of the case to determine whether it is within a general class that the court has power to hear’), cert. denied, 492 U.S. 919, 109 S.Ct. 3244, 106 L.Ed.2d 590 (1989). An evidentiary hearing is necessary because ‘a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.’ Coughlin v. Waterbury, 61 Conn.App. 310, 315, 763 A.2d 1058 (2001)." (Footnotes omitted.) Conboy v. State, 292 Conn. 642, 651-54, 974 A.2d 669 (2009).
"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." (Internal quotation marks omitted.) Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 855, 911 A.2d 1149 (2006), cert. granted on other grounds, 282 Conn. 901, 918 A.2d 888 (2007). "[B]ecause an officer’s return of abode service is prima facie evidence of the facts stated therein ... a defendant who contests the facts stated in the return bears the initial burden of disproving personal jurisdiction." (Citation omitted; emphasis in original.) Jimenez v. DeRosa, 109 Conn.App. 332, 341, 951 A.2d 632 (2008).
"[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 ... 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." (Citations omitted; internal quotation marks omitted.) Jiminez v. DeRosa, supra, 109 Conn.App. 338. "[T]he usual place of abode presumptively is the defendant’s home at the time when service is made." (Internal quotation marks omitted.) Id., citing Grant v. Dalliber, 11 Conn. 234, 237-38 (1836).
In the present case the marshal’s return states that he served the defendant, Maria Rodriguez, "by leaving at the usual place of abode of said defendant at 1050-1052 Campbell Avenue 1st Floor, West Haven, CT a true and attested copy of the original Writ, Summons and Complaint with [his] endorsement thereon ..." Pl. Obj. Ex. A. Here, the defendant has not submitted an iota of evidence to rebut the matters stated in the marshal’s return. The defendant merely asserts that she never received service of the summons and complaint, because "the complaint and notice of judgment were served at the wrong address." The defendant has failed to provide the court with any evidence to substantiate this assertion. Thus, the defendant has failed to meet her initial burden of disproving jurisdiction. Accordingly, because the marshal’s return is prima facie evidence that jurisdiction was conferred upon the court at the time judgment was entered, and the defendant has failed to offer any evidence to prove otherwise, this court concludes that the court, at the time judgment was entered properly exercised jurisdiction over the defendant.
Although this court need go no further and look to the plaintiff’s evidence where the defendant fails to rebut the matters contained in the marshal’s return, the court nonetheless has reviewed the plaintiff’s affidavits and evidence in support of his objection and concludes that the defendant not only was properly served, but had actual notice of the lawsuit. It is crystal clear from the plaintiff’s evidence that the defendant not only was properly served at her usual place of abode, but also had actual notice of this lawsuit because the evidence demonstrates that she had no trouble receiving mail that was addressed to 1050-1052 Campbell Avenue, 1st floor, West Haven, Connecticut, and did indeed receive correspondence from plaintiff’s counsel mailed to 1050-1052 Campbell Avenue, 1st floor, West Haven, Connecticut, because it was not returned. The evidence further demonstrates, that the defendant received the notice of judgment that was sent to her by plaintiff’s counsel at 1050-1052 Campbell Avenue 1st floor, West Haven, Connecticut. Significantly, counsel for the defendant filed an appearance on March 14, 2018, only two weeks after notice of judgment was filed with the court, which suggests to this court that the 1050-1052 Campbell Avenue address where the marshal served the defendant, and where she received correspondence from plaintiff’s counsel, is in fact the defendant’s place of abode, and that when the defendant received notice of a $428,877 judgment, she finally, albeit too late, notified her insurer. The plaintiff’s evidence further demonstrates that the defendant confirmed that her address was 1050-1052 Campbell Avenue, 1st floor, West Haven, Connecticut, 06516 and that she acknowledged receipt of papers from the court regarding the plaintiff Jayden Plummer. Pl. Obj., Exs. B and C. "General Statutes § 52-57(a), authorizing abode service, should be construed liberally in cases in which the defendant received actual notice. Krom v. Krom, judicial district of Hartford, Docket No. FA97-0714850, 2003 WL 352938 (January 6, 2003)." Fine Homebuilders, Inc. v. Perrone, supra, 98 Conn.App. 861.
The defendant’s sole basis for moving to open the judgment is that "the complaint and notice of judgment were served at the wrong address," and therefore the court lacked personal jurisdiction at the time judgment was entered. Accordingly, since this court has determined that the defendant was properly served, and personal jurisdiction over the defendant was properly conferred on the court at the time judgment was entered, this court declines to exercise its inherent authority to open the judgment as there is no basis to do so. The motion to open is therefore denied. Plaintiff’s objection thereto is sustained.
CONCLUSION
For the foregoing reasons, the defendant’s motion to open and vacate the judgment is denied. The plaintiff’s objection thereto is sustained.
(a) Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.
(b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear ...