Opinion
No. CV98 0265016-S
August 19, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS #106
FACTS
On October 19, 1998 the plaintiff, CadleRock Joint Venture II, L.P. (CadleRock) filed suit against five defendants for nonpayment of a commercial note. The defendants are Melina Enterprises, the original maker of the note, and four guarantors, Marie Milazzo, Barbara Milazzo, Wageeh Agleh and Susan Agleh. Pursuant to the terms of the note and the guarantees, the defendants acknowledged that the note was part of a commercial transaction. The defendants also waived all rights to notice and a hearing prior to any attempt by the lender to obtain a prejudgment attachment. One of the guarantor defendants, Wageeh Agleh, has moved to dismiss the complaint against him for lack of personal jurisdiction based on insufficient service of process. The marshal's return states that abode service was made on this defendant on October 6, 1998 at 53 Cambridge Drive, Unit A, Newington, Connecticut. Agleh argues that this address was not his usual place of abode on the date of service.
The note was originally made in favor of Connecticut Savings Bank. CadleRock is now the owner of the note.
Although both Wageeh Agleh and Susan Agleh, former spouses, are both defendants, only Wageeh Agleh is involved in the current motion. All references to the defendant and to Agleh will, hereafter, be meant to refer to Wageeh Agleh only.
The four guarantor defendants were defaulted on December 16, 1998 for failure to appear. The defaults were set aside after an appearance was filed on February 11, 1999 by attorney Thomas Benneche. See Practice Book § 17-20(c). The appearance contained in the clerk's file shows that it was on behalf of the other three guarantors only and not on behalf of Wageeh Agleh. Copies of notices submitted by the plaintiff, however, show that the clerk's office incorrectly notified the parties that the appearance by the attorney was also on behalf of Wageeh Agleh.
Thereafter, on December 18, 2002, the plaintiff attached property owned by Agleh located at 582 Skiff Street, North Haven, Connecticut pursuant to General Statutes § 52-278f, which allows prejudgment attachments without notice and hearing in actions involving commercial transactions wherein a defendant has waived his rights to notice and hearing. Notice of the attachment was left by the marshal at 582 Skiff Street, which was stated to then be the usual place of abode of Agleh. The certification of service with the attachment reveals that the plaintiff also sent a copy of the attachment to the attorney who was incorrectly noted by the clerk as filing an appearance for the defendant. See General Statutes § 52-278m.
General Statutes § 52-278f provides:
In an action upon a commercial transaction, as defined in section 52-278a, wherein the defendant has waived his right to a notice and hearing under sections 52-278a to 52-278g, inclusive, the attorney for the plaintiff shall issue the writ for a prejudgment remedy without securing a court order provided that (1) the complaint shall set forth a copy of the waiver; (2) the plaintiff shall file an affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of facts sufficient to show that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any known defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff; and (3) the plaintiff shall include in the process served on the defendant a notice satisfying the requirements of subsections (b) and (c) of section 52-278e.
General Statutes § 52-278m provides: "Whenever a prejudgment remedy is sought under the provisions of sections 52-278h or 52-278i against a party who has previously filed a general appearance in such action, personal service of any application or order upon such party shall not be required, unless ordered by the court, but any such application or order may be served in the same manner as any motion in such action."
Agleh has now moved to dismiss the complaint based on insufficient service of process, supported by a memorandum of law. He has also filed his affidavit and the affidavit of Marie Scelza, the manager of the rental units, attesting that Agleh did not live at 53 Cambridge Drive, Unit A, Newington, Connecticut, the place of service of the writ, for one year prior to service.
Other counsel has now appeared on behalf of Agleh.
The defendant avers in his affidavit that he now resides in Dubai, United Arab Emirites, although he acknowledges that he still owns the property at 582 Skiff Street, New Haven, Connecticut.
The plaintiff objects to the motion to dismiss. The plaintiff argues that Agleh should be estopped from claiming that he was not represented by attorney Benneche because both the attorney and the court clerk's office led the plaintiff to believe that the attorney represented Agleh. The plaintiff also argues that if the attorney did, in fact, represent Agleh, the motion to dismiss based on insufficient service of process is untimely. See Practice Book §§ 10-30 and 10-32 which require a motion to dismiss for lack of personal jurisdiction to be filed within thirty days of filing an appearance or to be deemed waived. The objection is supported by a memorandum of law and the affidavit of Peter Barta, assistant vice president of CadleRock, attesting to attempts made to verify Agleh's correct address.
The plaintiff has filed an amended objection and memorandum, including the affidavit of Edward Jurkiewicz, the plaintiff's attorney. The memorandum repeats the earlier arguments made but expands on the waiver argument, asserting that the plaintiff's reliance on the clerk's notices and the statements of attorney Benneche, coupled with the failure of the attorney to correct the clerk's error, should act to equitably estop Agleh from claiming that the attorney did not represent him.
The defendant filed a supplemental affidavit and a supplemental memorandum in support of his motion to dismiss. He argues that attorney Benneche did not file an appearance for him and that he never authorized the attorney to do so. Agleh also argues that the actions of the attorney and the court clerk should not be attributed to him to estop him from raising the issue of improper service. The plaintiff also subsequently filed a reply brief, repeating the arguments previously made but also raising additional claims. The plaintiff argues that the defendant may have had more than one usual place of abode. In addition, the defendant consented to the personal jurisdiction of the court in paragraph 22 of the guaranty agreement. Finally, the court would have quasi in rem jurisdiction over the defendant if the court issues an order of notice, which would perfect the attachment previously made on the defendant's property at 582 Skiff Street, North Haven, Connecticut. The plaintiff also requested an evidentiary hearing.
The defendant filed a response to the plaintiff's reply brief asserting that while he may have waived personal service of process in the guarantee agreement, he did not waive all service.
