Opinion
No. CV03-0474948
August 23, 2006
MEMORANDUM OF DECISION
Before the court is the defendant David DeRosa's motion to open judgment and motion to dismiss.
The plaintiffs, Diego Jimenez and Luz Jimenez, allege the following facts in their two-count negligence complaint. On February 5, 2001, Diego Jimenez was operating a motor vehicle owned by Luz Jimenez in a parking lot in West Haven, Connecticut. At the same date, time and place, the defendant, David DeRosa, doing business as Midstate Truck Sales, was plowing the parking lot in a motor vehicle that he owned. During the course of the defendant's plowing, his motor vehicle collided with the motor vehicle that Diego Jimenez was operating. Due to the defendant's negligence and carelessness, Diego Jimenez sustained injuries, and Luz Jimenez' motor vehicle sustained substantial damage.
In the return of service dated January 22, 2003, Mark J. White, a state marshal, attested that he served the writ, summons and complaint upon the defendant by leaving those papers at the defendant's "usual place of abode" at 33 Oxbow Lane in Northford, Connecticut (33 Oxbow Lane). On April 21, 2003, the plaintiffs filed a motion for default for failure to appear, which was granted on April 22, 2003. The plaintiffs filed a certificate of closed pleadings, and on July 17, 2003, following a hearing in damages, the court, Hadden, J.T.R., entered a monetary judgment in favor of Diego Jimenez and Luz Jimenez for $17,500 and $1,682, respectively. On July 22, 2003, the plaintiffs filed a return of notice in which they certified that a copy of the judgment was mailed on that date to the defendant at 33 Oxbow Lane.
On December 20, 2005, the defendant filed a verified motion to open the judgment which is premised on his contention that the writ, summons and complaint were not properly served upon him and he never received the documents. On January 11, 2006, the plaintiffs filed an objection to the defendant's motion to open, accompanied by a memorandum of law and two documents. On January 17, 2006, the defendant filed an appearance in this action. On January 30, 2006, the defendant filed a reply to the plaintiffs' objection to the motion to open, with two documents pertaining to the defendant's dissolution of marriage action. Thereafter, on January 30, 2006, the court, Lager J., denied the defendant's motion to open. In the order, the court stated, "[t]he defendant has failed to meet his burden of establishing that he did not receive notice of the default judgment and that this motion is timely. See Pavone v. West, 82 Conn.App. 623, 628 [ 846 A.2d 884] (2004). Actual receipt of notice is not required as long as notice was sent in accordance with established procedure, as was done here. See Moore v. Brancard, 89 Conn.App. 129, 133 [ 872 A.2d 909] (2005)."
On February 7, 2006, the defendant filed a motion in which he asked the court to reconsider its ruling denying his motion to open, accompanied by a memorandum of law in support thereof and the same exhibits that he attached to his January 30, 2006 reply. According to the defendant, the court misinterpreted the motion to open "as one challenging the validity of notice after service was properly made." On February 7, 2006, the defendant also filed a motion to dismiss for lack of personal jurisdiction, accompanied by a memorandum of law in support thereof. On February 15, 2006, the court, Lager J., granted the defendant's motion to reconsider and ordered that an evidentiary hearing be held regarding the motion. Following the hearing, which was held on March 20, 2006, both parties filed memoranda of law in support of their positions on both the motion to open and the motion to dismiss. On May 8, 2006, the court conducted an evidentiary hearing on the defendant's motion to dismiss.
In their memorandum, the plaintiffs refer to themselves in the singular form. Nevertheless, it appears that this memorandum was filed by both plaintiffs, as they share the same counsel and the memorandum does not specifically state which plaintiff to which it is referring. Therefore, the court will assume both plaintiffs make the arguments raised therein.
The defendant's motion to open is premised on his contention that the process was not properly served upon him in that, as of July 27, 2001, 33 Oxbow Lane was no longer his usual place of abode. He contends that he did not learn that the judgment had been rendered until July 18, 2003. In addition, he maintains that he has a defense to the action and that the interests of justice require that he be provided with an opportunity to present his defense to the court. The plaintiffs oppose the motion to open on the grounds that the defendant was properly served with process at his legal residence and place of abode, he failed to provide adequate evidence that he did not receive the process, and he failed to file the motion within four months of the date that the judgment was rendered as required by General Statutes §§ 52-212 and 52-212a. The defendant replies that his motion is not governed by the four-month limitation of §§ 52-212, 52-212a or Practice Book § 17-4 because the plaintiffs' failure to properly serve him means that the court did not have personal jurisdiction over him. Thus, he contends, the judgment is void and can be set aside at any time.
