Opinion
AANCV166021440S
09-07-2017
Advanced Linen Group, Inc. v. The Bear & Grill Restaurant, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Theodore R. Tyma, J.
The defendant, The Bear & Grill Restaurant, LLC, moves to dismiss the present action on the ground that the court lacks personal jurisdiction over it. More particularly, the defendant contends that there is a lack of personal jurisdiction because the state marshal served the defendant's co-member and agent for service, Patsy Santangeli, by making abode service at an address where he no longer resided. The defendant claims an insufficient service of process.
In this action, the plaintiff applies to confirm an arbitration award. The arbitrator awarded the plaintiff $45, 406 plus attorneys fees and costs. The state marshal's return of service states that he served the defendant " at the usual place of abode of Patsy Santangeli, Co-Member and Agent for Service, at 60 Banks Road, Easton, Connecticut, for service on the Bear and Grill Restaurant, LLC, the within named defendant."
On October 24, 2016, the court (Hiller, J.) rendered judgment confirming the arbitration award. The defendant had not appeared in the action at the time that judgment was rendered. The clerk's office issued a financial execution on November 25, 2016, which was served by a state marshal on the defendant's financial institution. The execution was partially satisfied by People's United Bank's payment to the plaintiff of the amount of $38, 472.
Counsel filed an appearance in the action on January 9, 2017, and filed the present motion to dismiss on February 8, 2017. The court held an evidentiary hearing on April 17, 2017, where both State Marshal Copertino and Santangeli testified. Additionally, the court received evidence of records from the Secretary of the State's C.O. N.C. O.R.D. system and commercial recording division that were filed with the state by the defendant.
The following facts are undisputed and are relevant to the resolution of the motion. The defendant is a domestic limited liability company. Santangeli is named in the C.O. N.C. O.R.D. form as a co-member of the defendant, having a residence address at 60 Banks Road, Easton, Connecticut, and as its agent for service, having a residence address at 85 Banks Road in Easton. The commercial recording division form similarly names Santangeli as both co-member of the defendant and its agent, but lists the residence address of 60 Banks Road in Easton for him in both capacities.
Marshal Copertino testified that he served Santangeli, as a co-member and agent for service of the defendant, at his usual place of abode at 60 Banks Road. Notwithstanding the Secretary of the State's records reflecting two different residential addresses for Santangeli, Copertino testified that the records " clearly" show that 60 Banks Road was his usual place of abode, and that he had " to assume that the address was valid." He also testified that nobody was at the residence when he served the process at that address.
Santangeli testified that he first learned of the present action when the execution was served on the defendant's banking institution and funds were deducted from its account. He stated that he has not resided at 60 Banks Road for approximately twenty years, and has lived at 85 Banks Road for approximately the past six years. Prior thereto, Santangeli resided for a few years at 127 Sterling Road in Trumbull, Connecticut. Santangeli's mother and a few close relatives resided at 60 Banks Road at the time of service of the application to confirm the arbitration award. His father also lived at that address, but passed away about five years ago. Santangeli testified that he never was served with process at 60 Banks Road " [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). " Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Footnote omitted; internal quotation marks omitted.) Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007); see also Practice Book § 10-30(a)(4) (a motion to dismiss properly asserts a claim of insufficiency of service of process). " [A]n action commenced by . . . improper service must be dismissed." (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). " 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 the 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), cert. granted on other grounds, 282 Conn. 901, 918 A.2d 888 (2007). " [B]ecause an officer's return of abode service is prima facie evidence of the facts stated therein . . . 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, 109 Conn.App. 332, 341, 951 A.2d 632 (2008).
The defendant is a Connecticut limited liability company. An action against a limited liability company may be served upon the company's agent for service. General Statutes § 34-105(a), which was the governing statute at the time of the challenged service, provides as follows: " Any process, notice or demand in connection with any action or proceeding required or permitted by law to be served upon a limited liability company which is subject to the provisions of section 34-104, may be served upon the limited liability company's statutory agent for service by any proper officer or other person lawfully empowered to make service by leaving a true and attested copy of the process, notice or demand with such agent or, in the case of an agent who is a natural person, by leaving it at such agent's usual place of abode in this state."
