Opinion
HHDCV166070846S
05-24-2017
Sonifi Solutions, Inc. fka Lodgenet Interactive v. LMN HIX, LLC dba Holiday Inn Express et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION TO DISMISS (#104)
Susan A. Peck, Judge.
On August 23, 2016, the plaintiff, Sonifi Solutions, Inc., f/k/a Lodgenet Interactive Corporation, commenced this action seeking to recover damages for the unpaid balance of goods and services purchased by the defendants, LMN HIX, LLC d/b/a Holiday Inn Express and Paul Khakshouri. The complaint alleges, inter alia, breach of contract and unjust enrichment.
On October 26, 2016, the defendant filed a timely motion to dismiss the plaintiff's complaint on the ground that the court lacks personal jurisdiction over him in that he was not served with process, and therefore, the plaintiff has failed to comply with General Statutes § 52-57(a). The marshal's return of service states that abode service was made by " leaving a verified true and attested copy of the original Writ Summons, Complaint and Statement of Amount in Demand at the usual place of abode of the within named defendant, Paul Khakshouri, at 338 Asylum Street, Hartford, Connecticut" (338 Asylum), the address of a twelve-story hotel where the defendant maintains an apartment. In support of his motion, the defendant contends that his usual place of abode is an apartment within the hotel, and that process was left with the hotel's front desk clerk who is not authorized to accept service for him. This contention is supported by the defendant's own affidavit and that of the front desk clerk, Joshua Prendergrass, and is not disputed by the plaintiff. The defendant further argues that the plaintiff's attempt at " supplemental service" is a nullity, because § 52-57(a) does not authorize the Secretary of the State to accept service on behalf of a resident individual.
General Statutes § 52-57. " Manner of service upon individuals, municipalities, corporations, partnerships and voluntary associations. (a) 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."
By way of opposition, the plaintiff counters in its memorandum of law, filed November 8, 2016, that the court does in fact have personal jurisdiction over the defendant. It contends that the defendant does not deny actually receiving service, only that service was not left under the door of his apartment. Furthermore, the plaintiff argues that the defendant is a managing member of the LLC which owns the hotel building, and is also appointed as the corporation's agent for service of process. Upon accepting the appointment as agent for service of process, the defendant provided the 338 Asylum address to the Secretary of the State for purposes of effectuating proper service. Therefore, abode service was properly effectuated because it was made at the address provided by the defendant to the Secretary of the State. Moreover, the plaintiff argues that process was left with the defendant's employee, an individual under the defendant's supervision and control. The plaintiff emphasizes that the purpose of abode service is to provide actual notice of the pending action, and that, in this case, service commencing this action was reasonably calculated so as to give actual notice. The plaintiff supports this argument with the submission of a copy of the business inquiry printed from the Secretary of the State's website, reflecting the defendant's residential address as agent for service only as " 338 Asylum Street, Hartford, Connecticut, " without any additional particulars. Additionally, the plaintiff submits Exhibit A, the marshal's sworn affidavit.
The court notes that the plaintiff submitted unauthenticated evidence in support of its position. As a general rule, " [o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . ." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 234 n.10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). " However, where unauthenticated documents are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them." Grasson v. Salati, Superior Court, judicial district of New Haven, Docket No. CV-10-5033540-S (January 1, 2013, Wilson, J.); see also Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). In the present case, the defendant has not made an evidentiary objection to the document, therefore, the court may properly consider the unauthenticated evidence submitted by the plaintiff.
On February 27, 2017, the defendant filed a reply memorandum in further support of his motion to dismiss arguing that supplemental service upon a resident individual is not authorized by statute, and that the sole issue in this case remains whether valid service was made. The defendant also observes that the plaintiff does not assert the doctrine of equitable estoppel; nor does the record support the contention that the defendant engaged in misleading conduct calculated to evade service.
At oral argument on the motion to dismiss, held on January 30, 2017, the court scheduled an evidentiary hearing to be held on February 21, 2017, to afford the plaintiff the opportunity to present evidence on any claimed disputed issue of fact. In a caseflow request filed on February 21, 2017 (#109) and granted by the court (#109.86), the parties stipulated that an affidavit of the marshal, dated February 14, 2017 (#108), be accepted by the court in lieu of live testimony. The parties further stipulated that paragraph 5 of the marshal's affidavit be stricken as hearsay.
" [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 motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." Practice Book § 10-30. " [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.) Matthews v. SBA, Inc ., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014).
" [A] defendant who contests the facts stated in the return bears the initial burden of disproving personal jurisdiction." (Emphasis omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 341, 951 A.2d 632 (2008). However, " [w]hen a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction." (Internal quotation marks omitted.) Id., 341.
As noted, the plaintiff declined the court's offer to hold an evidentiary hearing.
" 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." General Statutes § 52-57(a). " The chief purpose of this requirement is to insure actual notice to the defendant that the action is pending." Clover v. Urban, 108 Conn. 13, 16, 142 A. 389 (1928).
