Opinion
HHDCV176074850S
11-14-2017
Frank Cabral et al. v. Susan L. Tremaine
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#108)
Cesar A. Noble, J.
The defendant, Susan Tremaine, advances in the present motion to dismiss for lack of personal jurisdiction, the assertion that abode service is not effective if service of process is not left at the defendant's actual abode. The plaintiffs object on the grounds that: (1) the defendant's failure to update her addresses with governmental agencies raises a question of material fact as to her actual address; (2) she is estopped from challenging her place of abode because she failed to change her address with various governmental agencies; and (3) actual notice overcomes the statutory requirements of actual or abode service required by General Statutes § 52-57(a). For the reasons detailed below, the court is not persuaded by the plaintiffs' arguments and the motion to dismiss is granted.
The plaintiffs' complaint alleges that they were injured in a motor vehicle accident which occurred on January 10, 2015 (" the accident"). They claim the defendant is liable to them because her negligence caused the accident and their injuries. The marshal's return identified service as having been accomplished by abode service at 35 Lilley Road, West Hartford, Connecticut, on January 9, 2017. On February 22, 2017, the defendant filed a timely motion to dismiss pursuant to Practice Book § 10-30(a)(2), which provides that a " motion to dismiss shall be used to assert . . . lack of jurisdiction over the person." The defendant claims that the attempted abode service failed because at the time of service, January 9, 2017, she no longer lived at 35 Lilley Road. The defendant attached to the motion to dismiss her affidavit which attests that she sold 35 Lilley Road on December 22, 2016 and had not lived there since then.
The plaintiffs, collectively referred to as such, are Frank Cabral; Christine Cabral; Noah Cabral, PPA Christine Cabral; Keira Murray, PPA Christine Cabral; and Lindsey Murray, PPA Christine Cabral.
The plaintiffs filed an objection to the defendant's motion to dismiss on April 21, 2017 based on the grounds that the police incident report of the accident identifies the defendant's address as 35 Lilley Road; the Connecticut Department of Motor Vehicle records related to the defendant's driver's license verify that 35 Lilley Road was her last known address as of April 14, 2017, and a computer printout from a website identified as " connvoters.com" indicates the defendant registered to vote at 35 Lilley Road on October 26, 2010 and was still registered there as of February 3, 2017. None of the documents were authenticated in any way. The plaintiffs argue that this data contradicts the defendant's claim that she no longer lived at 35 Lilley Road at the time of service. The plaintiff further argues that the defendant's failure to comply with the statutory requirement that a person holding a motor vehicle license issued by the Connecticut Commissioner of Motor Vehicles notify the commissioner of any change of address within forty-eight hours, General Statutes § 14-45(a), estops her from denying the propriety of the service. Finally, the plaintiffs argue the defendant's actual notice of this action reflects the lack of any prejudice. This motion was argued on November 6, 2017.
" [A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014). " [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 . . . The jurisdiction that is found lacking . . . is jurisdiction over the person . . ." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). " [I]n order to effectuate abode service, the 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" (Internal quotation marks omitted.) Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 857, 911 A.2d 1149 (2006).
A defendant who contests personal jurisdiction based on the adequacy of either abode or personal service bears the initial burden of proof " 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." (Internal quotation marks omitted.) Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007). " [A] defendant who contests the facts stated in the return bears the initial burden of disproving personal jurisdiction." (Emphasis omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 341, 951 A.2d 632 (2008). A defendant can accomplish this by introducing " sufficient evidence . . . to prove otherwise." (Internal quotation marks omitted.) Id., 339.
" [A]ffidavits are insufficient to determine the facts unless, like . . . summary judgment, they disclose that no genuine issue as to a material fact exists." (Citations omitted, internal quotation marks omitted.) Knutson Mortgage Corp. v. Bernier, 67 Conn.App. 768, 772, 789 A.2d 528 (2002). In turn, documents may be considered by a court on a motion for summary judgment only if they have been properly authenticated either by a certified copy or an affidavit by a person with personal knowledge of the offered evidence. Nash v. Stevens, 144 Conn.App. 1, 15-16, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013).
