Opinion
HHDCV116025633.
11-14-2012
SCR JOINT VENTURE, L.P. v. Steven P. SCHWARTZ.
UNPUBLISHED OPINION
DOMNARSKI, J.
This action is based on a judgment for money damages obtained against the defendant in 1991 in the Superior Court for the judicial district of Hartford at New Britain (original action), Connecticut National Bank v. Marcantonio, Superior Court, Docket No. CV-900387712. The essential facts stated herein are not in dispute. The subject of the original action was a promissory note executed by the defendant and judgment in the action was entered by stipulation of the parties. At the time of judgment, the defendant was a Connecticut resident, represented by counsel. The plaintiff here is an assignee of the judgment in the original action.
The defendant has been a resident of New York since 1991, and he has not conducted any business or owned any property in Connecticut since 1991. The defendant has filed this motion to dismiss on the ground that this court does not have personal jurisdiction. The plaintiff maintains that the court does have jurisdiction under the Connecticut long-arm statute which satisfies due process considerations.
Discussion
General Statutes § 52-598(a) provides that any action based upon a judgment for money damages must be instituted within twenty-five years from the date of judgment. It is important to note that this case does not involve a motion to revive a judgment that may be filed pursuant to § 52-598(c).
General Statutes § 52-598(a) provides: " No execution to enforce a judgment for money damages rendered in any court of this state may be issued after the expiration of twenty years from the date the judgment was entered and no action based upon such a judgment may be instituted after the expiration of twenty-five years from the date the judgment was entered, except that there shall be no time limitation on the issuance of such execution or the institution of such action if the judgment was rendered in an action to recover damages for personal injury caused by sexual assault where the party legally at fault for such injury was convicted of a violation of section 53a-70 or 53a-70a."
Statutes § 52-598(c) provides: " With respect to a judgment for money damages rendered in any court of this state, including, but not limited to, a small claims session, a motion to revive such judgment may be filed with the Superior Court prior to the expiration of any applicable period of time to enforce such judgment as set forth in this section. The court may grant the motion to revive the judgment if the court finds that the applicable time period to enforce the judgment under this section has not expired. No order to revive a judgment may extend the time period to enforce a judgment beyond the applicable time period set forth in this section."
" If the defendant challenging the court's personal jurisdiction is a foreign corporation or a non-resident individual, it is the plaintiff's burden to prove the court's jurisdiction." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007). " When a defendant challenges personal jurisdiction in a motion to dismiss, the court must undertake a two-part inquiry to determine the propriety of its exercising such jurisdiction over the defendant. 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 ... Thus, based on the facts in the record, this court must determine: first, whether § [52-59b] properly applies to the defendant; and, second, if the statutory threshold is met, whether the defendant has the requisite minimum contacts this state sufficient to satisfy constitutional due process concerns." (Internal quotation marks omitted.) Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008).
The defendant maintains that because he has not been a resident of Connecticut for at least twenty years, and has not had a personal or professional relationship with the State of Connecticut for the last eighteen years, he has insufficient contacts with the State of Connecticut to establish personal jurisdiction. The plaintiff maintains that the defendant's participation in the original Connecticut action, which resulted in a stipulated judgment, constitutes the transaction of business under § 52-59(b) that authorizes the assertion of jurisdiction over the defendant.
General Statutes § 52-59b provides in relevant part: " As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual ... who ... [t]ransacts any business within the state ..."
A stipulated judgment is to be regarded and construed as a contract. McCarthy v. Chromium Process Co., 127 Conn.App. 324, 329, 13 A.3d 715 (2011). With regard to § 52-59b " the term ‘ transacts any business' ... embrace[s] a single purposeful business transaction." Zartolas v. Nisenfeld, 184 Conn. 471, 474, 440 A.2d 179 (1981). The court concludes that the entry of a stipulated judgment in the original Connecticut court action satisfies the transaction of business requirement of § 52-59b.
