Opinion
No. CV 05-4011551 S
October 5, 2005
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
The defendant has moved to dismiss this matter for failure to comply with the service of process requirements set forth in § 52-57 which says that . . . "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 (her) usual place of abode." The process was given to the defendant's mother who resided at 9 Eldridge Street in New Haven; the defendant's claim is that at the time of service of process that address was not her usual place of abode. After a hearing the court found the following:
1. Marshall Nardini did his best to ascertain the usual place of abode of the defendant Meghan Thompson and made a reasonable conclusion that her mother's address at 9 Elridge Street was the defendant's true usual place of abode as that term is used in § 52-57.
2. In fact Meghan Thompson did not live at Elridge Street at the time of service and for a considerable time prior thereto lived on Nobel Street in West Haven.
3. The court found Nardini and Meghan's mother Laura Thompson to be transparently honest witnesses. The court concludes Mrs. Thompson had no intention to mislead Marshall Nardini. She is a lay person naturally unfamiliar with the requirements of service in our state and would have no motive or plan to use those technical requirements to create the possibility of a viable motion to dismiss.
4. No matter what the mother's actual words to Nardini were or what her intentions were the court finds that the defendant daughter had nothing to do or no involvement with what the mother said or did.
5. The defendant did in fact receive actual notice of the suit and of the papers left with the mother when the latter called her and told the defendant of the suit within a day or two of Nardini's conversation with the mother.
When the issue of proper abode service under § 52-57 has arisen, it is true that several trial courts have held that actual notice weighs heavily in favor of finding jurisdiction, Plonski v. Halloran, 36 Conn.Sup. 335 (1980), Tsukroff v. Fordham, 18 Conn. L. Rptr. 91, 1996 WL 727315 Ct.Sup. (1996); Bransfield v. Relihan, CV 90030101S, 2 Conn. L. Rptr. 433. In all of those cases the trial court had real question as to whether in fact the place where the process was left was in fact the defendant's usual place of abode. Here the court has found the defendant's usual place of abode was not where the process was left. But even these cases do not say actual notice somehow overrides the requirements of § 52-57. They say actual notice "weighs heavily" in favor of finding jurisdiction. The court does not understand how a "weighs heavily" test is to be applied. If actual notice is the touchstone for the viability of service of process, then what, if anything, do the statute's requirements mean in the face of this judicial amendment to its language and what does "actual notice" mean? If the test is an inquiry into whether the marshal made a reasonable and thorough investigation into the defendant's place of abode, then are we to have litigation about what is reasonable and thorough?
The legislature set forth a simple test — in hand service or service at the usual place of abode. There are ameliorative statutes such as § 52-592 which can be resorted to after a dismissal and which should be liberally interpreted in a situation such as this. This is preferable to, in the first instance, trying to give a meaning to the language of § 52-57 which apparently the legislature did not intend. In fact the very purpose of an ameliorative statute like § 52-592 is to avoid the rigors of § 52-57. Also see Bove v. Bove, 77 Conn.App. 355 (2003), which is not directly on point but suggests that "actual notice" will not suffice for the requirements of abode service if the latter is not properly made.
The fact that "actual notice" is not the linchpin for interpreting § 52-57 is further underlined by the fact that if proper abode service is made it is no defense against the action to say that no "actual notice" was received because for example, the defendant was out of state, Hurlbut v. Thomas, 55 Conn. 181, 182 (1887). There as here, the party prejudiced could resort to ameliorative remedies. Id.
One other matter should be discussed. The plaintiff states that the defendant Meghan Thompson should be equitably estopped from asserting a claim of insufficient process, citing Wadia Enterprises Inc. v. Hirschfield, 224 Conn. 240 (1992), O'Sullivan v. Bergently, 214 Conn. 641 (1990). These cases say that "the party against whom estoppel is claimed must do or say something that is calculated or intended to induce another party to believe that certain facts exist and to act on that belief, and the other party must change its position in reliance on those facts, thereby incurring some injury." 224 Conn. 252, n. 7, 214 Conn. 648.
The only relevant "party" for the purpose of deciding the applicability of this doctrine is the defendant Meghan Thompson, she is the party asserting insufficient service. Her mother is the person who made statements to the marshal and accepted process all of which lead him to believe the defendant lived at 9 Elridge Street, the mother's address. An ancient case said:
The key to (the application of the doctrine) is not infrequently to be found in the rule that in matters of trust in confidence, when one of two innocent persons must suffer, in consequence of the, acts of one of them, the loss must generally be borne by him (her) who thus occasioned it. Canfield Trustee v. Gregory, 66 Conn. 9, 17 (1895).
Here no words or actions of the defendant caused harm to the defendant.
As the Canfield case also said, the purpose of the doctrine is "to show what equity and good conscience require, under the particular circumstances of the case." Id.; Lebowitz v. McPike, 157 Conn. 235, 243 (1968). And as noted in 28 Am.Jur.2d "Estoppel and Waiver," § 31, page 460: "From a practical standpoint, the effect of an equitable estoppel . . . is to prevent the assertion of what would otherwise be an unequivocal right or to preclude what could otherwise be a good defense." It cannot be fair in this case to require the defendant to give up her defense of insufficient process because of the words or actions of her well-meaning mother which the defendant was not responsible for and did not even have a way of knowing about at the time they were made.
The motion to dismiss is granted.
Corradino, J.