Opinion
No. CV 02 0190247
May 6, 2003
MEMORANDUM OF DECISION
The plaintiffs, James Ross and Victoria S. Ross, purchased their home at 16 Hillandale Road in Westport from the defendants, Michael J. Castelano and Andrea M. Castelano, on or about March 27, 2001. In their complaint, the plaintiffs allege that in connection with this sale, the defendants represented that the sewer system was adequately functioning, that after the closing, the plaintiffs discovered that the sewer system was malfunctioning, which cost the plaintiffs $30,000 to repair. The plaintiffs maintain that they would not have purchased this dwelling had the defendant not falsely represented the condition of the sewer system.
As authorized by Practice Book § 10-30, the defendants filed timely motion (#104) to dismiss for lack of jurisdiction. Grounds for this motion include lack of jurisdiction over the person, insufficiency of process and insufficiency of service of process. The deputy marshal's return of service indicates that he made service pursuant to General States § 52-59b by leaving a copy of process with the secretary of state, and by sending another copy thereof to both defendants by certified mail addressed to both defendants at "450 West 62nd Street, Miami Beach, Florida." The marshal filed a supplemental return attaching the return receipts with signatures by someone other than the two defendants.
General Statutes § 52-59b (a) provides that this court may exercise personal jurisdiction over a nonresident individual who commits "a tortious act" in this state. The plaintiffs have alleged that the defendants, who moved to Florida after selling their home to the plaintiffs, committed the tort of fraudulent misrepresentation in this state by falsely representing the status of the sewer system servicing their home, which in turn induced the plaintiffs to purchase the subject premises. Subsection (c) of the above referenced statute discusses the manner of service on such nonresidents. In addition to serving the secretary of the state, the marshal must send a copy of process by registered or certified mail "to the defendant at the defendant's last known address."
The defendant Andrea Castelano concedes that she currently resides at 450 West 62nd Street in Miami Beach, and resided there at the time of service of process, but asserts lack of personal jurisdiction because she was not at home or even in the state of Florida on or about July 19, 2002, when the certified letter from the marshal arrived. She indicates in her affidavit that she did not authorize anyone to sign a receipt for the letter from the marshal containing copies of the process. Mrs. Castelano further states that the person signing for the certified mail "apparently" was "the minor child of the person house-sitting my home." The defendant Michael J. Castelano avers that he is divorced from Andrea Castelano and that he never lived on West 62nd Street in Miami Beach, but, rather, lives on Collins Avenue in Miami.
"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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process." Practice Book § 10-30. "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). It is a "well-established principle that every presumption favoring jurisdiction should be indulged." Connecticut Light Power Co. v. Costle, 179 Conn. 415, 421 n. 3, 426 A.2d 1324 (1979). "In evaluating a motion to dismiss, the evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor." (Internal quotation marks omitted.) Grondin v. Curi, 262 Conn. 637, 647 n. 12, 817 A.2d 61 (2003).
Where the motion raises facts not apparent on the record, Practice Book § 10-31 permits the parties to file supporting affidavits as to such facts. Villager Pond, Inc. v. Darien, 54 Conn. App. 178, 182, 734 A.2d 1031 (1999). Such affidavits are sufficient to determine the facts where they disclose that no genuine issue as to a material fact exists. Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).
Valid service is necessary to give the court jurisdiction over the person. White-Bowman Plumbing Heating, Inc. v. Biafore, 182 Conn. 14, CT Page 6090 437 A.2d 833 (1980). "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.) Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn. App. 224, 234-35, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000).
"[W]here a particular method of serving process is set forth by statute, that method must be followed." (Internal quotation marks omitted.) Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003). "[T]he burden of proof is on the plaintiff to prove jurisdiction over the person when constructive service is used." Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 54.
In Standard Tallow Corporation v. Jowdy, supra, 190 Conn. 53-54, the court stated: "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. When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the return. There should be no presumption of the truth of the plaintiff's allegation of the additional facts necessary to confer jurisdiction." Id. The court explained that "[w]hen a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction." Id., 54.
The motion to dismiss is denied as to Andrea M. Castelano. Process was sent under the plaintiffs' direction not only to her last known address, but to her actual address. The statute does not require that a defendant be at the address when the mail arrived, or that only a defendant himself, or in this case, herself, sign the return receipt. The statute simply provides that process must be sent to a defendant's last known address. Service on Andrea Castelano clearly complied with General Statutes § 52-59b since the West 62nd address is in fact where she resides and is clearly her last known address.
As to Mr. Castelano, the plaintiffs have not sustained their burden of showing that Mrs. Castelano's address in Miami Beach was also the last known address of Michael J. Castelano. "The requirement that the copy be mailed to his `last-known address' does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is, by those under the ordinary circumstances of life would know it." (Internal quotation marks omitted.) D'Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 171, 455 A.2d 833 (1983). In that case, the husband, considered a "missing person," was still married to his wife. Service on the wife under those circumstances was held to satisfy the statute. In Hartley v. Vitiello, 113 Conn. 74, 154 A. 255 (1931), it was stated that the purpose of the statutory requirement of service is to bring about "a reasonable probability of actual notice of the pendency of the action to the defendant." Id., 81. "The requirement that the copy be mailed to the defendant at his `last-known address' . . . means his actual address; if he has disappeared it means his last address so far as it is reasonably possible to ascertain it. This address the plaintiff must learn at his peril and only if the copy is mailed to it is there a compliance with the statute." Id., 80.
The plaintiffs have not sustained their burden of proving that process directed to Mr. Castelano at his former wife's home was reasonably certain to reach him and to provide him notice of the pendency of these proceedings. The plaintiffs did not file any affidavits or any document demonstrating why they reached the conclusion that the Miami Beach address of his former wife was Mr. Castelano's last known address "so far as it is known . . . by those who under the ordinary circumstances of life would know it." Hartley v. Vitiello, supra, 113 Conn. 80. Presumably, this reference is to persons such as his former wife, relatives, friends, or perhaps the broker on the sale of the subject premises to the plaintiffs, that is, someone who would be apt to know where Mr. Castelano resided. There was, however, no proof offered by the plaintiff of that kind of investigation and, as said in Hartley, a failure to learn this address puts a plaintiff in "peril" of not complying with the statute. Id.
Hence, the "last known address requirement" of General Statutes § 52-59b was not satisfied and the motion to dismiss is granted as to Mr. Castelano.
So Ordered.
Dated at Stamford, Connecticut, this 6th day of May 2003.
William B. Lewis, Judge (TR)