Opinion
No. CV 05 4007244 S
November 14, 2005
MEMORANDUM OF DECISION RE MOTION #101A MOTION TO DISMISS
The plaintiffs Robert P. Murphy and Lisa H. Brenner have filed an action against the defendant Del Sole Del Sole, L.L.P. (hereinafter "Del Sole").
The State Marshal's Return of Service indicates that service was made on August 12, 2005 as follows:
Then and there by virtue hereof and by direction of the plaintiff's attorney, I made due and legal service upon the within named defendant: DEL SOLE DEL SOLE, L.L.P. by leaving with and in the hands of: ATTOREEY EDWARD F. PIAZZA — Person in charge at: DEL SOLE DEL SOLE, LLP, 46 SOUTH WHITTLESEY AVENUE, WALLINGFORD, CT 06482 a true and attested copy of the original Writ of Summons — Civil, Complaint and Statement of Amount in Demand with my doings thereon endorsed.
The defendant filed its Appearance on September 12, 2005. On October 6, 2005, the defendant filed a Motion to Dismiss this action for reason that: "The Court lacks jurisdiction in the above entitled action because the plaintiff failed to serve the writ summons and complaint on any of the partners of the limited liability partnership as required by General Statutes § 52-57(d).
Discussion
Section 10-30 of the Connecticut Practice Book concerns the motion to dismiss for lack of personal jurisdiction. This section provides that:
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. Except in summary process matters, the motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the judicial authority otherwise directs. Any adverse party may, within ten days of the filing of the motion with the court, file a request for extension of time to respond to said motion. The clerk shall grant such request and cause the motion to appear on the short calendar not less than thirty days from the filing of the request.
Subsection 10-31(4) of the Connecticut Practice Book provides that a motion to dismiss shall be used to assert insufficiency of process. The defendant asserts that the process in this matter was insufficient for reason that the plaintiffs failed to serve the writ, summons and complaint on any of the partners of the limited liability partnership as required by § 52-57(d) C.G.S. This statute concerns the manner of service of process on partnerships. It provides that:
In actions against a partnership, service of process may be made by personally serving any process within the state upon any one of the partners or, if none of the partners are residents of the state, service may be made upon the Secretary of the State; provided, prior to the return date, the officer serving the writ shall mail a copy of the writ and the complaint by registered or certified mail, return receipt requested, to the last-known address of every partner named in the writ not personally served. A statement of such mailing and receipt therefore shall be included in the officer's return. (Emphasis added.)
On October 14, 2005, the plaintiffs filed an objection to the motion to dismiss. The plaintiffs assert that the motion should be denied because when Attorney Piazza accepted the service in this matter he represented himself to the State Marshal as being capable of accepting service of process for the defendant. The plaintiffs further assert that the defendant received actual notice of the litigation. The plaintiffs lastly assert that the defendant is estopped from asserting that the service of process was insufficient for reason that the State Marshal served the Complaint "due to the direct instruction of an attorney with Defendant Limited Liability Partnership, a law firm."
"[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." (Internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 101-02, 733 A.2d 809 (1999).
"When the person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate." Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 163 n. 8, 561 A.2d 931 (1989). Although Tarnopol has been superseded by statute on other grounds, Hatt v. Burlington Coat Factory, 263 Conn. 279, 295, 819 A.2d 260 (2003), our Supreme Court still requires "strict compliance with . . . procedural requirements." Id. at 294. See Hyde v. Richard, 145 Conn. 24, 25-26, 138 A.2d 527 (1958); Fitzsimons v. International Association of Machinists, 125 Conn. 490, 493, 7 A.2d 448 (1939); Nelson v. Stop Shop Co., 25 Conn.App. 637, 641, 596 A.2d 4, cert. denied, 220 Conn. 924, 598 A.2d 364 (1991). "When 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." Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003).
It is undisputed that the plaintiffs never made personal or abode service on any of the partners of Del Sole; instead the plaintiffs assert that the service that was made upon Attorney Piazza, an associate of Del Sole was adequate under the circumstances.
Service on the "Person in Charge"
The State Marshal stated in the Return of Service as well as testified at the hearing concerning this matter that he served process on Attorney Piazza after asking him was he the person in charge. The Court notes that the defendant in the instant action is a limited liability partnership, not a private corporation. Therefore appropriate service can only he made on the defendant pursuant to the provisions of § 52-57(d) C.G.S. This statute, unlike § 52-57(c) C.G.S which concerns service on private corporations, does not provide for service upon "the person in charge" and such service on a partnership is inadequate for failure to comply with the statutory requirements of service upon a partnership.
A hearing was held concerning this matter during the November 7, 2005 Short Calendar.
Section 52-57(c) provides that:
In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located. In actions against a private corporation established under the laws of any other state, any foreign country or the United States, service of process may be made upon any of the aforesaid officers or agents, or upon the agent of the corporation appointed pursuant to section 33-922. (Emphasis added.)
