Opinion
No. CV 03 0198017
September 30, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS
On November 19, 2003, the plaintiff, Gloria Lange, filed a declaratory judgment action against a number of defendants, including Joann Bianco, Joseph Bianco and Richard Bianco, as cotrustees of the Richard A. Bianco Greenwich Trust and/or the Joann Bianco Greenwich Trust. The plaintiff seeks a judgment declaring the restrictive covenant on her property, prohibiting the construction of structures greater than ten feet in height without the written consent of the owner or owners of the neighboring parcel, void and unenforceable. Title to the neighboring property is held by the defendants.
The other defendants named in the summons are Bickley Construction Company, Inc. Ken Burns Electrical Contractors, Inc., and Apex Glass and Aluminum Products, Inc. The plaintiff subsequently withdrew the action against Ken Burns Electrical Contractors, Inc. on December 2, 2003.
Hereinafter, the term "defendants" collectively refers to Joann Bianco, as trustee of the Richard A. Bianco Greenwich Trust, Richard Bianco, as trustee of the Joann Bianco Greenwich Trust, and Joseph Bianco, as trustee of both trusts.
On December 17, 2003, the defendants filed motion #102 to dismiss on the ground that the court lacks personal jurisdiction over Joseph Bianco because he was not properly served. "The motion to dismiss shall be used to assert . . . lack of jurisdiction over the person . . ." Practice Book § 10-31(a)(2). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however, as here, the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
The 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." (Internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 101-02, 733 A.2d 809 (1999). "Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Emphasis omitted; internal quotation marks omitted.) Connecticut Light Power Co. v. St. John, 80 Conn.App. 767, 772, 837 A.2d 841 (2004). "One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 234-35, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000).
The defendants move to dismiss the action as against Jospeh Bianco on the ground of insufficiency of service of process. They maintain that the abode service attempted by the plaintiff was improper because copies of the process had been left for Joseph Bianco at a place not his home. The plaintiff counters that abode service was proper as to Joseph Bianco, but even if it was not, she maintains that proper service on one trustee imputes proper service on all cotrustees. In response, the defendants maintain that there is no statutory or case law support for such a "constructive" service on a trustee.
In an amended return dated January 12, 2004, the marshal directed to serve process on the defendants states that he had left two copies of the process for Joseph Bianco at the address of the trust property.
General Statutes § 52-57 governs service of process upon individuals, municipalities, corporations, partnerships and voluntary associations. The section does not specifically provide for a distinct method of service on a trustee; therefore, the proper method of service falls within the "catch all" provision of General Statutes § 52-57(a). This provision allows for only two methods of service on a defendant within the state: (1) personal, "in hand" service, by actual manual delivery to the defendant himself or (2) abode service, by leaving a copy of the process at the defendant's usual place of abode. See Smith v. Smith, 150 Conn. 15, 19, 183 A.2d 848 (1962). In the absence of further or contrary legislative specifications, "in hand" and abode service "are the only ones generally authorized under Connecticut law for the purpose of obtaining in personam jurisdiction." Id., 20, n. 1.
Although General Statutes § 34-508 addresses service of process on trustees, this section is inapplicable to the analysis of the present case as it pertains only to statutory trusts. Whether either the Joann Bianco Greenwich Trust or the Robert A. Bianco Greenwich Trust qualifies as a statutory trust cannot be determined from the facts provided in the pleadings. Moreover, this provision does not expand on the permissible methods of service already established under General Statutes § 52-57(a).
General Statutes § 52-57(a) provides: "Except as otherwise provided, 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."
"Abode service . . . serves . . . the dual function of conferring jurisdiction and giving notice . . . Its chief purpose is to ensure actual notice to the defendant that the action is pending." (Citation omitted.) Id. It requires that "process be served by leaving it at the usual place of [the defendant's) abode." (Internal quotation marks omitted.) Hibner v. Bruening, 78 Conn.App. 456, 463, 828 A.2d 150 (2003). "Abode service is not effective if it is left at an address that is not the usual address of the party served, and an action commenced by such improper service must be dismissed." Id.
"`Abode' for purposes of General Statutes § 52-57(a) is the place where the defendant would most likely have knowledge of service of process and is generally recognized as the place where he is living at the time of service." Grayson v. Wofsey, Rosen, Kweskin Kuriansky, 40 Conn.Sup. 1, 3, 478 A.2d 629 (1984). Accordingly, our 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. See East Lyme v. Huntington, 22 Conn.Sup. 288, 169 A.2d 752 (1961) (determining dwelling where defendant maintained an office is not equivalent of defendant's usual place of abode); see also Grayson v. Wofsey, Rosen, Kweskin Kuriansky, supra (refusing to acknowledge service left at defendant's law firm address as proper abode service); Cohen v. Bayne, 28 Conn.Sup. 233, 257 A.2d 38 (1969) (finding improper abode service where process was left at defendant's previous residence even though defendant had actual notice of action); but see Plonski v. Halloran, 36 Conn.Sup. 335, 420 A.2d 117 (1980) (finding abode service where copy of process left for out of state defendant in hotel room where defendant was temporarily staying).
In this case, copies of the process had been left for Joseph Bianco, as trustee to both the Joann Bianco Greenwich Trust and Richard A. Bianco Greenwich trust, at the address of the trust property. This is not, however, the usual place of abode of Joseph Bianco, as evidenced by the affidavit of Richard Bianco stating that Richard Bianco has resided on the trust property since 1985 and that during this time Joseph Bianco has never lived with him. The plaintiff's failure to leave copies of the process at the abode of Joseph Bianco renders ineffective any attempted abode service on that defendant.
The plaintiff argues that a trust is analogous to a partnership, in that proper service on one trustee imputes proper service on the cotrustees, just as proper service on one partner is deemed proper service on the entire partnership. This argument is faulty, because, unlike service on a partnership, there is no statutorily specified alternative method for service on a trustee, as applicable to the circumstances of this case. Thus, service must be effected in accordance with one of the two methods prescribed in General Statutes § 52-57(a).
General Statutes § 52-57(d), governing service of process on a partnership, provides in relevant part that "[i]n actions against a partnership, service of process may be made by personally serving any process within the state upon any one of the partners . . ." (Emphasis added.)
Given that the plaintiff has made neither "in-hand" or abode service on Joseph Bianco, the service of process as to that defendant is insufficient and, accordingly, the defendants' motion to dismiss is granted.
So Ordered.
William B. Lewis, Judge