The Supreme Court has stated: "The principles that govern motions to open or set aside a civil judgment are well established. A motion to open and vacate a judgment . . . is addressed to the [trial] court's discretion . . ." (Internal quotation marks omitted.) Reiner, Reiner Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006). Pursuant to General Statutes §§ 52-212 and 52-212a and Practice Book § 17-4, a party that seeks to open a judgment of the Superior Court is required to file a motion to open within four months of the date of the judgment, or the notice thereof. "Although §§ 52-212 and 52-212a normally limit the authority [of the trial court] to open judgments to a four month period, these statutes do not preclude the opening of a default judgment that is rendered without jurisdiction over a defendant. The prefatory words of § 52-212a establish that the four month limitation only operates `[u]nless otherwise provided by law . . .' As a matter of law, in the absence of jurisdiction over the parties, a judgment is void ab initio and is subject to both direct and collateral attack." (Internal quotation marks omitted.) Wilkinson v. Boats Unlimited, Inc., 236 Conn. 78, 83-84, 670 A.2d 1296 (1996). "A trial court's authority to open such judgments does not arise from General Statutes § 52-212(a) or from Practice Book [§ 17-4] but from its inherent power to open a judgment rendered without jurisdiction." General Motors Acceptance Corp. v. Pumphrey, 13 Conn.App. 223, 228, 535 A.2d 396 (1988). "The court does have inherent authority . . . at any time to open and modify a judgment rendered without jurisdiction." Misinonile v. Misinonile, 190 Conn. 132, 135, 459 A.2d 518 (1983).
General Statutes § 52-212 provides in relevant part: "(a) Any judgment rendered . . . passed upon a default . . . in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the . . . written motion of any party or person prejudiced thereby, showing reasonable cause, or that a . . . defense in whole or in part existed at the time of the rendition of the judgment . . . and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from . . . making the defense."
General Statutes § 52-212a provides in relevant part: "Unless otherwise provided by law . . . a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed."
Practice Book § 17-4 provides in relevant part: "(a) Unless otherwise provided by law . . . any civil judgment rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court."
Accordingly, the court first considers whether it has personal jurisdiction over the defendant. "In the absence of a voluntary appearance, the issuance and service of process or notice is indispensable to the jurisdiction of a court to determine the adverse claims of parties to the litigation. Until notice is given to the defendant of the action or proceedings against him, and he is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment against him even though it may have jurisdiction of the subject matter." (Internal quotation marks omitted.) General Motors Acceptance Corp. v. Pumphrey, supra, 13 Conn.App. 227-28. "Service of process on a party in accordance with the statutory requirements is a prerequisite to a court's in personam jurisdiction over that party." Id., 227. "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." (Citation omitted.) Id., 228.
General Statutes § 52-57(a), which governs service of process on individual Connecticut residents, provides: "(a) 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." "The clear impact of § 52-57(a) is that one of its two alternatives, personal or abode service, must be followed `[e]xcept as otherwise provided' in the General Statutes." Hibner v. Bruening, 78 Conn.App. 456, 460, 828 A.2d 456 (2003).
See also General Statutes § 52-54.
"In many cases, jurisdiction is immediately evident, as where the [marshal'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 . . .
"[W]hether a particular place is the usual place of abode of a defendant is a question of fact. Although the sheriff's return is prima facie evidence of the facts stated therein, it may be contradicted and facts may be introduced to show otherwise." (Citations omitted; emphasis in original; internal quotation marks omitted.) Tax Collector v. Stettinger, 79 Conn.App. 823, 825, 832 A.2d 75 (2003). Thus, if the defendant can show that the officer serving the process "simply left the papers at a place where the defendant did not live, service would not have been effective and jurisdiction would not have vested in the court . . . 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." (Citation omitted.) Hibner v. Bruening, supra, 78 Conn.App. 463.
In the present case, the state marshal White attested that, on January 22, 2003, he left an attested copy of the process at 33 Oxbow Lane, which he characterized as the defendant's usual place of abode. According to the defendant, 33 Oxbow Lane had not been his usual place of abode since September of 2001, when he moved out of the residence as required by a restraining order that his wife brought against him in the context of the dissolution of their marriage. He testified that he moved into his office trailer for several months and then, near the end of 2001, moved to a residence in New Haven, where he continues to reside.
