Opinion
CV166066337S
05-30-2017
Tara E. Menchetti v. Joy Bershtein
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#101)
Robin L. Wilson, J.
FACTS
On November 18, 2016, the plaintiff, Tara E. Menchetti, filed a one-count complaint against the defendant, Attorney Joy A. Bershtein. The plaintiff's complaint alleges that the defendant engaged in legal malpractice by failing to inform and advise the plaintiff, her client, of the statute of limitations applicable to her underlying civil action that arose out of a 2011 motor vehicle accident. The defendant moved to dismiss this action on January 6, 2017, on the grounds that this court lacks personal jurisdiction over the defendant due to insufficient service of process, and because the plaintiff's claim is barred by the applicable statute of limitations. On February 14, 2017, the plaintiff filed a memorandum in opposition to the defendant's motion and argued that she served sufficient process on the defendant at her usual place of abode and that, regardless of any statute of limitations defense the defendant may have, such defense does not implicate the court's subject matter jurisdiction and is required to be properly pleaded as a special defense. The court heard oral argument at short calendar on April 24, 2017. On that same date, the court held a Standard Tallow evidentiary hearing, and the defendant gave testimony and offered the following into evidence: (A) the defendant's affidavit; (B) the defendant's South Carolina rental agreement; and (C) the 68 Stony Creek Road lease for August 1, 2016, through May 8, 2017. The court then invited the parties to submit supplemental briefing by May 1, 2017, and both parties submitted supplemental memoranda on that date. The defendant filed with her supplemental brief the three exhibits offered into evidence during the evidentiary hearing, as well as an excerpt of the transcript from the hearing.
" When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).
For clarification and for purposes of this memorandum, these exhibits will be referred to as: (A) the defendant's affidavit; (B) the defendant's South Carolina rental agreement; (C) the 68 Stony Creek Road lease for August 1, 2016, through May 8, 2017; and (D) an excerpt from the transcript of the defendant's testimony from the April 24, 2017 Standard Tallow hearing.
DISCUSSION
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " A motion to dismiss shall be used to assert . . . insufficiency of service of process." Practice Book § 10-30(a).
I
Statute of Limitations
Ordinarily, a statute of limitations defense " must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless, " [when] . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation . . . but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time . . . and may not be waived." (Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012).
As a preliminary matter, the defendant's assertion that the statute of limitations bars the plaintiff from recovery and mandates this court to dismiss this action for lack of personal jurisdiction is improperly raised by the motion to dismiss. The plaintiff alleges that the defendant engaged in legal malpractice, a tort claim, which the defendant acknowledges in its memorandum in support of its motion. Def.'s Memo. in Supp., p. 7. Because this tort claim and its applicable statute of limitations exist at common law, the defendant is required to specially plead its statute of limitations defense. See Gianetti v. Connecticut Newspapers Publishing Co., Inc., 136 Conn.App. 67, 75, 44 A.3d 191 (" [statute of limitations] defenses are appropriately raised as special defenses . . . and not in motions to dismiss"), cert. denied, 307 Conn. 923, 55 A.3d 567 (2012). Accordingly, the court will not dismiss this action on this ground.
II
Insufficient Service of Process
" [A]n action commenced by . . . improper service must be dismissed." (Emphasis added; 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). " Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction . . . 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." (Internal quotation marks omitted.) Id., 401.
In the present case, the defendant contends that, although the marshal's return of service states that abode service was made on November 11, 2016, at 68 Stony Creek Road in Branford (68 Stony Creek), leaving process there was insufficient to confer jurisdiction over the defendant because 68 Stony Creek was not the defendant's usual place of abode at the time service was made. Rather, the defendant argues that she was, and had been, residing in South Carolina and claims that her residence there was her usual place of abode. In response, the plaintiff argues that abode service was properly effectuated. Specifically, the plaintiff argues that the marshal confirmed the defendant's abode by (1) obtaining an express representation from an employee at the defendant's law firm that the defendant resided at 68 Stony Creek; (2) checking the town land records for the defendant's address; and (3) checking with the TLO database available to the marshal as a civil officer. The plaintiff additionally argues that the defendant owned 68 Stony Creek, had resided there until a few months before service was made, and had actually received process.
