Opinion
No. CV 91 0309954
March 4, 2010
MEMORANDUM OF DECISION RE MOTION TO REVIVE JUDGMENT (#136)
On October 6, 2009, the plaintiff, Investment Associates, filed a Motion to Revive Judgment pursuant to the newly enacted statute, General Statutes § 52-598(c). The defendant, Joseph D. Lancia, moved to dismiss the motion on November 5, 2009. The plaintiff filed a memorandum in opposition to the motion to dismiss on November 12, 2009 to which the defendant replied on November 23, 2009. Finally, the plaintiff filed a supplemental brief on November 23, 2009. The court heard oral argument on November 23, 2009. For reasons more fully set forth herein this court grants the motion to revive and denies the defendant's motion to dismiss the motion.
In its motion to revive, the plaintiff alleges that judgment was entered in its favor against defendants Summit Associates Incorporated, Ned B. Wilson and Joseph D. Lancia, in the amount of $272,530.03 on May 17, 1994. The plaintiff further alleges that no part of said judgment has been paid. By virtue of General Statutes § 52-598(c), the plaintiff moves to "revive" the May 17, 1994 judgment.
Defendant Lancia argues that he is entitled to dismissal for several reasons. First, he has resided in South Carolina since 1992 and is therefore, a non-resident individual over whom this court cannot exercise personal jurisdiction. Second, the defendant relies upon this court's ruling that it could not exercise personal jurisdiction over him in the matter of Investment Associates v. Lancia, Superior Court, judicial district of New Haven, Docket No. CV 07 4028746 (May 5, 2008, Robinson, J.) ( 45 Conn. L. Rptr. 437) as res judicata in this case. Third, the defendant argues that § 52-598(c) does not provide any provision pursuant to which this court can exercise personal jurisdiction over him. And finally, the defendant argues that General Statutes § 52-347 et seq., which describes postjudgment procedures, is also inapplicable to the present case.
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "If the defendant challenging the court's personal jurisdiction is a foreign corporation or a nonresident 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).
Section 52-598(c), which became effective October 1, 2009, states: "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."
The plaintiff claims, and the defendant does not dispute, that the period of time for enforcement of the judgment does not expire until May 16, 2014. Instead, the defendant argues that § 52-598(c) does not include any provision which would provide the court personal jurisdiction over him; and that the postjudgment provisions in the General Statutes are inapplicable to this action.
Section 52-598(a), in relevant part, states: "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 . . ."
Section 52-598(c) went into effect on October 1, 2009. As a newly enacted statutory section, there are no decisions addressing it. As such, the court will consider, as a matter of first impression, the language and legislative intent of § 52-598(c). The language of the statute is clear. Pursuant to the clear and unambiguous terms of the statute, as long as an action is still within the applicable period to enforce the judgment, a motion to revive it may be granted by the court. Therefore, this court concludes that the language of the statute is plain and clear, and that the statute is directly applicable to this lawsuit.
Even if one considered the language of the text to be ambiguous, the legislative history supports the application of the statute to this case. That history provides, in part, that "[t]his bill allows a party to file a motion to revive a judgment for money damages in Superior Court. The court can grant the motion if it finds that the time period to enforce the judgment has not expired. The bill prohibits an order to revive from extending the time period to enforce the judgment already set by law. The bill applies to judgments issued by Connecticut courts, including small claims cases." Number 09-215 § 1 of the 2009 Public Acts amended § 52-598 by adding subsection (c). Judiciary Committee File No. 737, concerning House Bill 6248, "An Act Concerning the Time Limit For Enforcing a State Court Judgment in a Foreign Jurisdiction."
Additionally, the Joint Favorable Report concerning House Bill 6248 states that the bill's enactment "[a]ffords residents with another tool to collect a valid judgment against a nonresident, for example if a judgment was rendered 11 years ago in Connecticut and the plaintiff seeks to enforce it in South Carolina, he or she cannot enforce the judgment because it is beyond the ten year period of collection allowed by South Carolina. This is despite the fact that the judgment is still enforceable in Connecticut." One of the bill's supporters was Michael R. Caporale, Jr., the lawyer who originally represented the plaintiff in this action. He reported the postjudgment history in this case as a reason for supporting the bill.
"I obtained a judgment in New Haven Superior Court for $272,731 but did not seek enforcement of the judgment at that time because the defendants lacked assets. Defendant then moved outside Connecticut. Some months later one defendant filed for bankruptcy while the other defendant's location in South Carolina was not ascertained until 11 years after the judgment. I was advised by the attorney from South Carolina I obtained to represent my clients that according to South Carolina law the time limit enforcing a judgment was ten years. Therefore, any attempt to enforce the judgment in South Carolina was doomed to fail." See Joint Favorable Report, concerning House Bill 6248.
