Opinion
No. FST CV 116008196 S
June 15, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS #108
In this mortgage foreclosure action, the plaintiff, Citibank, N.A., has brought suit against the defendant, Jonathan Rapoport. According to the facts alleged in the complaint, on June 29, 2006, the defendant signed a $525,000 adjustable rate mortgage note in favor of American Home Mortgage. In order to secure the indebtedness provided in this note, American Home Mortgage received a mortgage interest in property designated as "75 Haig Avenue, Stamford, Connecticut 06905." This mortgage was recorded on the Stamford land records on July 5, 2006, and the mortgage note was eventually assigned to the plaintiff. The defendant has failed to make payments in accordance with the terms of the note, and, as a result, the plaintiff elected to accelerate the amount due under the terms of the note and commence foreclosure proceedings. According to the return of service, State Marshal Robert M. Wolfe left process at the "usual place of abode of . . . Jonathan I. Rapoport, 75 Haig Avenue, Stamford, CT" on January 25, 2011.
On March 3, 2011, the defendant filed a timely motion to dismiss. As stated on the defendant's motion, the defendant is moving to dismiss this action because the court is without personal jurisdiction over him due to improper abode service. The defendant's motion did not attach a memorandum of law as required by Practice Book § 10-31(a). Although the defendant failed to file a memorandum of law at the same time as his motion, he did file his own supporting affidavit on March 4, 2011. On March 17, 2011, the plaintiff filed a memorandum of law in opposition to the defendant's motion. The plaintiff's memorandum of law attached: (1) a copy of the return of service from this case; (2) the notarized affidavit of Marshal Wolfe and (3) the C.O.N.C.O.R.D. business inquiry pages for Haig Development, LLC and Wilson Electric Inc. On April 28, 2011, the defendant finally filed a memorandum of law in support of his motion to dismiss. The parties initially appeared before the court and argued this motion at the May 2, 2011 short calendar. The court then ordered the parties to conduct a Standard Tallow hearing, which occurred on June 2, 2011.
The defendant's counsel filed his appearance on February 2, 2011.
Practice Book § 10-31(a) provides in relevant part: "This motion [to dismiss] shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record."
According to C.O.N.C.O.R.D., each of these entities has a business address at 75 Haig Avenue in Stamford.
On April 29, 2011, the plaintiff filed a motion to strike this memorandum of law. The plaintiff moves to strike the subject memorandum of law on the ground that the defendant did not file this pleading simultaneously with the filing of his motion to dismiss as required by Practice Book § 10-31(a). On May 26, 2011, the defendant filed a memorandum of law in opposition to the plaintiff's motion to strike. It is the defendant's position that the Practice Book does not require that a memorandum of law in support of a motion to dismiss must be filed at the same time as the motion. Additionally, on May 27, 2011, the plaintiff filed a pleading wherein it urged the court to deny the present motion to dismiss simply because of the untimely filing of the defendant's supporting memorandum. Although the court agrees with the plaintiff's position that Practice Book § 10-31(a) requires that a supporting memorandum of law must be filed simultaneously with its corresponding motion, the court does not need to rule on the plaintiff's motion to strike this document because the court is denying the defendant's motion to dismiss on substantive grounds.
Similarly, the court does not need to address the plaintiff's argument that the defendant's motion to dismiss should be denied for the sole reason that the defendant failed to file his memorandum of law at the same time as the motion to dismiss.
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134 (2007). Pursuant to Practice Book § 10-31, a defendant can bring a motion to dismiss for improper service of process. "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." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80 (1989). "One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722 (2003). Accordingly, "an action commenced by . . . improper [abode] service must be dismissed." Hibner v. Bruening, 78 Conn.App. 456, 463 (2003).
