Opinion
HHDCV166066749S
03-17-2017
Richard Thornburg et al., Executors v. Ellen Sollazzo
UNPUBLISHED OPINION
ORDER RE MOTION TO DISMISS
Cesar A. Noble, J.
Before the court is the motion to dismiss of the defendant, Ellen Sollazzo, for insufficiency of service of process because she did not maintain a usual place of abode at the address where the marshal left process. Because the court finds that process was not served on her usual place of abode the motion is granted.
FACTS
The present action stems from a dispute between the co-plaintiffs, Richard Thornburg and Lynette Thornburg, acting as the personal representatives of the estate of Kim Degerstrom (decedent), and the defendant, Ellen Sollazzo, regarding the collection of sums of money that the decedent allegedly loaned to the defendant. On March 14, 2016, the co-plaintiffs filed a four-count complaint, which is the operative complaint, in which they allege the following facts. The decedent loaned to the defendant $7, 700 in October 2012, as well as $4, 500 in January 2013. The decedent and the defendant orally agreed that the $12, 200 debt would be paid back in full at some point in the future. Moreover, the decedent passed away on August 29, 2015, at which time the defendant had repaid no portion of the $12, 200 debt. Subsequently, the co-plaintiffs were appointed personal representatives of the decedent's estate. Despite the co-plaintiffs' numerous demands for repayment, the defendant has not satisfied the alleged debt. According to the co-plaintiffs, the decedent and her estate have been damaged as a result of the defendant's failure to repay the October 2012 and January 2013 loans. The co-plaintiffs claim damages, interest, and costs.
]
On July 25, 2016, the defendant filed an appearance and a motion to dismiss the co-plaintiffs' complaint for insufficiency of service of process. The motion was accompanied by a memorandum of law and the defendant's signed and sworn affidavit. The following documents were attached to the defendant's affidavit as exhibits: (1) a copy of a return of service (return), which is attested and signed by State Marshal Bruce Kaz (marshal); (2) a copy of a pendente lite parenting plan that the court, Carbonneau, J., approved and entered as an order in Sollazzo v. Sollazzo, Superior Court, judicial district of Hartford, Docket No. FA-13-4067491-S (May 7, 2013), which was an action for dissolution of marriage between the defendant and her former spouse, David Sollazzo; (3) a copy of a motion to unseal financial affidavits pursuant to Practice Book § 25-59A(h) that the co-plaintiffs filed in Sollazzo ; (4) a copy of an order that was entered by the court, Albis, J., which granted the co-plaintiffs' motion to unseal financial affidavits; and (5) a copy of a demand letter, dated June 7, 2016, from the co-plaintiffs' counsel that is addressed to the defendant at 235 East River Drive, #308, East Hartford, Connecticut, 06108, as well as 200 Retreat Avenue, Suite 312, Hartford, Connecticut, 06106.
Practice Book § 25-59A(h) provides in relevant part: " Sworn statements of current income, expenses, assets and liabilities filed with the court pursuant to Sections 25-30 and 25a-15 shall be under seal and be disclosable only to the judicial authority, to court personnel, to the parties to the action and their attorneys . . . Any person may file a motion to unseal these documents. When such motion is filed . . . the party who filed the documents shall have the burden of proving that they should remain sealed."
On August 9, 2016, the co-plaintiffs filed a memorandum of law in opposition to the defendant's motion to dismiss. In support of the opposing memorandum, the co-plaintiffs submitted the following documents: (1) their signed and sworn affidavit; and (2) a print-out of an e-mail, dated July 13, 2015, that was sent to the co-plaintiffs' counsel by Lisa Vincent, the defendant's former attorney. Oral argument was heard at short calendar on November 28, 2016. Additional facts and procedural history will be set forth as necessary.
LEGAL STANDARD
" [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). " [J]urisdiction over the person, jurisdiction over the [subject matter], and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011). " Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding." Talenti v. Morgan & Brother Manhattan Storage Co., 113 Conn.App. 845, 853-54, 968 A.2d 933, cert. denied, 292 Conn. 908, 973 A.2d 105 (2009). " Because service of process implicates a court's personal jurisdiction, an action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Alldred v. Alldred, 132 Conn.App. 430, 431, 31 A.3d 1185 (2011), cert. dismissed, 303 Conn. 926, 35 A.3d 1075 (2012).