It is clear from both the express language of the statute and the legislative history that § 52-598(c) was enacted in order to allow a plaintiff to revive judgments, such as the one presently before the court, within the allowable time period. Therefore, this court finds that § 52-598(c) confers jurisdiction over the defendant based upon the May 17, 1994 judgment entered by this court. In other words, § 52-598(c) appears to be a "revival statute," which confers the court's continuing jurisdiction, both subject matter and personal, resulting from the defendant's participation in the action in which judgment was originally rendered against him.
In this way, this action is distinguishable from Investment Associates v. Lancia, supra, 45 Conn. L. Rptr. 437, where the court found that although there was subject matter jurisdiction over the defendant to enforce the 1994 judgment, the prior litigation was insufficient to provide personal jurisdiction over the defendant under § 52-59b, Connecticut's longarm statute. In Investment Associates v. Lancia, supra, 45 Conn. L. Rptr. 437, the plaintiff commenced a new action in 2007, to enforce the 1994 judgment. In the instant matter, unlike in the previous lawsuit, the court is confronted with a motion to revive the 1994 judgment, based upon the newly enacted § 52-598(c). Thus, the court's previous finding in the prior action that it lacked personal jurisdiction over the defendant, does not preclude a finding that § 52-598(c) confers personal jurisdiction over the defendant in this action.
In regard to subject matter jurisdiction, the court stated: "[T]he defendant was engaged in a joint business venture in Connecticut, which gave rise to a legal dispute in 1991, which resulted in a Connecticut judgment in 1994. The plaintiff is within the twenty-five year statute of limitations of bringing an action on the prior judgment [pursuant to § 52-598(a)], because the present action was brought on November 13, 2007. This confers subject matter jurisdiction upon the court." Id., 438.
In regard to personal jurisdiction, the court stated: "[T]here is no dispute that the defendant is a nonresident who has not been a resident of this state for over 15 years. And, there are no allegations or claims that the defendant has had any contact with or transactions within Connecticut since the 1994 judgment entered against him. Therefore, the question for this court is: whether or not the 1994 judgment, alone, constitutes a sufficient business transaction within the state of Connecticut to allow this court to exercise personal jurisdiction over the defendant." Id., 439. "Connecticut case law does not provide any precedents for construing the past litigation as constituting a sufficient business transaction to provide personal jurisdiction to a Connecticut court. In fact, although there are no cases directly on point, the cases in which courts have found sufficient contacts to establish personal jurisdiction, generally, involve defendants who have engaged in contemporaneous activities in Connecticut or who have had direct and recent contact with Connecticut. According to the record, the defendant in the instant matter has had no contact with Connecticut since the mid-90s. Accordingly, this court concludes that the prior litigation, which was concluded 14 years ago, is insufficient to provide personal jurisdiction over the defendant under § 52-59b." Id. The court then went on to address the issue of due process and noted that the same factors were relevant. See id. Therefore, the court found that the plaintiff failed to meet its threshold burden of showing minimum contacts and ultimately held that it did have personal jurisdiction over the defendant, even though Connecticut courts had a valid interest in enforcing a valid judgment. See id., 440.
In addition, the court notes that revival of judgment procedures and/or statutes have passed constitutional muster in other jurisdictions. See, e.g. Watkins v. Conway, 385 U.S. 188, 17 L.Ed.2d 286 (1966), Huff v. Pharr, 748 F.2d 1553 (11th Cir, 1984); Cadle Co. v. Fiscus, 163 Cal.App. 4th 1232 (2008), Kronstadt v. Kronstadt, 238 N.J.Super. 614, 570 A.2d 485 (App.Div. 1990). See, also Von Hake v. Thomas, 858 P.2d 193, 195 (Utah App. 1993), ("The adherence of American jurisdictions to this position is unmistakable in cases dealing with questions of in personam jurisdiction. See, e.g., Bank of Edwardsville v. Raffaelle, 381 Ill. 486, 45 N.E.2d 653 (1942) (Action to renew money judgment is not a new suit but a continuation of the old one); Bahan v Youngstown Sheet Tube Co., 191 So.2d 668, 670 (La.App 1966) (proceeding to revive a money judgment entered against a nonresident judgment debtor is not a new action but is only a proceeding to continue the original action); State v. Kirkwood, 361 Mo. 1194, 239 S.W.2d 332, 334 (1951) (en banc) (action to revive a divorce is not a new action but is merely a continuation of and supplementary to the original proceeding) . . . Berly v. Sias, 152 Tex. 176, 255 S.W.2d 505, 508 (1953) (action to renew a money judgment is not an independent suit but merely a continuation of the original suit); Duffy v. Hartsock, 187 Va. 406, 46 S.E.2d 570, 574 (1948) (proceeding to revive a judgment lien against real estate is to be treated as a continuation of the original suit)").
