Opinion
CV186035005S
07-18-2019
Marcia PELLA v. Myhanh VU et al.
UNPUBLISHED OPINION
OPINION
Knox, J.
The defendant moves to dismiss the plaintiff’s complaint dated March 16, 2018, pursuant to Practice Book § 10-30 for lack of personal jurisdiction, insufficiency of process and insufficiency of service of process. For the foregoing reasons, the motion to dismiss is granted.
FACTS
The plaintiff, Marcia Pella, brought this action against the defendant, Myhanh Vu, pursuant to General Statutes § 52-592(a), the accidental failure of suit statute, by complaint dated March 16, 2018. The complaint is set forth in two counts alleging in count one that Vu, the treating dentist, was medically negligent in her treatment of the plaintiff, and in count two, alleging that Aspen Dental Management, Inc., the business, is strictly liable for Vu’s negligence because it was her employer. The marshal’s return of service, dated March 20, 2018, states that "on the 22nd day of March 2018, I made due and legal service upon the within named defendant Myhanh Vu, DMD by leaving a true and attested copy of the original writ, summons and complaint and certificate at the office of the Secretary of State of Connecticut ..." (#100.30). It further states that "on the 22nd day of March 2018, I deposited in the Post Office at Hartford, postage paid and certified return receipt requested, a true and attested copy of the original writ, summons and complaint and certificate ... addressed to the within named defendant Myhanh Vu, DMD, 816 Brant Drive, New Castle, DE 19720."
There are two defendants in this case, but only Vu moves to dismiss the plaintiff’s complaint and, as such, all references to the defendant herein exclusively refer to Vu.
Section 52-592(a) provides: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of non-suit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."
A prior action by the plaintiff against the defendant was dismissed. Pella v. Vu, judicial district of New London, Docket No. CV-17-6030155-S (August 4, 2017, Bates, J.) (order 101.01).
In support of the motion to dismiss (#120), the defendant filed a memorandum of law (#121) and her sworn affidavit (#122). In her affidavit, the defendant states that she did not live at 816 Brant Drive in New Castle, Delaware at the time the complaint was mailed; rather, she had purchased a home two months prior to that date, and moved a month prior to that date. Def. Aff. (#122), ¶¶4-6. The defendant further states that she never received a copy of summons and complaint in this action from a Connecticut State Marshal either by mail or otherwise. Id., ¶8. In response, the plaintiff filed her objection (#123), contending that the defendant waived personal jurisdiction by the appearance of counsel and the service was made to the "last known address" as required by the General Statutes § 52-57b(c). The defendant filed a reply memorandum (#124) and a supplemental affidavit (#125) in which the defendant states: "At no time did I ever receive notification from either the Court or the law firm of Stockman O’Connor, PLLC that Stockman O’Connor had purported to file an appearance on my behalf in this action or to serve as my attorney of record in this action." Def. Suppl. Aff. (#125), ¶4.
DISCUSSION
A motion to dismiss shall be used to assert "(2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." Practice Book 10-30(a). "A motion to dismiss tests whether ... on the basis of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 527, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014). "[T]he ... 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 jurisdiction ... [S]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court’s exercise of [personal] jurisdiction over that party ... Therefore, [p]roper service of process is not some mere technicality ... [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 ... [A]n action commenced by such improper service must be dismissed ... Facts showing the service of process in time, form and manner sufficient to satisfy the requirements of mandatory statutes ... are essential to jurisdiction over the person ... There is a presumption of truth in matters asserted in the marshal’s return of service." (Citations omitted; internal quotation marks omitted.) Id., 530-31.
In the present case, the defendant was an out-of-state resident. Therefore, the plaintiff was required to serve the defendant by complying with the mandates of General Statutes § 5259b(c), which provides, in relevant part, that process: "may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual, foreign partnership or foreign voluntary association personally. The process shall be served by the officer to whom the same is directed upon the Secretary of the State by leaving with or at the office of the Secretary of the State, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at the defendant’s last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State." (Emphasis added.)