The following additional facts, as testified to by the defendant and submitted as evidence on her behalf during the Standard Tallow hearing, are relevant to the court's determination of whether abode service was effectuated on the defendant. The defendant testified that she resided at 68 Stony Creek from January 2016, until August 11, 2016, at which time she leased a condominium in Isle of Palms, South Carolina, for six months; Def.'s Ex. B; because her youngest child was beginning college in Charleston, South Carolina. The defendant was looking to wind down her career and " find her next chapter." She rented 68 Stony Creek to a tenant from August 2016, until May 2017, and the lease shows that the rental term was from August 1, 2016, through May 8, 2017. Def.'s Ex. C. The tenant required the defendant to remove all of her belongings from 68 Stony Creek, and the defendant sold all of her belongings in anticipation of her move.
The defendant also testified to the following. The defendant filed a change of address form upon her departure in August 2016, from 68 Stony Creek, and then again in February 2017, when the defendant's South Carolina condominium lease ended. At that time, she changed her address back to 68 Stony Creek. The defendant filed her 2016 taxes using her South Carolina address, but requested a filing extension using her 68 Stony Creek address. The defendant testified that she did not believe she changed her address with the Statewide Grievance Committee, and that she believed her address for the Attorney Occupational Tax and Client Security Fund was listed as the address for her law firm.
The defendant testified that, although she returned to Connecticut in October 2016, for a wedding, she stayed at her father's house as she felt unwelcome at 68 Stony Creek. The defendant received actual notice on or about November 28 or 29, 2016, when she returned again to Connecticut and went to her home to retrieve her key and secure the home because the tenant had abandoned the property. The defendant stated that, because she was driving away from the home, she noticed papers in the door and returned to retrieve them. The papers were the process of this action.
It is unclear exactly when from the defendant's testimony, but, sometime between the October 2016 visit and when the defendant returned to Connecticut in November 2016, the defendant's tenant abandoned the defendant's home.
The defendant testified that, at the time of her departure from Connecticut in August 2016, she wanted to find a home in a warmer location, but knew that she would have to return to Connecticut to either sell her home or move back into the home. The defendant testified that she departed South Carolina on February 28, 2017, and traveled for six weeks before returning to Connecticut. Throughout the entirety of her testimony, the defendant referred to 68 Stony Creek as her " home" and, as of April 13, 2017, was residing there. The defendant has not listed the 68 Stony Creek property on the market for sale, and she currently does not have another contractual arrangement for lease of the property or other living arrangements.
" The Superior Court has no authority to render a judgment against a person who was not properly served with process." Jimenez v. DeRosa, 109 Conn.App. 332, 337, 951 A.2d 632 (2008). " [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." (Citations omitted; internal quotation marks omitted.) Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003). 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 is not effective if it is left at an address that is not the usual address of the party to be served, and an action commenced by such improper service must be dismissed." (Internal quotation marks omitted.) Jimenez v. DeRosa, supra, 338.
" In many cases, jurisdiction is immediately evident, as where the sheriff's return shows abode service in Connecticut . . . When, however, the defendant is a resident of Connecticut who claims that no valid abode service has been made upon her that would give the court jurisdiction over her person, the defendant bears the burden of disproving personal jurisdiction. The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of 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 unless sufficient evidence is introduced to prove otherwise." (Internal quotation marks omitted.) Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 855, 911 A.2d 1149 (2006) (construing term abode broadly for purposes of service of process), cert. granted, 282 Conn. 901, 918 A.2d 888 (2007), appeal withdrawn after S.C. grant of certification, 10/24/2007. " [A]n officer's return of abode service is prima facie evidence of the facts stated therein . . . [and] a defendant who contests the facts stated in the return bears the initial burden of disproving personal jurisdiction." (Citation omitted; emphasis in original.) Jimenez v. DeRosa, supra, 109 Conn.App. 341.
In the present case, the marshal's return provides that service was made at 68 Stony Creek, the defendant's usual place of abode, after the marshal confirmed the address of the defendant's abode by (1) checking with the law office; (2) checking the local land records; and (3) checking the TLO database available to the marshal which database reported that the 68 Stony Creek address was the defendant's current address as of November 11, 2016, the date the marshal effectuated service. Since the marshal's return of service is prima facie evidence that the defendant was served with process, the defendant bears the burden of disproving jurisdiction by demonstrating that 68 Stony Creek was not the defendant's usual place of abode at the time of service.