The passage of time does not diminish the vitality or applicability of § 52-59b. The court finds the reasoning in the trial court's decision in Stingle v. Tuller to be persuasive. See Stingel v. Tuller, Superior Court, judicial district of Hartford at Hartford, Docket No. CV-085022299 (April 15, 2009, Prescott, J.) [ 47 Conn. L. Rptr. 585]. In that case, the defendants contested personal jurisdiction under the long-arm statutes because approximately five years had passed since they had any contact with the State of Connecticut. Judge Prescott stated: " The court recognizes that the length of time between a non-resident individual's last contact with the forum state and the filing of the action is certainly a relevant factor in considering the constitutionality of a state's exercise of personal jurisdiction over the individual. It is not, however, a relevant factor in assessing the applicability of the long-arm statute in a particular case. There is no language in Connecticut's long-arm statute that limits the exercise of personal jurisdiction over a non-resident individual to any particular number of months or years. Although it is true that the passage of time may ultimately affect a plaintiff's ability to sue because of a statute of limitation that applies to the underlying cause of action, an analysis of whether the long-arm statute applies in a particular case is unrelated to such temporal consideration. " (Emphasis added.)
Having decided that the long-arm statute applies, the court must then decide whether the exercise of jurisdiction over the defendant would violate constitutional principles of due process. " As articulated in the seminal case of International Shoe Co. v. Washington, 328 U.S. 31, 316, 66 S.C. 154, 90 L.Ed.2d 95 (1945), the constitutional due process standard requires that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice ... The due process test for personal jurisdiction has two related components: the ‘ minimum contacts' inquiry and the ‘ reasonableness inquiry.’ The court must first determine whether the defendant has sufficient contacts with the forum state to justify the court's exercise of personal jurisdiction." (Citations omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, 282 Conn. at 523-24.
" For the purposes of this initial inquiry, the Supreme Court of the United States has articulated, and this court has recognized, two types of personal jurisdiction. Either 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] result[ed] from alleged injuries that arise out of or relate to those activities ... Whether a given defendant has contacts with the forum state sufficient to satisfy due process is dependent upon the facts of the particular case." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., at 524.
In this case, the defendant, a Connecticut resident at the time, was a party to litigation in Connecticut which resulted in a stipulated judgment. The defendant's participation in the litigation constituted purposefully directed activities within the state. The activities, including the entry of a stipulated judgment, gave rise to this litigation. These activities are sufficient minimum contacts to support a finding of " specific jurisdiction."
Having determined the defendant has minimum contacts with Connecticut, the court must conduct a " reasonableness" inquiry. " Due process demands more, however, than the existence of minimum contacts between the defendant and the forum state. Once minimum contacts have been established, [t]he second stage of due process inquiry asks whether the assertion of personal jurisdiction comports with ‘ traditional notions of fair play and substantial justice’ — that is, whether it is reasonable under the circumstances of the particular case. [Therefore] [w]hile the exercise of jurisdiction is favored where the plaintiff has made a threshold showing of minimum contacts at the first stage of the inquiry, it may be defeated where the defendant presents a compelling case that the presence of some other considerations would render jurisdiction unreasonable." (Citations omitted; internal quotation marks omitted.) Id., at 525. " The twin touchstones of due process analysis under the minimum contacts doctrine are foreseeability and fairness. ‘ [T]he foreseeability that is critical to due process analysis ... is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)." U.S. Trust Co. v. Bohart, 197 Conn. 34, 41, 495 A.2d 1034 (1985).
To support his position that the court does not have jurisdiction over him, the defendant relies on his lack of contacts with the State of Connecticut and the passage of time. These factors do not present a compelling case that renders jurisdiction unreasonable. As noted earlier, an action on a judgment pursuant to § 52-598(a) may be brought within twenty-five years of the date of the original judgment. The statute was in existence when the defendant entered into the stipulated judgment in 1991. It was reasonably foreseeable that the defendant could be haled into court, in an action such as this, to enforce the original judgment. The defendant's contact with Connecticut at the time of the original action satisfies due process.
The court finds support for its conclusions in a factually similar case decided by the Court of Appeal of California, The Cadle Co. v. Fiscus, 163 Cal.App.4th 1232, 78 Cal.Rptr.3d 238 (2008). In Fiscus, the plaintiff filed an independent complaint in 2006 to enforce a 1992 judgment for money damages. The defendant filed a motion to quash the service of the summons for lack of personal jurisdiction. The defendant maintained he had been a resident of Arizona since 1987 and did not conduct business in California. The trial court granted the motion to quash and concluded that when an independent action to enforce a judgment is filed, there must be a current basis for asserting jurisdiction.