Under Connecticut law, "[a] proper officer serving process must comply with the provisions of [General Statutes] § 52-57(a), which require that process be served by leaving it `with the defendant, or at his usual place of abode . . .'" Hibner v. Bruening, supra, 78 Conn.App. 463. "For service pursuant to § 52-57(a), the `usual place of abode' presumptively is the defendant's home at the time when service is made . . . Whether a particular locale is the usual place of abode is a question of fact." (Citation omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338 (2008). "When . . . the defendant is a resident of Connecticut who claims that no valid abode service has been made . . . that would give the court jurisdiction over [the defendant's] person, the defendant bears the burden of disproving personal jurisdiction . . . 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.) Id., 339. "[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.) Id., 341.
General Statutes § 52-57(a) provides: "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."
At the June 2, 2011 hearing before this court, the defendant gave the following testimony regarding the service of process that took place in this case. According to the defendant, he has lived at the 75 Haig Avenue property since 1990. This premises has a two-family residential structure. The defendant testified that he lives in the property's second floor unit, whereas a tenant, Douglas Corbin, inhabits the first floor apartment. These two apartments have completely separate entrances that are located in different sections of the house. The defendant testified that following the service of process on January 25, 2011, he received a telephone call from Corbin in which Corbin indicated that he had some legal papers for him. Corbin then gave the defendant the legal process from this case. The defendant maintains that he never saw any legal papers in front of the door to his unit. Furthermore, the defendant testified that the proper address of his residence is "75 Haig Avenue, Second Floor."
It is clear that the inference that the defendant wants the court to draw from his testimony is that the marshal left process at his tenant's door as opposed to the door of his apartment. Nevertheless, neither Corbin nor Marshal Wolfe testified to that effect. Even if the court were to credit the entirety of the defendant's testimony, all that was proven was that: (1) process was left at 75 Haig Avenue and (2) the defendant was handed the process by Corbin. The defendant simply has not proven that the facts stated in the marshal's return are incorrect.
Despite this fact, the court does note that the marshal's return lacks specificity because it only states that service was conducted on "75 Haig Avenue" in Stamford as opposed to the precise apartment number. "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." Uvalic v. Driscoll, Superior Court, judicial district of Hartford, Docket No. CV 03 0828393 (January 24, 2005, Shapiro, J.) [ 38 Conn. L. Rptr. 595], citing Clover v. Urban, 108 Conn. 13, 16-17 (1928) (stating that "[o]ur statute provides that service of civil process may be made at the usual place of abode of the defendant . . . [I]t is manifest that leaving a copy of process anywhere . . . in the apartment house, would be insufficient. To accomplish the purpose of the statute, service should have been made at the apartment occupied by [the defendant] . . . In legal view, the apartments in a house of this character are as separate and distinct as though under separate roofs"). "The failure of the marshal to note the specific apartment number [in his return] is at least a circumstantial defect and might well be considered a substantive defect." Mackey v. Moore, Superior Court, judicial district of Hartford, Docket No. FA 01 0631951 (April 14, 2002, Lifshitz, F.S.M.). Nevertheless, the Connecticut Supreme Court has held that the failure to include an apartment number in the process when the papers were correct as to the street and building number is not a defect that deprives the court of jurisdiction. Hartford National Bank Trust Co. v. Tucker, 178 Conn. 472, 479 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d 319 (1980) (stating that "General Statutes § 52-54, which requires abode service, [does not] create a lack of jurisdiction in all cases where the apartment number is omitted"). Accordingly, although it certainly would have been better practice for the marshal to note the exact apartment where he served process, the court determines that the marshal's failure to include the apartment number does not per se render this court without personal jurisdiction over the defendant.
General Statutes § 52-54 provides: "The service of a writ of summons shall be made by the officer reading it and the complaint accompanying it in the hearing of the defendant or by leaving an attested copy thereof with him 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."
