Bailey Hill Lending Trust et al. v. Edward R. Eramian et al. (2010)

MEMORANDUM OF DECISION RE JOEL S. GREENE'S MOTION TO DISMISS (126.00)

I. Background

In this action, the plaintiffs are three entities known as Lending Trusts ¹ which seek payment of a series of notes allegedly made or guaranteed by the defendants:  Edward R. Eramian, Joel S. Greene and Bailey Hill Management, LLC. Eramian and Greene are the two members of Bailey Hill Management, LLC. The defendant Greene moved to dismiss the action against him for lack of personal jurisdiction and insufficiency of process.   The motion was made on May 13, 2010.   After a hearing on the motion on November 15, 2010 this court stated it was denying the motion, and a written opinion would follow.

II. Facts

The plaintiffs made application for a prejudgment remedy to be issued against the defendants on February 18, 2010.   The unsigned complaint underlying the application alleged that (1) plaintiff Bailey Hill Lending Trust had loaned $2.5 million to Bailey Hill Management, a loan guaranteed by Eramian and Greene, (2) Slater Hill Lending Trust loaned $425,000 to Eramian and Greene, and (3) Pine Banks Nominee Lending Trust loaned $500,000 to Bailey Hill Management, a loan guaranteed by Eramian and Greene.   An appearance was filed on behalf of Greene by Attorney Furniss on March 10, 2010.   On March 12, 2010 Attorney Furniss filed a motion to withdraw his appearance for Greene.   That motion stated, “Mr. Greene never requested or gave authorization for the filing of said Appearance, and has now communicated to the undersigned [Furniss] that he wishes it to be withdrawn.”   Dkt. Entry 107.00.   The motion to withdraw was initially rejected by the court for noncompliance with Practice Book § 3-10;  Id., 107.86;  and was eventually granted on April 26, 2010 during the hearing on the PJR application.

The court, having heard testimony, reviewed exhibits and received a stipulation offered by the plaintiffs and the defendants Eramain and Bailey Hill Management that included an admission of default on payment of the notes, granted a PJR of $4,000,000.00 on May 10, 2010.

The plaintiffs made numerous attempts to serve Greene in March and April.   In his motion, Greene contends that each and every attempt prior to the granting of the PJR was insufficient to give the court jurisdiction over his person.   The motion does not contest that Greene is properly subject to the jurisdiction of this court;  indeed, at the hearing on this motion it was conceded that he was now properly a party in this case.   Thus, the issue now before the court is whether Greene was properly served before the entry of the PJR. In response, the plaintiffs made several contentions.   The attempts to serve and the arguments of the parties will be discussed below.

III. Discussion

At the outset, the plaintiffs contend that the motion must be denied as untimely because it was not filed within the thirty-day period from the filing of the appearance by Furniss.   See Practice Book § 10-30.   Plaintiffs point to Pichell v. City of Hartford, 247 Conn. 422 (1999) where the Connecticut Supreme Court described the import of Section 10-30 as follows:  “[t]he rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days [of the filing of an appearance].   Thus, thirty-one days after the filing of an appearance ․ a party is deemed to have submitted to the jurisdiction of the court.”  Id., 433;  (emphasis in original).   This language clearly supports the plaintiffs' opposition.   However, less than a page later the same court states:  “[f]urthermore, when a attorney has the authority to enter an appearance on behalf of a defendant, the filing of a general appearance is not modified merely because it was filed in error,” citing Johnson v. Zoning Board of Appeals, 166 Conn. 102 (1974), and a 1957 Iowa Supreme Court case, both involving the allegedly mistaken filing of a “general” appearance instead of a “special” appearance to contest jurisdiction.   While Connecticut has abandoned the procedure of filing a limited “special” appearance, Pichell 's emphasis on an attorney's “authority” to file an appearance, resonates in this case because of Attorney Furniss' representation that he did not have “authority” to file his appearance for Greene.   This court concludes that Pichell and Practice Book § 10-30, compel the denial of the motion to dismiss because allowing a later assertion of no authority as a defense to personal jurisdiction could potentially create chaos in the early stages of litigation.   Attorneys must take the responsibility of ascertaining their authority before filing an appearance.   Nevertheless, the possible ambiguity in Pichell about authority makes it prudent to review the other arguments in favor of upholding jurisdiction.

The plaintiffs contend that they properly served Greene pursuant to General Statues § 52-57a, which provides that “A person domiciled in or subject to the jurisdiction of the courts of this state ․ may be served with process without the state in the same manner as service within the state ․” This can be accomplished by (1) personal service, i.e. actual delivery to the defendant, or (2) abode service, by leaving a copy of the process at the defendant's usual place of abode.   Dime Bank v. Merrill Lynch, Superior Court, complex litigation docket, judicial district of Stamford-Norwalk at Stamford, X05 CV 09 4017091 (January 15, 2010, Blawie, J.).   According to the electronic court file, the plaintiffs had a Massachusetts Deputy Sheriff serve the process at 29 Bristol Road, Wellsley, Massachusetts on March 3, 2010 (a copy was mailed to that address a day earlier,) and had another Massachusetts Deputy Sheriff served the process at 85 East India Row, 10 B-C, Boston, Massachusetts on March 5, 2009.   Dkt. Entries 102.00, 105.00.

Two questions arise:  (1) was Greene subject to the jurisdiction of the Connecticut courts, and (2) were either of the above Massachusetts addresses Greene's abode?   The first question must be answered affirmatively because Greene's guaranty of the $2.5 million note of Bailey Hill Management specified his consent to the jurisdiction of Connecticut courts and his note payable to Slater Lending Trust specified payment in Hartford, Connecticut.   Ex. 4, ¶ 21;  Ex. 2, April 26, 2010 hearing.   Furthermore, counsel for Greene has conceded that Greene is subject to the jurisdiction of this court, and is only contesting that he was not properly served at the time the PJR hearing took place.

“Abode” for the purposes of Section 52-57a is “the place where the defendant would have knowledge of service of process, and is generally recognized as the place where the defendant is living at the time of service.”   Southern Air v. Clements, Superior Court, judicial district of Stamford-Norwalk at Stamford, CV 09 5010079, (December 24, 2009, Jennings, J.T.R.), quoting Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 40 Conn.Sup. 1, 3 (1984).   The plaintiffs submitted an affidavit of the owner of the 29 Bristol Road Wellsley, Massachusetts residence, which stated Greene and his girlfriend, Donna Corley lived there from June 2007 to September 2009, and that Greene said he planned to move with his girlfriend to Harbor Towers Condominium, 85 East India Row, Units 10 B-C, Boston, Massachusetts.   Affidavit of Maryellen Regis-Civetta, May 28, 2010.   In March 2010 Regis-Civetta mailed a letter to Greene at that Boston address which he received and responded to on March 26, 2010.  Id. The plaintiffs submitted an additional affidavit tending to show that Greene was still living at the Boston address in August 2010.   Affidavit of Steven Ross, August 23, 2010, Dkt. Entry 160.00.

Greene has submitted no evidence as to the whereabout of his abode, and he has the burden of proof once a proper return of service is filed indicating that service was made on his abode.  Golodner v. Women & Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825-26 (2007).   Therefore, the court determines while the evidence produced by the plaintiffs themselves show that while the Wellsley, Massachusetts address was not Greene's abode in March 2010, other evidence shows that the Boston address was his abode and that the March 5, 2010 service of process at the Boston address was sufficient service to attain personal jurisdiction over Greene pursuant to General Statutes § 52-57a.

In addition, after learning of this legal proceeding, Greene e-mailed the following message to Steven Ross, an attorney representing the plaintiff Lending Trusts on March 3, 2010 “John Beck can accept/is authorized to accept service for me ․ I am traveling ․ [giving Beck's address and telephone number in Hartford].   I did not know that you had sued me ․ been a number of years ․ way back in the divorce years ․ since I have been sued Steve.”   At the various hearings in this case, there has been testimony that Attorney John Beck of the law firm of Siegel, O'Connor, O'Donnell & Beck, PC represented one or more of the defendants in structuring the real estate aspects of the loans and mortgages underlying the lawsuit.   Having received the above communication from Greene, the plaintiffs arranged for a marshal to serve Beck. According to the marshal's return, the process and other papers were served on Tracey Cetel, Attorney Beck's Administrative Assistant at his law office on March 11, 2010.   Dkt. Entry 106.00.   On the basis of these facts, the court finds the plaintiffs' argument persuasive that Greene is estopped from denying he was properly served by delivery of the process to Attorney Beck. On similar facts, a Superior Court has denied a motion to dismiss.   Stevenson Lumber Company v. Salcedo, Superior Court, judicial district of Hartford, CV 00 0595374 (July 18, 2000, Hennessey, J.) (court found that defendant had made affirmative representation regarding how to serve him which caused plaintiff to act in reliance on that statement).

Finally, on March 29, 2010 the court (Karazin, JTR) ordered (Dkt. Entry 108.00) that Greene be served with the appropriate PJR papers on or before April 14, 2010 for a PJR hearing scheduled for April 19, 2010 (subsequently adjourned to April 26, 2010).   Greene was served pursuant to General Statutes § 52-59b by service on the Secretary of the State in Hartford and certified mail, return receipt requested addressed to “Joel S. Greene, c/o Donna Corley, 85 East India Row, 10 B-C, Boston, MA 02110.”   Dkt. Entry 111.00.   Based on the facts set forth previously, the uncontradicted evidence supporting the Boston address as Greene's abode also supports a finding that the address was his last known address.  “The requirement that the copy be mailed to the defendant at 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 who under the ordinary circumstances of life would know it.”  Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 393 (2008) [quoting Hartley v. Vitiello, 113 Conn. 74 (1931) ].

The motion to dismiss is denied.   As stated above, the court determines that the motion was untimely filed since it was filed more than thirty days after Greene had appeared in the action.   Furthermore, the court finds (1) that Greene is subject to the jurisdiction of the courts of Connecticut and was properly served at his abode at the Boston address pursuant to General Statutes §§ 52-57a;  (2) that he was properly served pursuant to General Statutes § 52-59b(c) at his last known address in Boston, and (3) that Greene is estopped from contending that service of process on Attorney Beck was authorized.

TAGGART D. ADAMS

SUPERIOR COURT JUDGE

FOOTNOTES

FN1. The plaintiffs are Bailey Hill Lending Trust, Pine Banks Nominee Lending Trust, and Slater Hill Lending Trust..  FN1. The plaintiffs are Bailey Hill Lending Trust, Pine Banks Nominee Lending Trust, and Slater Hill Lending Trust.

Adams, Taggart D., J.