The statute has two service requirements. The first was to serve the Secretary of State, which, according to the marshal’s return, was done on March 22, 2018, despite the return of service bearing a date of March 20, 2018, two days prior to service. The second requirement is that process must be sent to the defendant’s "last known address." The defendant claims that the address identified in the marshal’s return is not her "last known address."
The meaning of "last known address" has been considered by both our Supreme Court, in Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 393, 949 A.2d 450 (2008), and, more recently, by the Appellate Court in Matthews v. SBA, Inc., supra, 149 Conn.App. 527. The "last known address" requirement of § 52-59b(c) "does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is by those who under ordinary circumstances of life would know it." (Internal quotation marks omitted.) Matthews v. SBA, Inc., supra, 532, citing Cadlerock Joint Venture II, L.P. v. Milazzo, supra, 393.
In Cadlerock Joint Venture II, L.P. v. Milazzo, supra, 392, the defendant left for the United Arab Emirates, but the defendant’s wife remained at his North Haven property while he was away, and thereafter, the defendant’s mail was forwarded to the home of his wife’s uncle in Texas. The plaintiff failed to make service at either of these addresses, which were the defendant’s actual addresses. Id., 393. Thus, the action never commenced as to the defendant, which resulted in the statute of limitations running, entitling the defendant to judgment as a matter of law on the defendant’s motion for summary judgment. Id., 392-93, 395. The Court explained that the last known address of a defendant will apply to those circumstances where the defendant has "departed for parts unknown." Id., 393.
In Matthews v. SBA, Inc., supra, 149 Conn.App. 533, the Appellate Court concluded that the individual defendant had not departed for parts unknown and the address to which service was made was not his actual address. The Court affirmed the dismissal of the action because service was not effected as to the individual defendant in compliance with § 52-59b(c), noting that the plaintiffs did not sustain their burden of proving that they engaged in "diligent and persistent efforts" to determine the actual address of the defendant. Id., 533-34 (relying on two-year-old federal election commission records inadequate).
In the present case, the defendant’s address at the time of service was not the address to which service was made. There is no dispute that the defendant’s actual address was different from the address on the marshal’s return. The marshal’s return includes a statement that the mailing of process to 816 Brant Drive in New Castle, Delaware was sent "certified, return receipt requested." The record does not contain any return receipt. The plaintiff does not claim that the defendant left for "parts unknown." The defendant’s affidavit states that after she moved on February 14, 2018, she "no longer maintained or used that [prior] address as a mailing address." Def. Aff. (#122), ¶7. The court does not find that the defendant left for "parts unknown," but rather that she purchased a home two months prior to the date of the claimed service and moved to that home.
The plaintiff proffered the affidavit of Marshal Sullivan, who is not the marshal who made the return of service. Compare Pl. Ex. C and (#100.30). Marshal Sullivan states that in March 2018, he purportedly verified the defendant’s abode address of 816 Brant Drive on an internet service. Absent from this statement is evidence of diligent efforts to determine the defendant’s actual address. Verification of a prior address does not equate to reasonable efforts to determine a defendant’s actual address. Cadlerock Joint Venture II, L.P. v. Milazzo, supra, 287 Conn. 393; Matthews v. SBA, Inc., supra, 149 Conn.App. 532. The court concludes that there is insufficient service of process pursuant to the statute to confer jurisdiction over the person of the defendant in this matter.
The court finds that service of process did not comply with the mandates of § 52-59b(c) in that the address that process was mailed to was not the defendant’s last known address. As such, the court does not have jurisdiction over the defendant, a nonresident individual, unless the defendant waived personal jurisdiction, which is exactly what the plaintiff argues the defendant has done.
Because the court has determined that it lacks personal jurisdiction over the defendant due to insufficiency of service of process, the court need not reach the defendant’s other ground that process itself was insufficient.