Consequently, the court is left with a situation where the return of service is not specific as to which apartment unit that the marshal served, but the parties all agree that service was left at the correct residence. As case law dictates that when jurisdiction is based on abode service that the defendant has the burden of disproving jurisdiction and that the attestations in the marshal's return of service are prima facie evidence of such service, the court determines that the defendant has failed to meet his burden to demonstrate that he is entitled to dismissal of this case. As such, the present case is similar to Genung's Inc. v. Rice, 33 Conn.Sup. 554, cert. denied, 171 Conn. 739, cert. denied, 429 U.S. 929, 97 S.Ct. 336, 50 L.Ed.2d 300 (1976), where the Appellate Session of the Superior Court upheld a trial court's denial of a motion to vacate a judgment due to improper abode service under the following facts. The sheriff's return of service indicated that he had served the defendant at her usual place of abode at "616 Winchester Avenue, New Haven." At the hearing on her motion, the defendant testified that while she indeed resided at that address, the building in question was a multi-unit structure that had three apartments. When upholding the decision of the trial court, the Appellate Session determined that "[t]he defendant did not sustain her burden of proof that she was not served in compliance with the provisions of § 52-54. No evidence was presented, for example, to describe the type of building in which she resides or the location of her apartment as well as its outside door, or whether the other apartments were occupied." Id., 558. Unlike cases where "evidence was presented to indicate the exact location of the litigant's apartment as well as the point of service, and [where the court] held . . . that the presumption created by the prima facie evidence of the officer's return was completely rebutted"; (Emphasis added.) Id., 558-59; the defendants in both the Genung's Inc. case and the present matter failed to come forth with sufficient evidence to maintain their burden on a motion to dismiss.
Although the defendant in the present case did testify regarding the character of the subject premises, the defendant still did not provide the court with any evidence indicating where the process was actually placed by the marshal. Even if credited to its fullest, all that the defendant's testimony revealed is that the process was left at the 75 Haig Avenue property and that it was eventually given to the defendant by his tenant, Douglas Corbin. Although this scenario may seem unlikely, it is certainly possible that the marshal left process in front of the door to the defendant's apartment and that Corbin decided to intercept it and personally hand it to the defendant. This ambiguity would presumably have been resolved if the court had been able to hear the testimony of either Marshal Wolfe or Corbin, but the defendant chose not to call either of these individuals to the witness stand. Accordingly, the court determines that the defendant has not met his burden to rebut the facts stated in the marshal's return.
Although he was in the courtroom at the time of the hearing, neither party called Marshal Wolfe to the witness stand. Following this tactical decision, the defendant argued that the court should take an adverse inference from the plaintiff's decision not to have Marshal Wolfe testify. While there may be some logic to the defendant's position that the plaintiff's failure to call Marshal Wolfe is indicative of the fact that his testimony would likely have been unfavorable to the plaintiff, it is important to note that "[t]he inference drawn from the failure to testify does not supply the place of evidence of material facts and does not shift the burden so as to relieve the party upon whom it rests of the necessity of establishing a prima facie case, although it may turn the scale when the evidence is closely balanced." (Internal quotation marks omitted.) Matza v. Matza, 226 Conn. 166, 186 (1993). As the defendant has failed to meet his burden to produce sufficient evidence to rebut the facts stated in the marshal's return, the court declines the defendant's invitation to draw an adverse inference from the plaintiff's decision not to call Marshal Wolfe to the stand.
It is also worth noting that the record reflects that the defendant received actual and timely notice of the pendency of these proceedings. "Section 52-57(a), authorizing abode service, should be construed liberally in cases in which the defendant received actual notice." Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 861-62 (2006), cert. granted, 282 Conn. 901 (2007); see also Hartford National Bank Trust Co. v. Tucker, supra, 178 Conn. 479 (stating that "[t]he chief purpose of this requirement [of abode service] is to ensure actual notice to the defendant that the action is pending"). The return of service indicates that the marshal served process on the 75 Haig Avenue property on January 25, 2011, and the defendant's counsel filed his appearance on February 2, 2011. Consequently, the defendant had already obtained the services of an attorney no fewer than eight days after the commencement of these proceedings. Similarly, on that same date, the defendant submitted a form indicating that he wanted to participate in the foreclosure mediation program. Therefore, it is clear that the defendant received timely notice of this case.
In the Fine Homebuilders, Inc. case, the plaintiff withdrew the action before the Supreme Court ruled on the merits of the appeal from the Appellate Court.
For all of the reasons stated above, the court denies the defendant's motion to dismiss for lack of personal jurisdiction due to improper abode service.