Valid abode service must be " in such a place and in such a manner that it is reasonably probable the defendant will receive the notice of the action against him." Pozzi v. Harney, 24 Conn.Supp. 488, 491, 194 A.2d 714 (1963). " The door of the apartment of each tenant is his outer door." Cugno v. Kaelin, 138 Conn. 341, 343, 84 A.2d 576 (1951). " To accomplish the purpose of the statute, service should [be] made at the apartment occupied by [the party to be served]." Pozzi v. Harney, supra, 24 Conn.Supp. 491. " [W]here the complaint is subject to a number of outside influences over which the party to be served has no control, [it] is generally not [considered] sufficient to constitute service yet where the complaint is left inside the confines of the dwelling by slipping it beneath the door the service has been held permissible." Id. See also United States Guarantee Co. v. Giarelli, 14 Conn.Supp. 400, 401 (1947) (concluding service improper where marshal attempted to effect abode service upon defendant who rented a hotel room by serving hotel clerk at front desk).
The term " abode" remains undefined by statute and case law, however courts have noted that " whether the term 'abode' connotes one's dwelling or more broadly one's property, we know that service must be effectuated in a way reasonably calculated to provide actual notice." (Citations omitted; internal quotation marks omitted.) Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 857, 911 A.2d 1149 (2006), appeal dismissed, 282 Conn. 901, 918 A.2d 888 (2007). While " abode service" may be construed broadly in the context of single-family residences, Connecticut's Appellate Court has distinguished this rationale from earlier precedent holding that process left in common areas of multifamily dwellings is insufficient. Id., 861 n.3. The court reasoned that the " rationale for the holdings in those cases stemmed from a desire to ensure that the proper party is served when process is deposited in a place commonly used by several people. When presented with a single-family residence . . . these historical concerns regarding the number of people who travel in common areas do not exist." Id. Within the context of multifamily dwellings, however, locations that are within the defendant's exclusive possession and control, such as a hallway or stairwell, will be construed as part of the defendant's abode for purposes of effecting abode service upon that defendant. (Emphasis added.) See id., 859.
In the present case, the marshal's return of service attests that she made service upon the defendant " by leaving a verified true and attested copy of the Writ, Summons, Complaint, and Statement of Amount in Demand at the defendant's usual place of abode, 338 Asylum Street . . ." See Return of Service, dated August 29, 2016 (#110.30). The return of service also indicates that after leaving service at the defendant's usual place of abode, the marshal effectuated supplemental service by paying the required fee of $50.00 to the Secretary of the State to accept service on behalf of the defendant. The marshal then attempted a different method of supplemental service by mailing a copy of the documents certified mail, return receipt requested, addressed to the defendant at 338 Asylum. See Return of Service, dated August 29, 2016 (#110.30).
The defendant's affidavit states that 338 Asylum is a twelve-story hotel owned by Bond Development, LLC, of which the defendant is a managing member; that floors three through ten are hotel room floors, and that the defendant has resided in one of the hotel rooms for the last two years. Furthermore, the defendant did not authorize anyone to accept service on his behalf, and that the marshal neither performed in-hand service nor made service underneath the door to his apartment. The Pendergrass affidavit indicates that he told the marshal that he was not authorized to accept service for the defendant, and that he could not assist her. Thereafter, the marshal left the documents to be served on the front desk then turned and left the hotel. The plaintiff offers a copy of the business inquiry obtained from the Secretary of the State's website identifying the defendant as agent of service for LMN HIX, LLC, and listing his address for service as " 338 Asylum Street, Hartford, CT 06103."
In a sworn affidavit dated February 14, 2015, the marshal states that she verified the defendant's address with the Secretary of the State's records prior to attempting service, and that the only known address for the defendant was " 338 Asylum Street." The marshal later confirmed this by conducting a " skiptrace investigation." Upon arriving at 338 Asylum, the marshal identified herself and asked the front desk clerk to provide her with the room number for the defendant. The clerk refused. The marshal then requested that the clerk contact the defendant by telephone. The clerk indicated that he would make an attempt to do so. After waiting for twenty minutes, the marshal left the documents at the front desk. Thereafter, the marshal attempted to effect supplemental service upon the defendant. On or about August 30, 2016, the mailing sent to the defendant by certified mail, return receipt requested, was returned to the marshal marked, " refused by recipient."
The marshal's affidavit was later accepted by the court, Peck, J., in lieu of testimony based on the stipulation of the parties (#109.86). The parties further agreed to strike paragraph 5 of the affidavit as hearsay.
Because proper abode service is a question of fact, our appellate courts have made exceptions to the general rule when a defendant is attempting to evade service of process. Fine Homebuilders, Inc. v. Perrone, supra, 98 Conn.App. 867-68. See also Plonski v. Halloran, 36 Conn.Supp. 335, 336, 420 A.2d 117 (1980), citing Cugno v. Kaelin, supra, 138 Conn. 343 (" determination of one's usual place of abode is a question of fact and the court may consider various circumstances"). The fact that a defendant, served abode, receives actual notice of the pending litigation, " weighs heavily in favor of the plaintiff; the defendant cannot be heard to say that he was prejudiced in any manner whatsoever. As an exception to the general rule requiring strict construction of statutes in derogation of the common law, it has been held that provisions for substituted service should be liberally construed in those cases in which the defendant received actual notice." Plonski v. Halloran, supra, 36 Conn.Supp. 337.
