Opinion
No. CV 03 0828393 S
January 24, 2005
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#111)
This matter appeared before the court on October 25, 2004, for an evidentiary hearing concerning the plaintiffs' motion to dismiss the apportionment complaint filed by the defendants, against Mehmed Belarevic, for lack of subject matter and personal jurisdiction, due to insufficiency of service of process and/or insufficiency of process. The defendants assert that the plaintiffs do not have standing to challenge the service of' the apportionment complaint upon Belarevic and that the service of the apportionment complaint was properly made.
I BACKGROUND
The plaintiff, Dzenana Uvalic, a minor, brings this action through her father, the co-plaintiff, Ramiz Uvalic, against the defendants, Jenifer Driscoll and Raymond Driscoll, for damages arising from an accident in which the defendants' vehicle allegedly struck Dzenana Uvalic.
The plaintiffs allege that on October 19, 2001, Jenifer Driscoll drove through a red light while operating a car owned by her father, Raymond Driscoll, and struck Dzenana Uvalic, who was in a crosswalk with other children and an adult. The plaintiffs claim that Jenifer Driscoll drove negligently and in violation of state statutes.
The plaintiffs served the defendants with a two-count complaint on September 9, 2003, and filed their amended complaint on April 5, 2004. The first count, brought by Dzenana Uvalic, seeks damages for personal injuries, while the second count, brought by Ramiz Uvalic, seeks compensation for medical expenditures and future costs. On February 2, 2004, the defendants purportedly served Mehmed Belarevic with an apportionment complaint, alleging that Belarevic, an adult escorting Dzenana across the street at the time of the accident, was negligent, and seeking a determination of his proportionate responsibility for any of Dzenana's damages.
On May 20, 2004, the defendants filed a motion for default against the apportionment defendant Belarevic for failure to appear, which was granted by the clerk on June 2, 2004 (#114.10). The plaintiffs filed a motion to dismiss the apportionment complaint on May 24, 2004, on the grounds that the apportionment complaint was not properly served, has an unlawful return date, and was not properly filed with the court. The defendants then filed objections in opposition to the plaintiffs' motion to dismiss on June 7, 2004, and June 22, 2004, arguing that the plaintiff lacks standing to challenge the apportionment complaint. Additional references to the facts are set forth below.
II DISCUSSION A Standing
The defendants argue that the plaintiffs lack standing to challenge the apportionnent complaint. They contend that the only proper person to bring such a challenge is the apportionment defendant himself. "Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 154, 851 A.2d 1113 (2004).
"Pursuant to section 52-102b(a), `[t]he person upon the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes . . .' Although the apportionment complaint is filed by a defendant against a non-defendant, who once served becomes a party, the statute treats such pleadings as the equivalent in all respects to the writ, summons and complaint of the original action . . . Based on the language of statute as well as a common sense understanding of the apportionment practice, the court concludes that a plaintiff has the right to raise any procedural or substantive motions against an apportionment complaint." (Internal quotation marks omitted.) Eskin v. Castiglia, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 96 003 34760 S (December 28, 1998, Nadeau, J.) ( 23 Conn. L. Rptr. 677), affirmed on other grounds, 253 Conn. 516, 753 A.2d 927 (2000).
"[P]laintiffs have a clear and direct interest in the court's jurisdiction over an apportionment defendant. The existence of an apportionment defendant has a potentially significant impact on the plaintiff's right and ability to satisfy a judgment." Bialik v. The Village at Brookfield Commons, Superior Court, judicial district of Danbury, Docket No. CV 02 0346730 (August 26, 2003, Upson, J.) ( 35 Conn. L. Rptr. 324). See also Pashley v. Hairston, Superior Court, judicial district of New Haven, Docket No. CV 384639 (February 14, 1997, Fracasse, J.) ( 19 Conn. L. Rptr. 61) (the plaintiff has an interest in the court's jurisdiction over apportionment complaints, because that issue affects whether the plaintiff may assert claims against the apportionment defendant).
"It is evident from existing case law that a plaintiff has standing to strike an apportionment complaint. In Tito v. Burghoff, Superior Court, judicial district of Litchfield, Docket No. 070643 (May 27, 1997, Sheldon, J.) ( 19 Conn. L. Rptr. 561), the court held that in order to prove aggrievement, a plaintiff must have a specific, personal and legal interest in a matter that may substantially affect her ability to recover damages. Id., 562 . . . [A]pportioning liability to an apportionment defendant would reduce the size of the recovery, if any, against the main defendants." Bowen v. Stonegate Condominium Assn., Superior Court, judicial district of New Haven, Docket No. CV 98 0416453 (January 5, 2001, Jones, J.) ( 28 Conn. L. Rptr. 578). The plaintiffs in the present case have a clear interest in the apportionment issue, because an allocation of liability would affect the extent of their recourse against the Driscolls.
Following the reasoning of the several decisions cited above, the Uvalics should be afforded the same standing as the apportionment defendant and must be allowed to test the sufficiency of service on him. In the present case, the Driscolls' apportionment complaint is a pleading equal to the complaint in the original action, and, therefore, a challenge by the Uvalics is proper.
B Service Of The Apportionment Complaint
The issue before the court concerning the service of the apportionment complaint relates to personal jurisdiction, not to the court's jurisdiction over the subject matter. "[J]urisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court . . . 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 . . . The Superior Court lacks subject matter jurisdiction only if it has no competence to entertain the action before it." (Citation omitted; emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).