In her post-hearing brief in support of the motion to dismiss, the defendant contends that " it is the more likely and reasonable inference from the Marshal's return that if he spoke with an employee of a law firm to confirm Defendant's address it was an employee of Plaintiff's counsel's firm"; Pl.'s Post-Hearing Brief, p. 11; because the defendant testified that her office knew very well exactly where she was staying, and the defendant stayed in touch with the office. The defendant also testified, however, that " I am not sure who [the marshal] spoke to. It's a fairly big office staff with a fair amount of turnover . . . [T]here are six lawyers there. And there are probably eleven or twelve office staff, some part time . . . [S]o, I don't know. We don't have one set receptionist so I'm not sure." The defendant's assertion that the more likely and reasonable inference regarding which law firm the marshal spoke with is insufficient evidence to disprove jurisdiction. The defendant's testimony was not that no one from her office spoke with the marshal but, rather, that although her office knew where she was residing, the office has great turnover, eleven or twelve office staff, and no set receptionist. What the defendant actually testified to is that she does not know who at her office told the marshal she resided at 68 Stony Creek. Since it is the defendant's burden to disprove jurisdiction, this court will not speculate, as the defendant suggests this court do, whether the marshal meant that he spoke with the defendant's law office or the plaintiff's law office, where the defendant has not put forth any evidence indicating that the marshal had not contacted the defendant's law office.
" A usual place of abode does not mean domicile . . . Thus, a person may have two or more places of residence within a State, or in two or more states, and each may be a usual place of abode . . . Further, part-time residency is sufficient for process . . . Where a defendant simultaneously has two or more usual places of abode, he may lawfully be served with process at any one of them. Clegg v. Bishop, 105 Conn. 564, 569-70, 136 A. 102 (1927)." (Citations omitted; internal quotation marks omitted.) Jakubowski v. Wilcox, Superior Court, judicial district of New London, Docket No. CV-115840-S (December 7, 1998, Mihalakos, J.) (23 Conn.L.Rptr. 435, 436, ).
" Although presumptively the phrase usual place of abode in § 52-57(a) is the defendant's home at the time when service is made . . . courts have liberally extended the definition to places where the defendant was likely to receive process, at least where actual notice of the action is proven." (Citation omitted; footnote omitted; internal quotation marks omitted.) Pinto v. King, Superior Court, judicial district of Fairfield, Docket No. CV-16-6054517-S (January 5, 2017, Krumeich, J.) (63 Conn.L.Rptr. 662, 663, ). " [I]t is significant, though not conclusive, that the [defendant] actually . . . [receives] the process, thereby accomplishing the purpose of abode service. General Statutes § 52-57(a), authorizing abode service, should be construed liberally in cases in which the defendant received actual notice." Fine Homebuilders, Inc. v. Perrone, supra, 98 Conn.App. 861-62.
In Oake Ridge Homeowners Ass'n., Inc. v. Mera, Superior Court, judicial district of Hartford, Docket No. CV-14-6053878-S, (April 9, 2015, Rittenband, J.T.R.), the court found that abode service had not been effectuated where service of process was made on a property owned by the defendant in Windsor Locks, because the defendant had been a full-time resident of Ecuador for approximately four years before service was made. There, the court found that the evidence submitted, including an identification card issued by the Republic of Ecuador, a bank statement from a bank in Ecuador, and a one-year lease in Ecuador, coupled with the testimony that the defendant only returned once a year and lived with her husband in Ecuador for approximately four years, was sufficient to disprove jurisdiction. Id. The court specifically noted that, although the defendant did return to the Windsor Locks property once a year for a short period of time, she always returned to Ecuador. Id.
Connecticut courts have recognized jurisdiction, however, where defendants were served at homes that were part-time or vacation homes. See Jakubowski v. Wilcox, supra, 23 Conn.L.Rptr. 436, (jurisdiction over defendant served at vacation home); Shawmut Bank Connecticut v. Cook, Superior Court, judicial district of Middlesex, Docket No. CV-073915-S, (February 23, 1995, Walsh, J.) (abode service proper in Connecticut while defendant was in Hawaii because Connecticut home was secondary home when defendant present in Connecticut).
In Jakubowski v. Wilcox, supra, 436,, the court determined it had jurisdiction where service was made at the defendant's vacation home in Connecticut. Although the defendant did not aver to ever actually using the vacation home, the court determined it had jurisdiction, specifically because the defendant had received actual notice of the suit. In finding that jurisdiction had been conferred upon it, the court stated: " Though Marilyn Wilcox admits that she eventually did receive notice of the lawsuit, she attests that she did so only because her son found the summons and complaint while vacationing at the Connecticut property. While the affidavit of Marilyn Wilcox suggests that abode service may have been improper, the affidavit, nonetheless, is silent as to whether Marilyn Wilcox had actually ever used the cottage while on vacation. Where the defendant receives actual notice as to the initiation of a suit, the court must construe abode service in a liberal manner. See Plonski v. Halloran, supra, 36 Conn.Supp. 337. Several superior courts, accordingly, have found abode service proper in instances where the defendant's stay at the abode was of a temporary nature. See Shawmut Bank Connecticut v. Cook, supra, Superior Court, Docket No. 073915 (though the defendant was in Hawaii at the time of abode service at a Connecticut home, service was proper because the Connecticut home was a secondary home when the defendant was present in Connecticut); Bailey v. Mansour, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 393360, (October 16, 1991, Schaller, J.) (defendant only argued that he " principally" rather than " exclusively" resided in Massachusetts)." (Emphasis added.) Jakubowski v. Wilcox, supra, 436, .