" When a . . . 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.) Lake Road Trust Ltd. v. ABB Powertech (Pty) Ltd., 136 Conn.App. 671, 677, 51 A.3d 1109 (2012). " [I]f the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . [then] 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 . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts]. 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 . . . or other evidence, the trial court may dismiss the action without further proceedings ." (Emphasis in original; internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 551-52, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014).
DISCUSSION
In the present action, the defendant argues that the court should grant the motion to dismiss on the ground of insufficiency of service of process. Specifically, the defendant argues that service of process was insufficient because she was not served with process in hand, nor did she reside at the address where the marshal left process. With respect to the latter point, the defendant further argues that, more than three years ago, she was removed from the particular address by virtue of the pendente lite parenting plan that was accepted and entered in Sollazzo . Lastly, the defendant argues that the co-plaintiffs knew, by virtue of their participation in Sollazzo, that she was removed from the location at which the marshal left service.
The co-plaintiffs counter by arguing that the court should deny the motion to dismiss because service of process was proper in the present action. Specifically, the co-plaintiffs argue that--in light of the marshal's return--the defendant did, in fact, reside at the address where the marshal left process. In this vein, the co-plaintiffs also argue that service of process was proper because the defendant received actual notice of the present action. Moreover, the co-plaintiffs assert that they lacked prior knowledge of the fact that the defendant did not reside at the address where the marshal left process, and granting the motion to dismiss will waste judicial resources and unfairly prejudice the co-plaintiffs. Regarding the latter point, the co-plaintiffs argue that the defendant has not denied the existence of the underlying debt. Additionally, the co-plaintiffs argue that the court should deny the motion to dismiss because the defendant is precluded from claiming insufficiency of service of process under the doctrines of laches and waiver. In this regard, the co-plaintiffs argue that the defendant learned of the present action on June 9, 2016, yet she waited well over a month to file a response, thus--according to the co-plaintiffs--the defendant's claim of insufficiency of service of process is barred. Lastly, the co-plaintiffs argue that the court should deny the motion to dismiss because the motion and the supporting memorandum of law were not served on their counsel in accordance with the rules of practice.
Regarding this argument, Practice Book § 10-30(b) provides: " Any defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance." Here, the defendant filed an appearance and the present motion to dismiss on July 25, 2016. Thus, the defendant filed the motion within the period of time provided by the rules of practice. Therefore, the defendant's claim of insufficiency of service of process, as set forth in the motion to dismiss, is not barred by the doctrines of laches and waiver.
The legal principles that govern the present case are well settled. " [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." (Citations omitted; internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). " The mode of service provided generally for civil actions in Connecticut appears in General Statutes § 52-57 . . ." Smith v. Smith, 150 Conn. 15, 19, 183 A.2d 848 (1962). Section 52-57 requires that " 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." § 52-57(a). In essence, " [§ ]52-57 provides for in personam service . . . by two methods: (a) by common-law service, that is, actual manual delivery of the process to the defendant himself within the state, or (b) by abode service . . . that is, by leaving a copy of the process at the defendant's usual place of abode within the state." (Internal quotation marks omitted.) Smith v. Smith, supra, 19-20.
The primary issue in the present case concerns the sufficiency of abode service of process. The general rule is that " [a]bode 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.) Jimenez v. DeRosa, supra, 109 Conn.App. 338. Specifically, " [a] usual place of abode has been defined as a place of residence within the state . . . It is well established, however, that [o]ne may have two or more places of residence within a [s]tate, or in two or more [s]tates, and each may be a usual place of abode . . . Residence does not necessarily import domicil. Nor does usual place of abode import domicil . . . There is no relation between them, though they may be concurrent. A person may have two or more places of abode while he can have only one domicil." (Citation omitted; internal quotation marks omitted.) Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 577-78, 953 A.2d 868 (2008). " [W]hether a particular place is the usual place of abode of a defendant is a question of fact." (Internal quotation marks omitted.) Tax Collector v. Stettinger, 79 Conn.App. 823, 825, 832 A.2d 75 (2003).