The Court of Appeal disagreed and stated: " There is nothing unreasonable about subjecting Fiscus to the jurisdiction of California courts in an independent action to renew the 1992 judgment. Fiscus entered into a contract in California (the promissory note), that was to be performed in California (i.e., payment of the debt), which he breached when he failed to repay the debt. An action on the note was filed in California and Fiscus submitted himself to the jurisdiction of the California court when he appeared in the action. A money judgment was entered against Fiscus in California, and he has failed to pay his obligations. We cannot agree the passage of time between the original California litigation and the revival action, during which Fiscus has had no additional contacts with the State of California, defeats personal jurisdiction as concerns the enforcement of the 1992 judgment. Such a conclusion could encourage judgment debtors to evade legal obligations imposed by a judgment of this state's courts by simply packing up their assets and leaving the jurisdiction. Under the circumstances, it is not unfair to require Fiscus to submit again to the jurisdiction of the California courts in a suit based upon the judgment previously entered on the same claim." Id., at 1240-41.
The defendant here urges the court to follow the trial court's decision in Investment Assoc. v. Lancia, Superior Court, judicial district of New Haven at New Haven, Docket No. 07-4028746 (May 5, 2008, Robinson, J.). In a factually similar case, the defendant was involved in prior litigation in Connecticut in 1994, but had no recent contacts with Connecticut. In 2007 the plaintiff filed an action based upon the 1994 judgment and the defendant moved to dismiss for lack of jurisdiction. Judge Robinson concluded that the prior litigation was insufficient to provide personal jurisdiction under § 52-59b and granted the motion. In declining to follow the decision in Lancia, this court notes that the Stingle and Fiscus cases had yet to be decided.
The defendant also maintains that this court is bound by language contained in the recent case of Investment Associates v. Summit Associates, 132 Conn.App. 192 (2001). Summit was a companion case to Lancia. In Lancia, the plaintiff brought an independent action pursuant to § 52-598(a) to enforce a prior judgment. In Summit, the plaintiff, whose independent action had been dismissed in Lancia, filed a motion to revive the original judgment pursuant to § 52-598(c), a new procedure enacted in 2009. The Summit defendant filed a motion to dismiss, claiming lack of personal jurisdiction, that was denied. On appeal the defendant " argue[d] that, ... a motion to revive filed pursuant to § 52-598(c)(1) cannot be applied retroactively and (2) is a new action for which a court must obtain jurisdiction over the parties independent of any personal jurisdiction it may have had at the time of a judgment. [The Appellate Court] conclude[d] that § 52-598(c) is a procedural statute that confers continuing jurisdiction on the court." Id., at 202. When addressing the defendant's argument the court stated: " We further conclude that a motion filed pursuant to § 52-598(c) is not a new action requiring the court to obtain personal jurisdiction over the parties independent of jurisdiction present at judgment." Id., at 204.
The defendant seizes upon this language and maintains it is a determination that this action, which is a new action, requires jurisdiction over a defendant independent of personal jurisdiction at the time of judgment. The court does not agree. First, the statute under review in Summit was § 52-598(c), not § 52-598(a), which is at issue here. Second, the court did not at all consider the long-arm statute as a means of asserting jurisdiction. Third, the statement was not necessary to the determination of the issue at hand and may considered dicta. " Dictum is generally defined as ‘ [a]n expression in an opinion which is not necessary to support the decision reached by the court ... A statement in an opinion with respect to a matter which is not an issue necessary for decision.’ (Citation omitted.) Ballentine's Law Dictionary (3d Ed.1969). Our Supreme Court has instructed that dicta have no precedential value. See St. George v. Gordon, 264 Conn. 538, 547 n. 10, 825 A.2d 90 (2003)." State v. Torres, 85 Conn.App. 303, 320, 858 A.2d 776, cert. denied, 271 Conn. 947, 861 A.2d 1179 (2004); Porto v. Sullivan, 119 Conn.App. 360, 366 n. 4, 987 A.2d 1092 (2010).
For the foregoing reasons, the motion to dismiss is denied.