The plaintiffs do not contend that the defendant was actually living at 33 Oxbow Lane on the date of service. Instead, they argue that the evidence regarding the investigation conducted by their attorney and marshal White demonstrates that even if the defendant no longer lived at 33 Oxbow Lane, it continued to be his legal abode for purposes of service of process. Specifically, they point out that 33 Oxbow Lane is listed as the defendant's address in the records they obtained from the Connecticut department of motor vehicles, the North Branford town clerk's office and registrar of voters, the Internet, the police report and the driver's license information of the defendant from the accident. The plaintiffs assert that the defendant should not be rewarded for failing to inform any state or local authorities that he changed his residence, which would have enabled people attempting to serve process upon him to be successful in their efforts.
In commenting on abode service, our Supreme Court has noted that "he most prominent purpose of the law in prescribing the modes of serving civil process was to ensure actual notice to defendants . . . The place where one would be most likely to have knowledge of a service by copy would be at his usual place of abode. What, then, does `usual place of abode' signify as used in [§ 52-57(a)]? One may have two or more places of residence within a State, or in two or more States, and each may be a `usual place of abode.' . . . Service of process will be valid if made in either of the usual places of abode . . ." (Citations omitted; internal quotation marks omitted.) Clegg v. Bishop, 105 Conn. 564, 569-70, 136 A. 102 (1927). "Connecticut decisions place great reliance upon a man's residence rather than his domicile . . . [For example], [w]here a defendant has been suddenly taken to a hospital from his home and was a patient at the hospital at the time of service of process, his home was his `usual place of abode.' . . . A prisoner is presumed to have his usual place of abode where his family dwelt at the time he was imprisoned, since he never abandoned his former home . . . Where a man boards or his hotel, although not his permanent residence, may be his usual place of abode within the meaning of the statute." (Citations omitted.) Capitol Light Supply Co. v. Gunning Electric Co., 24 Conn.Sup. 324, 326-27, 190 A.2d 495 (1963). On the other hand, where the defendant has moved, and there is no evidence that he has done so temporarily or intends to return, his former residence is no longer his usual place of abode. Wachovia Bank, N.A. v. Pond Place Development, II, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 04 4001070 (May 3, 2006, Brunetti, J.) ( 41 Conn. L. Rptr. 320); Barco Auto Leasing v. Andrews, Superior Court, judicial district of Hartford, Docket No. CV 99 0593309 (April 16, 2002, Hale, J.) and Jerjies v. Jerjies, Superior Court, Family Support Magistrate Division at Hartford, Docket No. FA 82 0271652 (December 29, 1999, Lifshitz, F.S.M.).
After evaluating the testimony of the witnesses and the documentary evidence, the court concludes that the defendant did not reside at 33 Oxbow Lane at the time that the marshal left the process at that address. Regarding the plaintiffs' contention that the defendant should not be allowed to deny the validity of service because the records of several government agencies listed 33 Oxbow Lane as his address, it is noted that, in the absence of evidence that the defendant was deliberately attempting to evade service of process, similar arguments have been rejected by the Superior Court in at least four cases. See Jerjies v. Jerjies, supra. Superior Court, Docket No. FA 82 0271652; Piorkowski v. Federal Express Corp., Superior Court, judicial district of New Haven, Docket No. CV0405352 (February 6, 1998, Levin, J.); Shircliff v. Mazzaro, Superior Court, judicial district of Waterbury, Docket No. CV 0127199 (May 9, 1996, Pellegrino, J.) ( 16 Conn. L. Rptr. 630); Nevins v. Moretti, Superior Court, judicial district of New London at Norwich, Docket No. CV 0094957 (July 2, 1991, Teller, J.) ( 4 Conn. L. Rptr. 244); and State v. Baltromitis, 5 Conn. Cir.Ct. 72, 242 A.2d 99 (1967), cert. denied, 156 Conn. 653, 241 A.2d 379 (1968). Generally, in these cases, the court reasoned that the courts cannot create alternative means for accomplishing abode service, as the responsibility for doing so belongs to the legislature. This court finds this reasoning persuasive. Absent evidence that the defendant deliberately failed to provide these agencies with his present address in an attempt to evade service of process, the court finds that his conduct does not validate the service of process at his former address.
At the second evidentiary hearing, Joyce DeRosa, the defendant's former wife, testified that when documents were served to the defendant at 33 Oxbow Lane, she gave the documents to him. She specifically stated that the summons and complaint were handed to him in 2003. To the contrary, the defendant testified that after he left 33 Oxbow Lane, neither his former wife nor his children, who continued to reside there, ever gave him any documents related to the present action. He further testified that any mail that was addressed to him at the residence was given to him by the attorneys at settlement negotiations for the dissolution action and that this mail only consisted of bills. He testified he did not receive any mail from the court or any other entity at other addresses regarding this action until he received a letter from the plaintiffs' attorney informing him of the judgment.