In light of their papers and supporting documents, the co-plaintiffs do not refute the defendant's assertion that in-hand service of process was not effected in the present case. Moreover, neither the co-plaintiffs nor the defendant contend that some other method of service was employed in the present action.
Under Connecticut law, it is well established that a marshal's return of service constitutes prima facie evidence of factual matters that a marshal has stated therein. See Watson v. Watson, 6 Conn. 334, 337 (1827); accord Matthews v. SBA, Inc., supra, 149 Conn.App. 530 (" There is a presumption of truth in matters asserted in the marshal's return of service"). " This . . . has been the ancient and invariable doctrine of our courts . . ." Watson v. Watson, supra, 337. Nevertheless, " [w]here an officer attests that the place where the summons was served was the defendant's usual place of abode, he is attesting to a fact which, unlike the fact of personal or in-hand service, is ordinarily not within his own personal knowledge." Phan v. Delgado, 41 Conn.Supp. 367, 370, 576 A.2d 603 (1990) . Consequently, statements of fact in a marshal's return " may be contradicted and facts may be introduced to show otherwise." Collins v. Scholz, 34 Conn.Supp. 501, 502, 373 A.2d 200 (1976) (Appellate Session).
" [A] defendant who contests the facts stated in the return bears the initial burden of disproving personal jurisdiction." (Emphasis in original.) Jimenez v. DeRosa, supra, 109 Conn.App. 341. " The general rule putting the burden of proof on the defendant . . . is based on the presumption of the truth of the matters stated in the officer's return . . . [A]ffidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists." (Citation omitted; internal quotation marks omitted.) Knutson Mortgage Corp. v. Bernier, 67 Conn.App. 768, 771-72, 789 A.2d 528 (2002). " The court need not view affidavits containing self-serving and unsubstantiated allegations as persuasive . . . A denial of service by the defendant which is not corroborated by any other evidence, details or circumstances is insufficient to overcome the prima facie evidence of the officer's return." (Citation omitted; internal quotation marks omitted.) Bac Home Loans Servicing, LP v. Zeiger, Superior Court, judicial district of Windham, Docket No. CV-10-6001467-S, 2010 WL 4514960 (October 15, 2010, Potter, J.T.R.) (50 Conn.L.Rptr. 706, 707, ).
The following additional facts and procedural history are relevant to determining the sufficiency of abode service of process in the present case. Along with the motion to dismiss, the defendant submitted her own affidavit, to which the marshal's return was attached as an exhibit. In the return, the marshal attests to the following facts. On February 11, 2016, at approximately 3:04 p.m., he left a true and attested copy of, inter alia, a writ, summons, and complaint pertaining to the present action at the defendant's usual place of abode. According to the marshal, the defendant's usual place of abode was located at Farmington Woods, 105 Mallard Drive, Farmington, Connecticut (Farmington Woods). Moreover, the defendant resided in a " secured community, " and the security officer on duty confirmed that Farmington Woods was the defendant's address.
Despite the matters set forth in the marshal's return, the defendant avers in her affidavit that, as of July 23, 2016, she has not lived at Farmington Woods for more than three years. In this regard, the defendant avers that she moved out of Farmington Woods pursuant to the pendente lite parenting plan (order) that was accepted and entered in Sollazzo . The order is attached to the defendant's affidavit as an exhibit. Specifically, paragraph 1 of the order provides in relevant part: " The minor child shall primarily reside with [David Sollazzo] in the marital home, located at 105 Mallard Drive, Farmington, Connecticut. [David Sollazzo] shall have exclusive use and possession of the marital home until further order of the Court . . ." (Emphasis added.) Moreover, paragraph 2 of the order provides in relevant part: " [Ellen Sollazzo] shall be permitted to return to the marital home with a police escort to remove her personal clothing and belongings . . ." (Emphasis added.) Paragraph 3 makes clear that the defendant's contact with her child was temporary, and any such contact--whether in person or by phone--had to be supervised by a designated Department of Children and Families (department) representative. According to paragraph 5 of the order, only the department representative was authorized to drive the child to and from Farmington Woods for purposes of facilitating the defendant's supervised parenting time. Lastly, paragraph 7 provides in relevant part: " [T]here shall be no contact between [David Sollazzo] and [Ellen Sollazzo], unless an emergency arises or there is a need to alter the [supervised parenting plan schedule] and [the designated department representative] is not available to facilitate the communication." (Emphasis added.)
