Opinion
No. CV04-4000951
June 3, 2005
MEMORANDUM OF DECISION
One of the defendants, Albert LeBrun, in this foreclosure action has filed a timely motion to dismiss the complaint on the grounds of improper service of process. The parties were afforded the right to an evidentiary hearing and oral argument before this Court on June 1, 2005. The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact
1. Mr. Albert LeBrun is the first named defendant in a case now pending in the judicial district of Tolland, under Docket Number CV04-4000951. The plaintiff seeks foreclosure of the property at 911 Foster Street Extension in the town of South Windsor, CT.
2. On October 5, 2004, the plaintiff prepared a summons and complaint that was alleged to have been served upon the defendant Albert LeBrun, at his usual place of abode on October 14, 2004 by Sharon Uhlman, Connecticut State Marshal for Tolland County. The said writ was attached to the door handle of an exterior screen door at the front door of the usual place of abode for the defendant, LeBrun, for the screen door was locked and Marshal Uhlman was unable to gain access to the interior of the house.
3. At an unspecified date between October 14, 2004 and October 28, 2004, defendant LeBrun's wife noticed that something was attached to the exterior of the front screen door while she was engaged in raking leaves and handed him the writ.
4. The defendant LeBrun does not currently use, and for the past six years has not used, the front door to his home.
5. Additional facts shall be discussed as necessary.
Discussion of Law
The proper service of process is an integral critical part of a lawsuit. "The Superior Court . . . may exercise jurisdiction over that 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." Kim v. Magnotta, 249 Conn. 94 (1999). It is clear in this case that the defendant, LeBrun, is not consenting to jurisdiction of the court nor waived his objection. Consequently, in order for the case to proceed against Mr. LeBrun, the Court must be convinced that there is personal jurisdiction over him.
At the evidentiary hearing, Mr. LeBrun attempted to assert that the service of process was defective as to one or more of the other defendants. While this may be true, it is not a matter for the defendant LeBrun to raise. To the extent that there are any defects in the service of process as regards other defendants, this decision does not apply. Those defendants have, at least so far, not raised any issue about the service of process.
Process may be served on a defendant in accordance with CGS § 52-57 which provides 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." Ordinarily, the return of the marshal will suffice to establish personal jurisdiction over a defendant. "In many cases jurisdiction is immediately evident as where the sheriff's return shows abode service in Connecticut." Standard Tallow Corp. v. Jowdy, 190 Conn. 48 (1983). Indeed, in this case, the marshal's return does reflect that proper abode service was made in this case. Standing by itself, then, this return would be sufficient to give the court personal jurisdiction. Notwithstanding, the defendant, LeBrun, has filed a motion to dismiss, alleging that the abode service was defective. "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." Standard Tallow Corp. v. Jowdy, 190 Conn. 48 (1983).
"And again on the 14th day of October 2004, I made due and legal service upon the within named defendant Albert LeBrun, by leaving a verified true and attested copy of the original Writ, Summons, Complaint, Statement Re: Amount in Demand, and Schedule A at the usual place of abode, 911 Foster Street Extension in said Town of South Windsor." Attestation by state Marshal Sharun Uhlman.
In support of his motion to dismiss, the defendant has submitted an affidavit to establish that the process was left on an exterior screen door, attached to the door handle with a rubber band. Ordinarily. "affidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists." Standard Tallow Corp. v. Jowdy, supra at 56. "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." Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607 (1996). Accordingly, the Court afforded an opportunity for an evidentiary hearing into the manner of service of process.
Both parties did agree that the fact of the attachment of the process to the locked outer screen door was true. This fact, established through affidavit of both the defendant and the marshal, is therefore not in dispute and the Court will accept the averments in the affidavits as to this point to be true. The defendant, LeBrun, took the stand and testified under oath that he was never personally served and that his wife happened to find the process attached to the outer screen door of his home. He further testified that this front door to his home is locked, because it is broken and he has not used it for years. The plaintiff chose not to introduce any evidence on the motion.
It must be noted, however, that there were numerous other matters contained within these affidavits that are the subject of some dispute between the defendant and the plaintiff. Those portions of the affidavit are not accepted as evidence in connection with this motion to dismiss.
The determinative question in this motion then revolves around determining whether the attachment of papers to the exterior door of a defendant's residence constitutes proper abode service. The plaintiff argues that it was clear that the defendant, LeBrun, had notice of this lawsuit before the return date of November 9, 2004. Notice, however, is but one purpose of the service requirements. "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, however, is jurisdiction over the person, not the subject matter." (Internal citations omitted.) Commissioner of Transportation v. Kahn, 262 Conn. 257 (2003). Proper service is a necessity to the court exercising personal jurisdiction over the defendant.
It is obvious that anytime a defendant files a motion to dismiss for improper service, that the defendant has somehow gotten notice of the lawsuit. To argue that notice is the sole purpose of the service requirement would mean that the very act of filing a motion to dismiss would mean that such motion should be denied because there is no way that a party could file the motion without having received notice. This is nonsensical.
The facts surrounding the service of process on this case demonstrate that the service was deficient. There is no dispute that the defendant, LeBrun, was not served personally and that it was abode service that was attempted. There is no challenge that the address at which this took place was defendant LeBrun's abode. There is no dispute that the papers were attached to an exterior handle of a locked screen door at the front of the house. "While pinning, tying or otherwise attaching a complaint to an outside door, where the complaint is subject to a number of outside influences over which the party to be served has no control, is generally not sufficient to constitute effective service, yet where the complaint is left inside the confines of the dwelling by slipping it beneath the door, the service has been held permissible." Pozzi v. Harney, 24 Conn.Sup. 488, 491 (1963). In order for abode service to be effective, the papers must be placed "at least partially within the abode itself or with a statutorily eligible occupant." Evans v. Evans, 7 CSCR 1312 (Walsh, J., November 12, 1992) ( 7 Conn. L. Rptr. 566).
Given the evidence produced before this court at the evidentiary hearing, it is clear that the process was left outside of defendant LeBrun's abode by the state marshal. Under applicable case law, it is equally clear that abode service requires at least partial placement of the process within the confines of the defendant's abode. The failure to do so then is a defect in the service of process and the motion to dismiss must be granted.
The plaintiff cites to Zingarelli vs. Dignan, 1994 Ct.Sup. 5433, 9 CSCR 630 (Maiocco, J., May 20, 1994) as authority to support the placement of the process at the exterior of a defendant's abode as sufficient. However, this Court notes that there are several key facts that were present in the Zingarelli case that were not proven in the instant case. Notably, the defendant there had been notified that the sheriff was attempting to serve process and she actively took steps to avoid being served. No such evidence, despite having been provided with an opportunity to present evidence to this Court, was introduced by the plaintiff.
Accordingly, Defendant Albert LeBrun's Motion to Dismiss is granted.
S.T. Fuger, Jr., Judge