"It has long been established that a court cannot acquire jurisdiction over a party as a result of an attorney filing an appearance unless the filing of that appearance is authorized." Pitchell v. Hartford, 247 Conn. 422, 429, 722 A.2d 797 (1999). "[T]he filing of an appearance on behalf of a party, in and of itself, does not waive that party’s personal jurisdiction claims. Nevertheless, [a]ny defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. Practice Book § 10-30. The rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6 ... Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court. Any claim of insufficiency of process is waived if not sooner raised ..." (Footnotes omitted; internal quotation marks omitted.) Id., 432-33.
This claim requires a further examination of the record in this case. On May 10, 2018, after this case was commenced, an appearance for the defendant was filed by the law firm Stockman O’Connor, PLLC (Stockman O’Connor). On August 3, 2018, Stockman O’Connor filed a motion for order (#104) informing the court that its appearance was inadvertently filed on behalf of the defendant. The motion was denied without prejudice for noncompliance with Practice Book § 3-10. On January 4, 2019, Stockman O’Connor filed a second motion for order (#112) to withdraw again informing the court that the appearance filed for the defendant was in error, which was denied (#121.10) without prejudice for noncompliance with Practice Book § 3-10. On February 4, 2019, Stockman O’Connor filed its third motion for permission to withdraw (#115), once again informing the court that its appearance for the defendant was filed in error, which was granted (#115.01). The plaintiff filed a motion to default (#119) the defendant for failure to appear on May 9, 2019. On May 16, 2019, an appearance, as well as the present motion, was filed by counsel on behalf of the defendant. The plaintiff’s motion to default was denied (#119.10) by the clerk on May 17, 2019.
The defendant’s affidavit supports Stockman O’Connor’s representation in its motions to withdraw that it filed the appearance on behalf of the defendant in error. In the defendant’s first affidavit, she avers that she never engaged nor has been represented by Stockman O’Connor. Def. Aff. (#122), ¶¶9, 10. She further states in her supplemental affidavit at no time did she "receive notification from the Court or the law firm of Stockman O’Connor, PLLC that Stockman O’Connor had purported to file an appearance on [her] behalf in this action or to serve as [her] attorney of record in this action." Def. Suppl. Aff. (#125), ¶4.
While personal jurisdiction can be created through consent or waiver, the court does not find either in the present case. First, there is no evidence of consent, nor has the plaintiff claimed consent. Moreover, consent cannot be created by the unauthorized filing of an appearance. Pitchell v. Hartford, supra, 247 Conn. 429. Second, the defendant did not waive her ability to challenge the court’s personal jurisdiction over her. The defendant’s authorized attorneys, the law firm of Verrill Dana, LLP, filed an appearance on the defendant’s behalf on May 16, 2019. On the same day, the defendant filed her motion to dismiss. Clearly, the defendant raised her claims that the court lacks personal jurisdiction over her within the thirty-day period of filing a proper, authorized appearance. Practice Book § 10-30; Pitchell v. Hartford, supra, 429, 432-33.
Nevertheless, the plaintiff relies on Pitchell v. Hartford, to support her argument that the defendant waived any personal jurisdiction claim. The plaintiff’s reliance on this case is misplaced because in that case, the law firm entered an appearance on behalf of two defendants. More than four months later, the law firm filed a motion to withdraw its appearance based on a conflict of interest in representing both defendants. Id., 430. Unlike this case, there was no claim in Pitchell v. Hartford, that the law firm filed the appearance in error or that the law firm was not authorized to represent the client before the court. Because Stockman O’Connor was not authorized by the defendant to file an appearance on her behalf and because it notified the court of the error in filing the appearance on several occasions, the defendant did not make a knowing waiver of her right to challenge personal jurisdiction.
CONCLUSION
For the foregoing reasons, the court lacks personal jurisdiction over the defendant, Myhanh Vu. Accordingly, the plaintiff’s action is dismissed as to her.
So ordered.