The Individual That Was Served Represented That He Was Capable of Accepting Service
The plaintiffs assert that although § 52-57(d) provides that service of process on a partnership may be made by personally serving process within the state upon one of the partners, § 34-13b C.G.S. provides in pertinent part that each limited partnership shall have and maintain a statutory agent for service. The plaintiffs further assert that Del Sol does not have a registered agent for service of process listed with the Secretary of the State. The plaintiffs go on to assert that "it was reasonable for the State Marshal to rely on Attorney Piazza's statements that he was cable of accepting service on behalf of Del Sole. This position however ignores the explicit provisions of § 34-13b that concern service when no agent for service of process has been appointed. Subsection 34-13b(g) provides that:
The Court notes that no evidence was submitted that Attorney Piazza ever held himself out to be a member of the partnership.
If it appears from the records of the Secretary of the State that such a limited partnership has failed to appoint or maintain a statutory agent for service, or if it appears by affidavit attached to the process, notice or demand of the officer or other proper person directed to serve any process, notice or demand upon a limited partnership's statutory agent for service appearing on the records of the Secretary of the State that such agent cannot, with reasonable diligence, be found, service of process, notice or demand on such limited partnership may, when timely made, be made by such officer or other proper person by: (1) Leaving a true and attested copy thereof, together with the required fee at the office of the Secretary of the State or depositing the same in the United States mails, by registered or certified mail, postage prepaid, addressed to such office, and (2) depositing in the United States mails, by registered or certified mail, postage prepaid, a true and attested copy thereof, together with a statement by such officer that service is being made pursuant to this section, addressed to such limited partnership at the office designated in the certificate of limited partnership.
Accepting the plaintiffs' argument in its best light, service in the instant action would still be insufficient for reason that it was not made by leaving a true and attested copy of the writ, summons and complaint with the Secretary of the State in accordance with Subsection 34-13b(g)(1) C.G.S., nor by depositing them in the United States mails addressed to the limited partnership pursuant to § 34-13b(g)(2) C.G.S.
The Defendant Is Estopped from Asserting Insufficient Service of Process
"Strong public policies have long formed the basis of the doctrine of equitable estoppel. The office of an equitable estoppel is to show what equity and good conscience require, under the particular circumstances of the case, irrespective of what might otherwise be the legal rights of the parties . . . No one is ever estopped from asserting what would otherwise be his right, unless to allow its assertion would enable him to do a wrong." (Internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 22, 236, 842 A.2d 1089 (2004). "Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse." Bozzi v. Bozzi, 177 Conn. 232, 241, 239, 413 A.2d 834 (1979). "There are two essential elements to estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. In the absence of prejudice, estoppel does not exist." (Internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, supra, 268 Conn. 236. "The party claiming estoppel . . . has the burden of proof." (Internal quotation marks omitted.) Id., 235. "It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." (Internal quotation marks omitted.) Celetano v. Oaks Condominium Assoc., 265 Conn. 579, 615, 830 A.2d 164 (2003). Our courts have applied the equitable doctrine of estoppel, when warranted, to preclude defendants from asserting improper service of process challenges to the court's jurisdiction. See Stevenson Lumber Co. Suffield, Inc. v. Salcedo, Superior Court, judicial district of Hartford, Docket No. CV 000595374 (July 18, 2000, Hennessey, J.) ( 27 Conn. L. Rptr. 568); Shawmut Bank Connecticut, J.A. v. Masterson, Superior Court, judicial district of New Haven at Meriden, Docket No. 242822 (July 14, 1993, Blue, J.) ( 9 Conn. L. Rptr. 401); but see Wylie v. Wachovia Bank N.A., Superior Court, judicial district of New Haven, Docket No. CV 03 0480076 (November 7, 2003, Devlin, J.) (finding defendant did not engage in misleading conduct to warrant application of estoppel); Nevins v. Moretti, Superior Court, judicial district of Norwich at New London, Docket No. 09 49 57 (July 2, 1991, Teller, J.) ( 4 Conn. L. Rptr. 244) (denying plaintiff's estoppel claim where plaintiff failed to use due diligence to determine whether defendant, motorist, resided at last recorded address). The courts have not however, applied the doctrine where, despite the defendant's misrepresentation, a plaintiff had alternate means of making service of process. See Gallop v. Commercial Painting Co., 42 Conn.Sup. 187, 197, 612 A.2d 826, 6 Conn. L. Rptr. 9 (1992) (refusing to estop defendant from asserting that statute of limitations bars action because plaintiff had alternative means of serving process on evasive defendant).
In the current situation the plaintiffs do not allege that a "party," but the employee of the party did or said something that was intended or calculated to induce the State Marshal to believe that service upon him was proper. The plaintiffs do not allege or offer any evidence that the defendant in any way authorized or consented to Attorney Piazza accepting service on its behalf. Furthermore, the plaintiffs have failed to show that they exercised due diligence to know the truth, and that they not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge. See Celetano v. Oaks Condominium Assoc., supra. As was previously stated herein, the party claiming estoppel has the burden of proof. Lombardo's Ravioli Kitchen, Inc. v. Ryan, supra. This Court concludes that the plaintiffs have failed to sustain said burden of proof The motion to dismiss for lack of personal jurisdiction is granted. So ordered.
The Court notes that the defendant submitted affidavits from the partners of Del Sole that state that Attorney Piazza was not authorized to accept service for Del Sole.
The Court does not address the plaintiffs' request for relief pursuant to § 52-592 C.G.S. for reason that said issue would more appropriately be raised in a separate pleading.