Applying the governing legal principles to the facts of the present case, it is submitted that abode service of process on the defendant was insufficient in the present case. Although the return serves as prima facie evidence of the fact that--at the time the marshal left process at Farmington Woods--the defendant maintained a usual place of abode there, the defendant has carried her burden of disproving this fact. Specifically, the order substantiates the defendant's averment that she has not resided at Farmington Woods for a matter of years. Under the order, the defendant could not, as a matter of law: (1) return to Farmington Woods for living purposes, because David had a right to use and possess the premises to the exclusion of the defendant; (2) visit Farmington Woods as an incident to her supervised parenting time, because the authority to drive the child to and from the premises was exclusively vested in the department representative; (3) keep any of her personal belongings at Farmington Woods; and (4) communicate with the people who lived there, viz., her former spouse and her child, absent an emergency or third-party supervision. In effect, the order created " a marked interruption of the continuity of [the defendant's] living habits at [Farmington Woods] so that it would be a former place of abode." Capitol Light & Supply Co. v. Gunning Electric Co., 24 Conn.Supp. 324, 327, 190 A.2d 495 (1963); cf. Collins v. Scholz, supra, 34 Conn.Supp. 501 (concluding that defendant did not have a usual place of abode at his parents' house when defendant moved out of parents' house, taking all of his personal possessions; parents accepted mail addressed to defendant at their house; defendant, after moving out of parents' house, stayed there for two holidays; and parents could not communicate with defendant several months after he moved out. The co-plaintiffs have produced no evidence that contradicts or disputes the fact that the defendant did not reside at Farmington Woods. Thus, it is undisputed that Farmington Woods was not the defendant's usual place of abode at the time the marshal left process there.
The affidavit and computerized print-out that the co-plaintiffs submitted in conjunction with their opposing memorandum of law do not pertain to the jurisdictional issue of whether abode service of process was sufficient in the present case. Rather, to the extent that they are relevant, the co-plaintiffs' affidavit and the print-out address the merits of the present action.
Because the determinative jurisdictional fact is undisputed in the present case, the court need not hold an evidentiary hearing pursuant to
The co-plaintiffs also argue that abode service of process was sufficient in the present case because the defendant received actual notice of the present action. Here, mere notice is insufficient to satisfy the abode service provision of § 52-57(a) because the co-plaintiffs have not submitted any evidence that shows that the defendant was evading service of process. See Jimenez v. DeRosa, supra, 109 Conn.App. 339-40. " [O]ur courts are reluctant to recognize abode service where process is not left for the defendant at the place he is living at the time service is made, even in cases where the defendant receives actual notice of the action." Southern Air, Inc. v. Clements, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-09-5010079-S, 2009 WL 5698247, (December 24, 2009, Jennings, J.T.R.).
For the foregoing reasons the attempted abode service of process on the defendant was ineffective pursuant to General Statutes § 52-57(a) and the court lacks personal jurisdiction over the defendant. The motion to dismiss is granted. [This memorandum references Richard Thornburg and Lynette Thornburg, collectively, as the co-plaintiffs, and individually by name where appropriate.
Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 459 A.2d 503 (1983). As the Appellate Court has explained, " [i]n the absence of any disputed facts pertaining to jurisdiction, a court is not obligated to hold an evidentiary hearing before dismissing an action for lack of jurisdiction." Weihing v. Dodsworth, 100 Conn.App. 29, 39, 917 A.2d 53 (2007). To bolster, neither the co-plaintiffs nor the defendant requested a Standard Tallow hearing.