Opinion
No. CV05 4001863
September 29, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The defendant Frances Reed King, Administratrix of the Estate of Frances K. Field, has moved to dismiss this action on the grounds that she was not properly sued in her capacity as a non-resident fiduciary, because service of process was not made upon her by serving the Probate Judge in accordance with Connecticut General Statutes §§ 52-60 and 52-61. Defendant claims this Court has no personal jurisdiction over her and this action should be dismissed pursuant to Practice Book § 10-31(a)(2) and (a)(4).
I. PROCEDURAL BACKGROUND
This action was brought by Complaint dated December 20, 2004 and made returnable on February 8, 2005. Although the defendant was initially defaulted for failing to appear on May 12, 2005, on May 27, 2005, an appearance was filed on behalf of the defendant which automatically set aside the default. Defendant's Motion to Dismiss was filed on June 17, 2005, within 30 days of filing the appearance.
The Complaint alleges that plaintiff Bridgette Gomez was injured as a result of a December 21, 2002 motor vehicle accident that was allegedly caused by the negligence of the defendant's decedent, Frances K. Field.
Subsequent to the December 21, 2002 motor vehicle accident, Frances K. Field passed away and Frances Reed King, the defendant, was appointed Administratrix of the Estate of Frances K. Field by the Court of Probate, District of North Branford. In affecting service of process upon the defendant administratrix, the marshal made service by leaving a true and attested copy of the Writ, Summons and Complaint with the Secretary of State pursuant to section 52-59b and by mailing a copy by certified mail, return receipt requested, to Frances King, Administratrix of the Estate of Frances K. Field, at her residence, 2 Heritage Lane, Rye, New York. The receipt was returned signed. However, plaintiff did not make service of the complaint on the Judge of the North Branford Probate Court, which defendant claims is required to establish jurisdiction over a non-resident fiduciary under Connecticut General Statutes §§ 52-60 and 52-61.
II. STANDARD OF REVIEW
"Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." Kim v. Magnotta, 249 Conn. 94, 102 (1999). "The 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." (Citations omitted.) Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 195-96 (1993); see Practice Book §§ 10-31 and 10-32.
III. DISCUSSION
Defendant argues this action should be dismissed because service of process was never made on the Judge of Probate for the Town of North Branford and therefore this court has no personal jurisdiction over the nonresident fiduciary defendant, Frances Reed King. In relevant part, Connecticut General Statutes § 52-60(d) provides that:
Service upon the Judge of Probate as Attorney for the nonresident fiduciary shall be sufficient service upon the nonresident fiduciary, shall be made by leaving an attested copy of the process with such Judge of Probate, who shall forthwith give notice thereof to such executor, administrator, conservator, guardian or trustee.
Connecticut General Statutes § 52-61 provides as follows:
Process in civil actions against a nonresident executor, administrator, conservator, guardian or trustee, in his representative capacity, or in his individual capacity in any action founded upon or arising from his acts or omissions as such executor, administrator, conservator, guardian or trustee, may be served by leaving a true and attested copy thereof with a Judge of Probate in the district where the Estate is in settlement; and such Judge shall forthwith give notice thereof to such executor, administrator, conservator, guardian or trustee.
The defendant does not deny that service was made on her by certified mail. The defendant instead contends that Connecticut General Statutes. §§ 52-60 and 52-61 are the only proper means to serve a nonresident fiduciary in her representative capacity and that service under Connecticut General Statutes § 52-59b, the so-called "long-arm statute" is insufficient.
Plaintiff argues that these sections are not the exclusive means for service of process against a nonresident fiduciary since Connecticut General Statutes § 52-61 uses the term "may" instead of "shall." The Supreme Court of Connecticut has found that the word "may" ordinarily does not connote a command; rather the word generally imports permissive conduct and the conferral of discretion. Office of Consumer Counsel v. Department of Public Utility Control, 252 Conn. 115 (2000) Thus, plaintiff asserts Connecticut General Statutes § 52-59b is a possible means of service on a nonresident fiduciary of a Connecticut estate in addition to service in accordance with Connecticut General Statute § 52-59b.
In support of her position, defendant cites Hillebrand v. Landino, 1990 Ct.Sup. 4656, 3 Conn. L. Rptr. 49 and Berry v. Haight, 2004 Ct.Sup. 9563, 37 Conn. L. Rptr. 283. Both cases cite with approval Connecticut General Statute § 52-61 as the proper means of service on a nonresident administrator. However, in Hillebrand, the motion to dismiss was granted because the wrong person was sued as administrator and in Berry, the motion to dismiss was granted because no administrator had yet been appointed for the estate. Neither of these cases holds that § 52-61 is the exclusive method of effectuating service on a nonresident fiduciary. In fact, Hillebrand, specifically notes that "the estate is not before the court absent service of process pursuant to § 52-57 C.G.S. on the individual who serves as the administrator."
Here, proper service under Connecticut General Statutes § 52-59b was accomplished by certified mail on the nonresident fiduciary. In Anderson v. Schibi, 33 Conn.Sup. 562, 566 (1976), the Court held that Connecticut General Statutes § 52-59b(c) is not the exclusive method for service of process on an out-of-state defendant and that "if process is correctly served in a manner prescribed by 52-57a, the Connecticut court has personal jurisdiction over a nonresident defendant in an action brought under the long-arm statute." See also, Reeves v. Battle, 1999 Ct.Sup. 11533. Similarly, proper service with actual notice under § 52-59b should confer personal jurisdiction over a nonresident fiduciary of a Connecticut decedent.
In Galluzzo v. Board of Tax Review, 44 Conn.Sup. 39, at 42-43, (1995) ( 13 Conn. L. Rptr. 507), the Court stated, "It is the clear policy of modern law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. Our practice does not favor the termination of proceedings without a determination of the merits of controversy where that can be brought about with due regard to necessary rules of procedure. A trial court should make every effort to adjudicate the substantive controversy before it, and where practicable, should decide a procedural issue so as not to preclude hearing the merits." (Internal quotation marks and citations omitted.)
Accordingly, the provisions of Connecticut General Statutes § 52-61 are not exclusive where process was effectively served on the nonresident fiduciary defendant pursuant to § 52-59b. The motion to dismiss is denied.
So ordered.
Sequino, J.