In Watkins v. Conway, supra 385 U.S. 188, the United States Supreme Court noted with favorability Florida's procedure to revive judgments. In Watkins, the plaintiff was unable to pursue a post-judgment claim because the Georgia statute of limitations for non-resident debtors was shorter than the one for resident debtors. The Supreme Court declined to find that this violated equal protection by drawing an impermissible distinction between foreign and domestic judgments. See id., 190. In doing so, it noted that all the plaintiff needed to do was return to Florida, where the original judgment was rendered, and revive his judgment. See id. Because the Florida statute of limitations on domestic judgments was twenty years, he had ample time to revive his judgment and could then come back to Georgia within five years and file suit. See id.
In Huff v. Pharr, supra 748 F.2d 1553, the Eleventh Circuit allowed a California debtor to revive a 1975 California judgment against a debtor who resided in Florida. After the creditor was unable to domesticate the judgment in Florida because the limitations period had expired, he returned to California and obtained a "renewed 1975 judgment" which resulted in the entry of a default judgment against the debtor. See id. In reliance upon Watkins v. Conway, supra, 385 U.S. 188, the Eleventh Circuit found that California had jurisdiction to enter the new judgment because the debtor had the requisite minimum contacts with California for the courts to exercise personal jurisdiction over him. Since the action involved a claim uniquely connected with the debtor's previous forum-related activities, it was not unfair to require him, when properly served, to submit again to the jurisdiction of the California courts in a suit based upon a judgment previously entered in an action involving the same claim. See id., 1555.
Likewise, the California Appellate Court in The Cadle Co. v. Fiscus, supra, 163 Cal.App. 4th 1232, allowed the initiation of an independent and separate action against the out-of state defendant to enforce a judgment previously obtained in California. Relying on reasoning applied in cases arising out of revival or renewal actions, the California Appellate Court held that "[t]here is nothing unreasonable about subjecting [the out of state defendant] to the jurisdiction of California courts in an independent action to renew the 1992 judgment . . . Money judgment was entered against [the out of state defendant] in California, and he failed to pay his obligations. We cannot agree the passage of time between the original California litigation and the revival action, during which [the out of state defendant] had no additional contacts with the State of California, defeats personal jurisdiction as concerns the enforcement of the 1992 judgment." Id., 1240-41.
Similarly, in Kronstadt v. Kronstadt, supra 238 N.J.Super. 614, the Appellate Court of New Jersey concluded that revival action was merely a continuation of the previous action. In that case, the plaintiff ex-wife sought and obtained at the trial court the revival of two judgments that she earlier obtained against defendant ex-husband in New Jersey. Both judgments were entered in 1982. See id. When the plaintiff obtained the revival, the defendant was residing in Florida, which permitted enforcement of foreign judgments only within five years of the judgment's original rendering. See id. The defendant contended that from a time shortly after the entry of the original judgments he had been a resident of Florida and had no substantial contacts with New Jersey since that time. See id. The plaintiff argued that the original jurisdiction obtained over the defendant was sufficient to warrant the revival of the judgments. See id. The court affirmed the trial court's ruling, and held that because the procedure was merely a continuation of the action that resulted in the original judgments, the renewal judgment was properly entered. See id., 618. The court also noted that "the elements to be proven when a judgment is revived are: (1) the judgment is valid and subsisting; (2) it remains unpaid in full, or, in part . . . and (3) there is no outstanding impediment to its judicial enforcement, e.g., a stay, a pending bankruptcy proceeding, an outstanding injunctive order, or the like." Id.
The court agrees with the above-cited reasoning of courts in other jurisdictions and concludes that conferring personal jurisdiction over the defendant pursuant to § 52-598(c) in the present action does not violate due process. The court has both subject matter jurisdiction over the action, pursuant to § 52-598(a), and personal jurisdiction, pursuant to § 52-598(c). Furthermore, the finding by this court on the issue of personal jurisdiction in Investment Associates v. Lancia, supra, 45 Conn. L. Rptr. 437, does not constitute res judicata.
In conclusion, the court grants the plaintiff's motion to revive the May 17, 1994 judgment, pursuant to the newly enacted § 52-598(c) and denies the defendant's motion to dismiss the motion to revive for lack of personal jurisdiction.