In at least one case, a judge of the Superior Court has found that although a defendant was not served at his usual place of abode, the service was effective in that the plaintiff made a good faith effort to determine if the abode was the correct one, and the defendant had actual notice of the action. See Angelicola v. Rrecl, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000547 (January 27, 2006, Brunetti, J.) ( 40 Conn. L. Rptr. 646). That case is distinguishable, however, in that the marshal in that case "did more than simply leave the papers at the door, he spoke to a person who acknowledged the defendants' names, took the papers and obviously delivered the papers . . . and . . . the defendants did receive actual notice of the action" prior to the time that the court rendered judgment. Id. In the present case, there is conflicting evidence as to whether the defendant received actual notice before the judgment was rendered. Moreover, our appellate courts have not concluded that the type of actual notice at issue can override the statutory requirements of § 52-57(a). Indeed, our Supreme Court has cautioned that "[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." (Internal quotation marks omitted.) Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003).
For the forgoing reasons, it is evident that the court does not have personal jurisdiction over the defendant, and the court should exercise its "inherent authority" to grant the defendant's motion to open the judgment. See Misinonile v. Misinonile, supra, 190 Conn. 135.
The defendant also bases his motion to dismiss on his assertion that the court lacks personal jurisdiction over him. As previously noted, "an action commenced by . . . improper [abode] service must be dismissed." Hibner v. Bruening, supra, 78 Conn.App. 463. The plaintiffs have, however, raised a procedural argument in opposition to the motion to dismiss. Specifically, the plaintiffs contend that the defendant waived his right to file a motion to dismiss by not complying with Practice Book § 10-30 because he did not file the motion until February 7, 2006, which was more than thirty days from the date that he first appeared in this action. According to the plaintiffs, the thirty-day limitation contained in § 10-30 should be calculated from the date of the defendant's motion to open, which was December 20, 2005, rather than the date that the defendant filed his appearance form, which was January 17, 2006.
Section 10-30 provides in relevant part: "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance . . ." Practice Book § 10-32 provides in relevant part: "Any claim of lack of jurisdiction over the person . . . is waived if not raised by a motion to dismiss filed . . . within the time provided by Section 10-30." As our Supreme Court has noted, § 10-30 "specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6 . . . Thus, thirty-one days after the filing of an appearance . . . a party is deemed to have submitted to the jurisdiction of the court." Pitchell v. Hartford, 247 Conn. 422, 435, 722 A.2d 797 (1999).
The Supreme Court has also explained that "[t]he entry of an appearance need not necessarily be made by filing a formal appearance form. The conduct of a party may operate as a general appearance . . . A general appearance may arise by implication from the defendant's seeking, taking, or agreeing to, some step or proceeding in the cause, beneficial to himself or detrimental to the plaintiff, other than one contesting the jurisdiction only." (Citations omitted; internal quotation marks omitted.) Beardsley v. Beardsley, 144 Conn. 725, 730, 137 A.2d 752 (1957). "Our cases have recognized that a party may waive its objection to a trial court's erroneous exercise of persona] jurisdiction if that party generally appears in the case and actively prosecutes the action or contests the issues . . . There can be no waiver, however, if the party being haled into court [f]ar from consenting to or waiving objection to [the court's] action . . . advance[s] strenuous opposition to it and steadfastly maintain[s] that position thereafter." (Citations omitted; internal quotation marks omitted.) In re Baby Girl B., 224 Conn. 263, 292, 618 A.2d 1 (1992).
In the present case, from the time the defendant appeared in the case by filing his motion to open the judgment, he has steadfastly and only contested the court's personal jurisdiction over him. Therefore, he did not, by filing the motion to open, impliedly consent to the jurisdiction of the court. For this reason, the defendant's motion to open should not be deemed as a general appearance for the purpose of determining whether he filed his motion to dismiss within the time required by § 10-30. Instead, the timeliness of the motion to dismiss should be determined by whether it was filed within thirty days of the date that the defendant filed his formal appearance, which it unquestionably was.
As to the merits of the defendant's motion to dismiss, the reasoning that the court outlined in concluding that it lacks personal jurisdiction over the defendant in considering his motion to open applies. Therefore the court must grant the defendant's motion to dismiss.
CONCLUSION
In conclusion, the defendant's motion to open the default judgment and his motion to dismiss are both granted.