On April 12, 2004, the plaintiff filed an application for order of notice. The plaintiff requests that the court issue an order of notice directing that copies of the attachment, complaint and marshal's return be served on attorney Richard F. Conners, who has now appeared for Agleh and who is now pursuing the pending motion to dismiss on Agleh's behalf. The plaintiff argues that the present residence of Agleh is unknown other than that he may reside in Dubai, United Arab Emirates. The plaintiff further argues that because Agleh is now definitely represented by counsel and his property located at 582 Skiff Street, North Haven, has already been validly attached, he clearly has actual knowledge of the proceedings and issuing the order of notice is appropriate. The plaintiff argues that the court should either grant the order of notice, thereby perfecting quasi in rem jurisdiction over the defendant, or alternatively deny the motion to dismiss on the basis that the prior attachment of the Skiff Street property would ripen into quasi in rem jurisdiction as soon as the order of notice was granted. The court heard oral argument from the parties on April 26, 2004.
On May 14, 2004 the plaintiff filed a reclaim slip, claiming the motion for short calendar.
It can be assumed that the plaintiff did not seek an order of notice at the time of the attachment because the plaintiff, in reliance on the incorrect notice issued by the clerk's office, thought that the defendant was represented by counsel and that an order of notice was unnecessary. Notice of the attachment was sent to the attorney thought to be representing Agleh.
General Statutes § 52-278f provides, in part, that "[i]n an action upon a commercial transaction, . . . wherein the defendant has waived his right to a notice and hearing . . . the attorney for the plaintiff shall issue the writ for a prejudgment remedy without securing a court order . . ." In this matter, the terms of the note and the guarantee acknowledge that this was a commercial transaction. The defendant also waived his rights to notice and hearing prior to issuing a prejudgment attachment. On December 18, 2002, the defendant's property was attached pursuant to the statute. The defendant has not contested the validity of the attachment.
General Statutes § 52-284 provides, in part, that "[w]hen the defendant is not a resident or inhabitant of this state and has estate within the same which has been attached, a copy of the process and complaint, with a return describing the estate attached, shall be left by the officer with the agent or attorney of the defendant in this state if known; and when land is attached, a like copy shall be left in the office of the town clerk of the town where the land lies. In addition, the court to which such action is returnable, or any judge, clerk or assistant clerk thereof shall make such order of notice to the defendant as is deemed reasonable to apprize him of the institution or pendency of such complaint and attachment. Such notice, having been given and proved, shall be deemed sufficient service of process in such action, and such attachment shall thereupon become effective against such estate and the defendant in such action."
The marshal's return states that copies of the certificate of attachment, writ, summons and direction for attachment, complaint and notice of ex parte prejudgment remedy to dissolve or modify, were left at the defendant's usual place of abode, i.e., 582 Skiff Street, North Haven, Connecticut and with the North Haven town clerk.
"Substituted service . . . in any . . . authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act." (Internal quotation marks omitted.) Bove v. Bove, 77 Conn.App. 355, 364, 823 A.2d 383 (2003). "While a court is powerless to enter a personal decree against a nonresident defendant based solely on constructive service, it has power to deal with the defendant's property within the jurisdiction of the court. Constructive service of process upon a defendant in a proceeding against specific property of that defendant within the jurisdiction will enable the court to render a decree binding on the property. The judgment, when rendered, constitutes a charge to be satisfied out of the property which has been seized. The judgment is quasi in rem." Carter v. Carter, 147 Conn. 238, 241, 159 A.2d 173 (1960).
The presence of the pending motion to dismiss does not make the plaintiff ineligible for the court to issue an order of notice. In White-Bowman Plumbing Heating, Inc. v. Biafore, 182 Conn. 14, 437 A.2d 833 (1980), the plaintiff brought suit to collect a debt and first obtained an ex parte attachment on the defendant's assets. Similar to the facts in this matter, the defendant contested the validity of service of process and sought dismissal of the action. One week before the court issued its decision on the motion to dismiss, the plaintiff sought an order of notice. The trial court denied the motion to dismiss on the basis of the pending application for order of notice. In upholding the decision, the Supreme Court stated, "[u]nquestionably the court would have been empowered to issue an order of notice to the defendant and ultimately to perfect its quasi in rem jurisdiction over any of his assets in the hands of the garnishees. The mere filing of the motion to [dismiss] did not deprive the court of its ability to take the additional procedural steps which were necessary before it might adjudicate the interest of the defendant in the property which was in the custody of the court by virtue of the garnishment . . . A motion to [dismiss] may be granted only where the lack of jurisdiction appears on the record . . . The trial court properly denied the motion in this case because the record then indicated a valid garnishment of property of the defendant which would ripen into quasi in rem jurisdiction over the defendant's interest in that property once the requisite notice, which the plaintiff was seeking to provide, had been given to the defendant." (Citations omitted.) Id., 18-19.
Therefore, under General Statutes § 52-284, because the defendant's property has been attached, and because it appears that the defendant is not a resident or inhabitant of this state, the court has the authority to issue an order of notice as is deemed reasonable to apprize him of the pendency of the complaint and attachment. "Before such an order of notice may be issued, [however,] . . . there must be a finding, after evidence is heard, that service could not be made on any of the persons designated in the statute." Carter v. Carter, supra, 147 Conn. 244.
The motion to dismiss is denied, without prejudice. The court will hold an evidentiary hearing on the pending application for order of notice. The parties are to schedule a hearing through the caseflow coordinator.
Because of the decision of the court to deny the motion to dismiss and to hear the parties on the plaintiff's motion for order of notice to perfect quasi in rem jurisdiction over the defendant, the court need not address the several arguments raised by the parties in their respective memoranda regarding the motion to dismiss.
BY THE COURT
Tanzer, Judge.