In Pinto v. King, the court found significant that the process had been left in a doorway that was " entirely within [the] defendant's possession and control." Pinto v. King, supra, 63 Conn.L.Rptr. 662, . There, the defendant owned the vacant house at which service was left, and lived directly behind it. Id., 664, . The court found that, as the defendant owned the vacant home, the doorway there was entirely within her control. Id. The Pinto court also noted that process left at the doorway to the vacant house was " reasonably likely to be received by the defendant, and was received by her, so she had actual knowledge of the suit." (Emphasis added.) Id.; see also, Fine Homebuilders, Inc. v. Perrone, supra, 98 Conn.App. 855-57 (" service must be effectuated in a way reasonably calculated to provide actual notice"). In Fine Homebuilders, Inc. v. Perrone, the court held that abode service of process at a locked front gate of a gated single-family estate was sufficient to confer jurisdiction, because leaving such notice at the front gate was reasonably calculated to achieve putting the defendant on actual notice and did achieve the same. (Emphasis added.) Id.
In the present case, the defendant has failed to meet her burden of disproving jurisdiction. The evidence presented and testified to by the defendant demonstrates that, although the defendant was on what could easily be described as a prolonged vacation, during which she was attempting to find a new home, she knew she would be returning to 68 Stony Creek, and intended to return to either sell her home or resume residing there. Therefore, the defendant's part-time residency at 68 Stony Creek was sufficient for abode service. See Clegg v. Bishop, supra, 105 Conn. 569-70. The state marshal's abode service at 68 Stony Creek was reasonably calculated to provide actual notice to the defendant. Indeed, the defendant did receive actual notice of the suit upon her return to 68 Stony Creek in November 2016, when she returned to secure the home after the tenant's abandonment of the property.
Furthermore, at the time of service, 68 Stony Creek was entirely within the defendant's control. Similar to the defendant in Pinto v. King, where the defendant owned the vacant house at which service was left, and lived directly behind it, in the present case, 68 Stony Creek, a home owned by the defendant, was vacant. In addition, the defendant's own testimony that she returned to secure the property and to make sure the heat was on, demonstrates that the defendant was entirely in control of the property at that point, as the tenant no longer resided there. Accordingly, the method of service of process was reasonably calculated to provide the defendant with actual notice of this suit, and did in fact provide the defendant with such notice when she returned to 68 Stony Creek to care for her home.
The present case is distinguishable from Oake Ridge Homeowners Ass'n., Inc. v. Mera, supra . In that case, the court found that service of process, although made on a property owned by the defendant, was insufficient because the defendant had resided in another country for the four years prior to service being made. There, the court stated that although the defendant returned to Connecticut once a year, she always returned to Ecuador, and that the defendant's return to Connecticut once a year was not enough to confer jurisdiction. In the present case, the defendant failed to show that she intended to reside elsewhere permanently. The defendant, to the contrary, indicated that she knew she would be returning to Connecticut to possibly resume living in her home, and did so return on at least two occasions during the term of her lease in South Carolina. It is additionally worth noting that the defendant's South Carolina lease was only for six months and that the defendant traveled for six weeks before returning to reside at 68 Stony Creek. The evidence presented demonstrates that the defendant did not intend to permanently leave her residence at 68 Stony Creek, and that she continued caring for the home and returned there on multiple occasions during her leave, as evidenced by her testimony.
The defendant's absence from her home in Connecticut, whether categorized as a prolonged vacation or a search to find a new home, does not defeat personal jurisdiction, because the defendant testified that she intended to return to her 68 Stony Creek home, leased her South Carolina residence for only six months, failed to change her address with the Statewide Grievance Committee, received actual notice of this action, and continues to maintain that 68 Stony Creek is her home. Accordingly, the defendant has failed to meet her burden of disproving jurisdiction.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is denied.