General Statutes § 52-57 controls the manner by which service of process upon individuals is to be accomplished. Section 52-57(a) provides in relevant part that " any civil action shall be served by leaving a true and attested copy of [process], including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." " [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." Bove v. Bove, 93 Conn.App. 76, 81, 888 A.2d 123, cert. denied, 277 Conn. 919, 895 A.2d 788 (2006).
In the present case, the defendant has met her initial burden of disproving personal jurisdiction by her affidavit which asserts that she sold her residence at 35 Lilley Road on December 22, 2016 and did not live there at the time service was attempted. Though the plaintiffs argue that the defendant's failure to have updated her address with various governmental agencies raises a question of material fact as to her domicile at the time of service, they do not offer any direct evidence that the defendant's actual abode was at 35 Lilley Road. Moreover, other than a. description of the documents in the plaintiffs' objection to the motion to dismiss, they have provided no authentication whatsoever regarding the documents purportedly obtained from various governmental agencies. " [I]t is well settled that statements of counsel are not evidence." (Internal quotation marks omitted.) Temlock v. Temlock, 95 Conn.App. 505, 517, 898 A.2d 209, cert. denied, 279 Conn. 910, 902 A.2d 1070 (2006). Thus, the court may not consider any of the documents attached to the plaintiffs' objection. The court finds that the undisputed evidence demonstrates that 35 Lilley Road was not the defendant's abode at the time of service of the complaint on January 9, 2017.
Even if the court were to consider the unauthenticated documents, the plaintiffs' arguments are not persuasive. In Jimenez v. DeRosa, our Appellate Court rejected the argument that a " defendant cannot rely on his change of residence because he failed to update his address on government records in order to evade service and deliberately disregarded actual notice of the litigation against him." Jimenez v. DeRosa, supra, 109 Conn.App. 339. " [A]n address on file with a government agency, in and of itself, could not establish a party's usual place of abode" for purposes of effective abode service. Id. Further, while the plaintiffs refer the court to a number of cases which address the application of the doctrine of equitable estoppel, only one case, Piorkowski v. Federal Express Corp., Superior Court, Docket No. 405352, 1998 WL 67417 (February 6. 1998, Levin, J.) touched on the doctrine in the context of service of process and then refused to consider it because it was not properly raised.
The court finds, without holding that estoppel is applicable to the present case, that the plaintiffs have not established a factual basis upon which the doctrine of estoppel could be applied. " There are two essential elements to an estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done." (Internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 236, 842 A.2d 1089 (2004). In the present case, the plaintiffs have not provided any factual basis to support the first element, that is, that the defendant acted with the intention or calculation to induce them to believe that 35 Lilley Road was her usual place of abode.
Finally, the plaintiffs argue that the defendant's actual notice, evidenced by her appearance in the action, obliges the court to liberally construe the statutory provision in § 52-57(a) addressing abode service. See e.g., Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 911 A.2d 1149 (2006) (liberal construction afforded § 52-57(a) where defendant received actual notice permits broad definition of the term " abode" such that affixing process on front gate of defendant's home, located in a gated compound, fell within ambit of " abode"). The plaintiffs have not, however, provided the court with authority for the proposition that actual notice of process eliminates entirely the need for service to be made at the defendant's actual abode. The statutory language and decisional history render clear the principle that the location of the abode service must actually be the defendant's abode. This court is not at liberty to re-write the statute to import provisions, such as the exceptions advanced by the plaintiffs, which are not clearly stated. Battersby v. Battersby, 218 Conn. 467, 470, 590 A.2d 427 (1991).
Because the evidence establishes that the service of process was not made at the defendant's usual place of abode the motion to dismiss is granted.