Opinion
No. CV 08-5004233
August 20, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The defendants, Martin L. Haines III and the Law offices of Haines Hodas, Chartered, move to dismiss this application for prejudgment remedy on the grounds of lack of jurisdiction over the non-resident defendants.
The pleadings and undisputed affidavits submitted by the parties disclose that the plaintiff, James B. Irwin, is a citizen of the United States and owner of three parcels of real property in Litchfield, Connecticut, where he resides "from time to time." The defendants, Attorney Martin L. Haines, III, and the Law Office of Haines Hodas, Chartered, represent the plaintiff's wife in a dissolution of marriage action filed in the State of Florida. At some point before the plaintiff filed the present action, the defendants caused notices of lis pendens to be filed against the plaintiff's properties on the land records in the Town of Litchfield in order to, inter alia, secure payment for legal services rendered and costs incurred during representation of the plaintiff's wife in the divorce action.
Haines is an attorney licensed to practice law in the State of Florida, and is not a Connecticut resident. The Law Office of Haines Hodas, Chartered, is also located in Florida.
The Florida court with jurisdiction over the matrimonial dissolution action subsequently ordered the lis pendens to be removed from the Litchfield land records.
The plaintiff filed a two-count complaint and application for prejudgment remedy alleging abuse of process as to both defendants, respectively. The complaint alleges that the defendants filed the lis pendens for improper purposes not authorized under General Statutes § 52-325(b); namely, to "harass [sic], annoy and otherwise attempt to compel the plaintiff to come to favorable terms with his wife in [the pending] divorce action." The complaint furthermore alleges that the defendants' attempt to cloud title was intended to and did cause the plaintiff emotional distress. The plaintiff seeks compensatory damages, punitive damages, costs, attorneys fees and an order from this court requiring the defendants to remove the lis pendens from each of the subject properties.
Based on these facts, the defendants argue that the court lacks personal jurisdiction over them because they are nonresidents and this action is outside the scope of Connecticut's longarm jurisdiction.
DISCUSSION
"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, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). "[W]hen ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Mercer v. Rodriquez, 83 Conn.App. 251, 255, 849 A.2d 886 (2004). The plaintiff bears the burden of proving the court's jurisdiction when it is challenged by a nonresident individual. Solano v. Calegari, 108 Conn.App. 731, 737-38, 949 A.2d 1257, cert denied, 289 Conn. 943, 959 A.2d 1010 (2008).
"When a defendant files a motion to dismiss challenging the court's jurisdiction, a two part inquiry is required. The trial court must first decide whether the applicable state long arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." (Internal quotation marks omitted.) Knipple v. Viking Construction, Ltd., 236 Conn. 602, 606 n. 6, 674 A.2d 426 (1996).
General Statutes § 52-59b, Connecticut's longarm statute, provides the basis for jurisdiction over, inter alia, an individual nonresident defendant. Subsection (a) provides in relevant part: "a court may exercise personal jurisdiction over any nonresident individual . . . who in person or through an agent: (1) [t]ransacts any business within the state; [or] (2) commits a tortious act within the state . . ." (Emphasis added.) General Statutes § 33-929(f) governs when foreign corporations are subject to suit in Connecticut and provides in relevant part: "[e]very foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising . . . out of tortious conduct in this state, whether arising-out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance." (Emphasis added.)
In the present case, the defendants move to dismiss on the ground that the court lacks personal jurisdiction over them insofar as they have neither transacted business nor committed a tort in Connecticut by filing the aforementioned notices of lis pendens therein. With respect to the latter portion of their argument, the defendants contend that "[t]he recording of the notices of lis pendens is specifically authorized by law where a party is involved in a divorce proceeding and for this reason, the recording cannot be deemed a tortious act."
"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.) Mercer v. Rodriquez, supra, 83 Conn.App. 255. As the defendants' motion to dismiss seeks to challenge the legal sufficiency of the plaintiff's causes of action, it must fail on this ground. See Rosow v. Heise, Superior Court, judicial district of Hartford at Hartford, Docket No. CV980582956S (June 17, 1999, Teller, J.) [ 25 Conn. L. Rptr. 87]. Accordingly, because the plaintiff has alleged in his complaint that he is a Connecticut resident, albeit from "time to time," and that the defendants have committed a tort in the State of Connecticut, this court may assert personal jurisdiction over the latter pursuant to §§ 52-59b and 33-929(f) unless the exercise thereof would violate constitutional principles of due process. See Knipple v. Viking Communications, Ltd., supra, 236 Conn. 606.
"The federal due process clause permits state courts to exercise in personam jurisdiction over a nonresident corporate [or individual] defendant that has certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice . . . A state court will have specific jurisdiction over a nonresident defendant whenever the defendant has purposefully directed [its] activities at residents of the forum . . . and the litigation [has] result[ed] from alleged injuries that arise out of or relate to those activities." (Internal quotation marks omitted.) Id., n. 6; see also Panganiban v. Panganiban, 54 Conn.App. 634, 639, 736 A.2d 190, cert. denied, 251 Conn. 920, 742 A.2d 359 (1999).
In determining whether the exercise of jurisdiction would offend traditional notions of fair play and substantial justice, the defendants' "conduct and connection with the forum State [must be] such that [they] should reasonably anticipate being hauled into court there." (Internal quotation marks omitted.) United States Trust Co. v. Hobart, 197 Conn. 34, 41, 495 A.2d 1034 (1985). "Thus, [t]he twin touchstones of due process analysis under the minimal contacts doctrine are foreseeability and fairness. United States Trust Co. v. Bohart, 197 Conn. 34, 41, 495 A.2d 1034 (1985)." (Internal quotation marks omitted.) Hill v. W.R. Grace Co., 42 Conn.Sup. 25, 33, 598 A.2d 1107 (1991).
Given that the defendants availed themselves of Connecticut law by filing the notices of lis pendens on the land records in the Town of Litchfield, they should reasonably anticipate being sued here should their activity in this regard constitute a tort. Indeed, a single act having impact in and connection with the forum state can satisfy the minimum contacts test. See Adams v. Origlio, Superior Court, judicial district of Danbury, Docket No. 323248 (June 14, 1996, Moraghan, J.) ( 17 Conn. L. Rptr. 164). Accordingly, under these circumstances, the court's exercise of jurisdiction based on the defendants' sufficient contacts with Connecticut is consistent with due process and would not offend traditional notions of fair play and substantial justice. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
For the forgoing reasons, the defendants' motion to dismiss is denied.