The cases construing this exception, however, have applied the rule within the context of abode service effected at a single-family dwelling. The importance of this distinction is underscored by the court's analysis in Pinto v. King, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV-16-6054517-S (January 5, 2017, Krumeich, J.) (63 Conn.L.Rptr. 662, ), wherein the court considered whether abode service upon the defendant who had continuously owned and resided at the same parcel of property containing two structures, a house and a barn behind the house, was sufficient. The defendant argued that service was insufficient based upon the fact that the marshal had served process at the house, instead of the barn in the back, where the defendant actually resides. Id. Construing the term " abode" broadly, the court concluded that abode service upon the defendant was sufficient, reasoning " it is significant that the doorway where the process was left was entirely within defendant's exclusive possession and control . . . process left in the doorway . . . was reasonably likely to be received by defendant, and was received by her, so she had actual knowledge of the suit." (Citation omitted; emphasis added.) Id., 664. The court clarifies, however, that critical to its analysis was the fact that " no one other than defendant had possessory and controlling access to the doorway where the process was left"; id., n.7; had the defendant rented the house to a third-party tenant, the analysis would have resulted in a different conclusion because the element of exclusive possession would have been destroyed. Id.
In the present case, the court notes that § 52-57(a) does not authorize supplemental service upon resident individuals and that the defendant specifically provided the generic 338 Asylum address to the Secretary of the State upon accepting his appointment as agent for service on behalf of LMN HIX, LLC, pursuant to General Statutes § 34-104(b). Additionally, at the time that process was served in this action, the defendant had not resigned from his appointment as statutory agent for service pursuant to General Statutes § 34-104(c). The defendant's failure to disclose his particular address to the Secretary of the State, as required by statute, is inherently misleading as the purpose for providing this information is in itself an attestation to where legal documents commencing suit may be served. Implied in the filing of the form, is the understanding that the agent of service agrees, pursuant to statute, to accept service of said legal documents at that specific address.
General Statutes § 34-104(b) provides in relevant part: " A limited liability company's statutory agent for service shall be appointed by filing with the Secretary of the State a written appointment . . . setting forth: (1) The name of the limited liability company; (2) the name of the statutory agent for service; and (3) if the statutory agent is a natural person, the business and residence addresses thereof . . . In each case, the address shall include the street and number or other particular designation . Each written appointment shall also be signed by the statutory agent for service therein appointed." (Emphasis added.)
This is not a case where service was left at a former address where the defendant no longer resides. The defendant does in fact reside at this property, but in an apartment whose location has been purposefully omitted, as demonstrated by the marshal's attestation that the only known address retrieved by the skiptrace investigation was the generic 338 Asylum address, with no additional designation.
The policy underlying abode service is to ensure actual notice to the defendant that the action is pending. Actual notice, however, is not the conclusive factor when determining whether service is sufficient. Barker v. Rosati, Superior Court, judicial district of New London, Docket No. CV-08-5008708-S (February 20, 2009, Peck J.) (47 Conn.L.Rptr. 285, 286, ) (concluding defendant's appearance in civil action does not cure any defects in service of process or constitute waiver of the defendant's right to contest the court's exercise of jurisdiction); accord Elbardissy v. Beta Theta Pi, Superior Court of Connecticut, judicial district of Middlesex, Docket No. CV-15-6013197-S (January 12, 2016, Vitale, J.) (61 Conn.L.Rptr. 667, 672-73, ) (" where a statute governing service of process is unambiguous or an appellate court has already construed the meaning of that statute, a trial court is not at liberty to consider the defendant's receipt of actual notice in deciding whether the service complied with statutory requirements").
Here, the defendant is the managing member of the corporation owning the hotel, where he resides and which he manages. The front desk clerk is the defendant's employee. It is within this context that the court evaluates the concern regarding " outside influences over which the defendant has no control, " and which might prevent the defendant from receiving actual notice that the action is pending. By all appearances, the defendant has control over the influences which may potentially come into play within the hotel. The critical question, however, is whether the defendant's possession of the hotel is exclusive. Given that the hotel and front desk area are places commonly accessed by several individuals other than the defendant, the court cannot conclude that his possession is exclusive. See Fine Homebuilders, Inc. v. Perrone, supra, 98 Conn.App. 861 n.3; Pinto v. King, 63 Conn.L.Rptr. at 664 n.7.
By statute, the plaintiff is required to serve a defendant within the state either in-hand, or at his usual place of abode. See § 52-57(a). Because such service could not be made at the defendant's apartment unit within the hotel, the plaintiff was required to serve the defendant in-hand. Therefore, the abode service attempted by the plaintiff upon the defendant was insufficient, as the marshal failed to serve process by either of the methods provided by statute. Accordingly, the court lacks jurisdiction over the person of the defendant.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss for lack of personal jurisdiction is hereby granted.