Frances Smith v. Rachel Kirk (2010)

MEMORANDUM OF DECISION

The plaintiff, Frances Smith, brought this action seeking to recover damages for unpaid rent and use and occupancy of premises located at 575A Arapaho Lane in Stratford from her former tenant, Rachel Kirk. The return of service by State Marshal, George Dirgo, states that service was made on the defendant by leaving a copy of the Summons and Complaint at her usual place of abode, 575A Arapaho Lane in Stratford, on December 17, 2009.

On February 3, 2010, the clerk entered an order granting the plaintiff's motion for default for failure to appear.   Presently before the court is the plaintiff's motion for judgment on default dated June 14, 2010.   Included with that motion were a military affidavit and an affidavit of debt.

The military affidavit is signed by the plaintiff's counsel and states that the defendant is not in the U.S. Military because the defendant is 102 years old.   The affidavit of debt is also signed by the plaintiff's counsel and states the basis of which the defendant is alleged indebted to the plaintiff.   Included in the claim are $1,237.50 in attorneys fees.   The affidavit does not set forth any basis for the claim of attorneys fees.   In calculating the plaintiff's damages, the affidavit states:  “The defendant failed to make the payments due on the lease from June 1, 2009 until November 30, 2009, the approximate date she vacated the premises ․” ¹

The court rejects both affidavits filed by plaintiff's counsel as being inconsistent with Connecticut practice and contrary to Rule 3.7 of the Rules of Professional Conduct, (Lawyer as Witness) and accordingly denies the motion for judgment on default.

The court further notes that, based upon counsel's affidavit, it appears likely that the abode service of process made on the defendant on December 17, 2009 did not result in the court having personal jurisdiction over the defendant.   If the defendant vacated the premises on or about November 30, 2009, as stated in counsel's affidavit, then 575A Arapaho Lane was no longer the defendant's abode on the date of the state marshal's service.   It appears to the court that the plaintiff's counsel now has an ethical obligation to either withdraw the pending action or to place on the record before this court the basis on which personal jurisdiction over the defendant is being asserted.

David R. Tobin, J.

FOOTNOTES

FN1. The affidavit defines “premises” as “575A Arapaho Lane, Stratford, Connecticut 06614.”.  FN1. The affidavit defines “premises” as “575A Arapaho Lane, Stratford, Connecticut 06614.”

Tobin, David R., J.