The legislature repealed this statutory section effective July 1, 2017. In this case, however, the service of process occurred before the repeal date. The replacement statute is codified in General Statutes § 34-243r.
" [T]he Superior 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 personal jurisdiction . . . [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 . . . 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." (Citations omitted; internal quotation marks omitted.) Jimenez v. DeRosa, supra, 109 Conn.App. at 338. " [T]he usual place of abode presumptively is the defendant's home at the time when service is made." (Internal quotation marks omitted.) Id., citing Grant v. Dalliber, 11 Conn. 234, 237-38 (1836).
The Jiminez case also provides guidance in deciding the present motion. In that personal injury case, a default judgment for failure to appear was rendered against the defendant. Id., 334. More than two years after the judgment was rendered, the defendant moved to set aside the judgment and dismiss the action claiming a lack of personal jurisdiction supporting the judgment. Id., 334-35. More particularly, the defendant challenged the service of process because the marshal's return disclosed that the defendant was served at his purported usual place of abode in Northford, Connecticut, but he had not lived at that address for some sixteen months prior to the service date. Id., 335.
The trial court (Skolnick, J.) found the jurisdictional issues for the defendant, and granted the defendant's motions to set aside the judgment and dismiss the action. Id., 333-34. The trial court based its decision on its finding that the defendant no longer resided at the Northford address at the time of the purported abode service. Id., 339. The plaintiffs appealed, claiming in part that the default judgment was rendered without the court having personal jurisdiction over the defendant. Id., 337.
Our Appellate Court affirmed the trial court's dismissal of the complaint due to a lack of personal jurisdiction over the defendant. Id., 346. The court disagreed with the plaintiff's argument " that the defendant cannot rely on his change of residence because he failed to update his address on government records . . ." Id., 339. In rejecting that claim, the court referred to the case of Hibner v. Bruening, 78 Conn.App. 456, 463, 828 A.2d 150 (2003). Id. " In that case, we held that for purposes of effective abode service, an address on file with a government agency, in and of itself, could not establish a party's usual place of abode." Id.
In Hibner, the plaintiffs appealed from a judgment of the trial court dismissing their personal injury action against the defendants. Hibner v. Bruening, supra, 78 Conn.App. 457. The issue was " whether [General Statutes § 52-63(b), which permits constructive service on the commissioner [of motor vehicles], requires that it be absolutely 'impossible' for the marshal to serve the process at the address listed on file with the commissioner." Id.
Although the issue in Hibner is distinguishable from the present case, the service issue in that case is instructive. The marshal in Hibner unsuccessfully attempted to serve the defendants on various occasions at a residential address. Id., 462. Ultimately, the marshal served the commissioner of motor vehicles as provided by statute. Id. In dicta, the court stated that " [w]hen effecting abode service, a marshal or constable cannot guess that a particular dwelling is a defendant's usual place of abode because there must be an attestation of that fact in his return. The fact that the [residential] address was the last address on file with the commissioner, in and of itself, could not establish that it was the defendants' usual place of abode. Despite attempts to confirm that address as the defendants' usual place of abode, [the state marshal] was unsuccessful." Id., 465.
Here, it is uncontroverted that the defendant's co-member and agent for service, Santangeli, did not reside at 60 Banks Road at the time of the challenged service. Rather, he resided at 85 Banks Road. The evidence presented shows that the marshal relied solely on the information contained in the Secretary of the State's records in making abode service on Santangeli, and that he made the express assumption that the addresses contained in the records were accurate, despite the fact that two different residential addresses for Santangeli were listed in those records. In view of that conflicting information, there is no evidence that the marshal made any other reasonable efforts to ascertain whether 60 Banks Road was Santangeli's usual place of abode. Nevertheless, the marshal stated under oath in his return of service that such address was Santangeli's usual place of abode, when, in fact, it was not. The marshal could have properly served Santangeli if he exercised reasonable diligence to verify that Santangeli's usual place of abode was 85 Banks Road, such as inquiring of the multiple residents of 60 Banks Road.
The defendant has met its burden to establish that the court lacks personal jurisdiction over it. Therefore, the defendant's motion to dismiss is granted.