"When 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." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54, 459 A.2d 503 (1983). For the purposes of this motion, the Driscolls, as the apportionment plaintiffs, bear the burden of proof.
With their motion, the plaintiffs presented the affidavit of Deborah Perakos. Therein, she stated that the address where the defendants claim they made abode service of the apportionment complaint on Belarevic, 305 Washington Street, Hartford, Connecticut, is an apartment complex. The return of service of the apportionment complaint, dated February 2, 2004, did not list an apartment number or letter. See plaintiffs' Exhibit 2 (return dated February 2, 2004, signed by Scott M. Kraimer, a state marshal, the original of which is present in the court's file). In an "amended return service," dated June 3, 2004, which was filed on June 22, 2004, after the filing of the instant motion to dismiss, Kraimer stated that service had been made on Belarevic at "305 Washington Street, Apt. 524, Hartford." See plaintiffs' Exhibit 3.
General Statute § 52-54 provides, concerning abode service: "[t]he service of a writ of summons shall be made by the officer . . . by leaving an attested copy thereof with [the defendant] or at his usual place of abode. When service is made by leaving an attested copy at the defendant's usual place of abode, the officer making service shall note in his return the address at which such attested copy was left." "The chief purpose of this requirement is to ensure actual notice to the defendant that the action is pending." Clover v. Urban, 108 Conn. 13, 16, 142 A. 389 (1928). There is no substitute for in hand or abode service where jurisdiction over the person of a resident individual is sought in this context. See White-Bowman Plumbing Heating, Inc. v. Biafore, 182 Conn. 14, 16-17, 437 A.2d 833 (1980).
Where a party's abode is an apartment complex, service must be made at the party's apartment, not just at the apartment house itself. See Clover v. Urban, supra, 108 Conn. 16-17 ("in legal view, the apartments in a house of this character are as separate and distinct as though under separate roofs"). "In Rodney v. Rodney, 29 Conn.Sup. 92, 272 A.2d 315 (1970), the court held that where the address in the marshal's return did not contain the defendant's apartment number, the process was left at the apartment complex and never received by the party intended to be served, the service was defective. In contrast, the Connecticut Supreme Court has held that where process was left at the correct apartment and received by the party intended to be served, the lack of an apartment number is only a circumstantial defect and service thereof is valid. Hartford National Bank Trust Co. v. Tucker, 178 Conn. 472, 479, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d 319 (1980)." Phoenix Limousine Service, Inc. v. Estate of Hilchen, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV00 0378706S (June 12, 2001, Skolnick, J.).
In this case, there is no evidence that process actually was received by Belarevic. Rather, the defendants argue that the marshal's alleged abode service is sufficient to establish that the court has personal jurisdiction over him. At the evidentiary hearing, the court heard the testimony of Kraimer and Perakos.
"Although the [marshal's] return is prima facie evidence of the facts stated therein, it may be contradicted and facts may be introduced to show otherwise." (Internal quotation marks omitted.) Tax Collector of New Haven v. Stettinger, 79 Conn.App. 823, 825, 832 A.2d 75 (2003). "In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence." (Citation omitted; internal quotation marks omitted.) Cadle Co. v. D'Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004).
The court has weighed the testimony and assessed the credibility of the witnesses. On balance, the court finds that the Driscolls, the apportionment plaintiffs, have not sustained their burden of proof. The Uvalics presented photographic evidence concerning the apartment complex located at 305 Washington Street, in Hartford. See plaintiffs' Exhibits Nos. 6-8. The building consists of three floors. Perakos credibly testified that the entrance hallway of that location contains six mailboxes, each of which has an apartment number, none of which is apartment number 524, contrary to Kraimer's contention in his amended return. Exhibit No. 8 shows those numbers to be 101, 102, 203, 204, 305, and 306. Although the photographs were taken on October 22, 2004, Perakos credibly stated that the hallway remained as it was when she visited the building on May 20, 2004, at the time her affidavit was prepared.
Kraimer's testimony did not credibly establish that he made service on Belarevic. His recollection was vague. His testimony was insufficient to establish that there actually was an apartment number 524 at 305 Washington Street at the time he served the apportionment complaint. The fact that he did not list an apartment number in his original return also undermines the presentation made by the Driscolls about their service of process.
Having reviewed the facts and circumstances, the court finds, by a preponderance of the evidence, that service was not made upon Belarevic at his usual place of abode. In the absence thereof, the court does not have personal jurisdiction as to him.
The plaintiffs also argue that the return day for the apportionment complaint, February 24, 2003, was a Monday and preceded the alleged date of service, February 2, 2004, by almost a year. In view of the court's finding as to the absence of personal jurisdiction, the court need not address these issues.
Our Supreme Court recently has held, concerning the time in which to serve an apportionment complaint, that "on the basis of the mandatory language employed by the legislature and our conclusion that § 52-102b(a) is substantive, we further conclude that the 120 day time limitation contained therein is mandatory:" Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 26, 848 A.2d 418 (2004). The return day in this action was October 7, 2003. Service on Belarevic did not occur within 120 days of that date.
In pertinent part, § 52-102b(a) provides, "Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint."
CONCLUSION
For the foregoing reasons, the motion to dismiss the apportionment complaint is granted. In addition, since valid service upon Belarevic did not occur, the default entered against him by the clerk (#114.10) is vacated. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT