Paul Alfano v. AIDS (2011)

MEMORANDUM OF DECISION

FACTS

This premises liability action arises out of injuries alleged to have occurred due to a slip and fall by the plaintiff, Paul Alfano, at the property of the defendant, AIDS Project New Haven.   The plaintiff filed this action with the court on March 15, 2006.   As attested to by a marshal's return accompanying the summons and complaint, process was served upon the usual place of abode for the defendant's registered agent at 45 Linden Avenue in Branford, Connecticut on February 17, 2006.   Over four years later, on November 9, 2010, notice was sent by the court regarding pending dismissal based upon lack of prosecution.   The plaintiff thereafter on January 10, 2011 filed a motion for default for failure of the defendant to file an appearance.   On January 11, 2011, the defendant filed an appearance with the court.   The defendant subsequently filed the instant motion to dismiss, with accompanying memorandum of law in support, on February 9, 2011.

The defendant moves to dismiss the action on the ground that the court lacks personal jurisdiction over the defendant due to insufficient service of process.   Specifically, the defendant claims that its registered agent for service was not duly served at her usual place of abode pursuant to General Statutes § 33–1053(a) ¹ , as she had moved from 45 Linden Avenue nearly ten years prior to the plaintiff's service of process.   On April 29, 2011, the plaintiff filed an objection to the motion to dismiss.   The court heard oral argument from the parties on the motion to dismiss on May 2, 2011.

DISCUSSION

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)   Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).   Specifically, pursuant to Practice Book § 10–31(a), “[t]he 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.   This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.”  “A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.”   (Internal quotation marks omitted.)  Henriquez v. Allegre, 68 Conn.App. 238, 242, 789 A.2d 1142 (2002).  “[A]n action commenced by ․ improper service must be dismissed.”  (Internal quotation marks omitted.)  Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008).

The defendant argues that service of process was legally insufficient as it did not meet statutory requirements, therefore failing to confer personal jurisdiction upon the court.   Specifically, the defendant claims that “there was no in hand or abode service on the defendant's agent for service as required by [General Statutes] § 33–1053(a) and the plaintiff did not even attempt service in compliance with [General Statutes] § 52–57(c).” ²  In support, the defendant submits the affidavit of Janet Murphy, the registered agent for the defendant at the time of service of process;  as well as the affidavit of Christopher Cole, executive director for AIDS Project New Haven.

The plaintiff counters that it did attempt to serve process pursuant to § 52–57(c), but being unable to do so because there was no person in charge at the place of business to accept service, effectuated service pursuant to § 33–1053(a) at the address listed for the registered agent on the corporation annual report on file with the secretary of state.   The plaintiff argues that the defendant should now be estopped from claiming that the service of process was insufficient due to improperly serving the previous abode of the registered agent because “the corporation and the registered agent have an obligation to provide accurate information to the secretary of state, upon which information the marshal is entitled to rely” and thus, the “corporation should now be stopped from claiming that proper service was not made.”   In support, the plaintiff attaches the affidavit of Andrew Esposito, the state marshal who was tasked with serving the process;  and various print-outs from the secretary of state website showing the listing of the address of the registered agent for the defendant at the time of filing of the suit as 45 Linden Avenue.

Thus, the issue as presented in the instant motion to dismiss is whether the plaintiff properly effectuated abode service upon the defendant's registered agent pursuant to § 33–1053(a) so as to confer personal jurisdiction upon the court;  and if not, whether the defendant should nonetheless be estopped from claiming that service of process was insufficient due to it maintaining an incorrect address for its registered agent in its annual filings with the secretary of the state.   The court finds that the defendant has met its burden to show insufficient service of process as it was not served as prescribed by § 33–1053(a), but that the defendant is nonetheless equitably estopped from disdaining sufficient service of process as it induced the plaintiff to believe its registered agent was to be properly served at a misleading address, and the plaintiff, after exercising due diligence, detrimentally relied on that inducement.

I

Sufficiency of Service of Process

The standard regarding the sufficiency of service of process is well established in Connecticut.  “[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 ․ The jurisdiction that is found lacking ․ is jurisdiction over the person ․” (Internal quotation marks omitted.)   Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008).   The plaintiff here attempted to effect service pursuant to § 33–1053(a), which provides that process can properly be served upon a corporation by leaving it at the “usual place of abode in this state” of the corporation's registered agent.  “A usual place of abode has been defined as a place of residence within the state.”  Id., 577.

“The [marshal's] return is prima facie evidence of the facts stated therein.”  (Internal quotation marks omitted.)  Bove v. Bove, 93 Conn.App. 76, 82, 888 A.2d 123, cert. denied, 277 Conn. 919, 895 A.2d 788 (2006).   “When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction.”  (Internal quotation marks omitted.)  Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607 n.9, 674 A.2d 426 (1996).  “[A] defendant who contests the facts stated in the return bears the initial burden of disproving personal jurisdiction.”   Jimenez v. DeRosa, supra, 109 Conn.App. 341.

The plaintiff at the time of the filing of the summons and complaint with the court, attached a marshal's return stating that marshal Esposito served process upon the defendant by “leaving [writ, summons and complaint] at the usual place of abode of their authorized agent for service Janet Murphy at 45 Linden Avenue, Branford, CT ․” The defendant contests the facts of the marshal's return through the submitted affidavit of Janet Murphy, the defendant's registered agent at the time of purported service.   Murphy attests that on the date of service of the summons and complaint, she did not reside at 45 Linden Avenue, and had moved from that location nearly ten years prior.   The plaintiff, in its opposition, provides no evidence to contradict the facts set forth by Murphy, or dispute in any other way that 45 Linden Avenue was not in fact the usual place of abode of the defendant's registered agent at the time of service.   Instead, the plaintiff simply argues that because the defendant listed the address erroneously, the defendant should be estopped from now claiming insufficiency of service of process.³  Thus, there is no factual dispute that 45 Linden Avenue was not the usual place of abode of the defendant's agent at the time of service.   See Lampasona v. Jacobs, 7 Conn.App. 639, 642, 509 A.2d 1089 (1986) (“affidavits are insufficient to determine the facts unless ․ they disclose that no genuine issue as to a material fact exists”).   Accordingly, the defendant has met its burden to provide evidence demonstrating that process was not served upon the usual place of abode for its registered agent, overcoming the prima facie evidence of the facts stated in the marshal's return.   Consequently, the plaintiff's attempted abode service was insufficient to effectuate service of process as it did not comport with the statutory requirements of § 33–1053(a).  Hibner v. Bruening, 78 Conn.App. 456, 463, 828 A.2d 150 (2003) (“[a]bode 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”).

II

Equitable Estoppel

Despite service of process being statutorily insufficient, the plaintiff, relying upon the doctrine of equitable estoppel, argues that the action should nonetheless not be dismissed.   Specifically, the plaintiff argues that the defendant should be estopped from challenging service of process, and therefore the court's personal jurisdiction, because the plaintiff detrimentally relied on the defendant's erroneous listing of 45 Linden Avenue in its records with the secretary of state as being the address for its registered agent.   The plaintiff claims estoppel should apply as it has submitted sufficient evidence demonstrating “that the corporation, though ostensibly keeping current with the secretary of state, was, in fact, perpetuating false information when it knew or should have known that persons, entities or officials would rely on the information so recorded.”

“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. 222, 236, 842 A.2d 1089 (2004).

“There are two essential elements to an 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 some act to his injury which he otherwise would not have done.   Estoppel rests on the misleading conduct of one party to the prejudice of the other.”  (Internal quotation marks omitted.)  Id. “The party claiming estoppel ․ has the burden of proof.”  (Internal quotation marks omitted.)  O'Connor v. Waterbury, 286 Conn. 732, 758, 945 A.2d 936 (2008).  “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.)  Celentano v. Oaks Condominium Ass'n., 265 Conn. 579, 615, 830 A.2d 164 (2003).

Connecticut courts have previously applied the doctrine of equitable estoppel to preclude a defendant from asserting insufficient service of process;  namely in cases where the plaintiff has shown that the defendant misrepresented the truth, and the plaintiff, despite exercising due diligence to know the truth and attempting alternate means of service, relied upon that misrepresentation to its detriment.   See, e.g., Row–Carr Carpentry v. Yale Mall Partnership, Superior Court, judicial district of New Haven, Docket No. CV 08 5024608 (May 15, 2009, Abrams, J.) [47 Conn. L. Rptr. 794] (denying motion to dismiss based upon application of equitable estoppel as plaintiff's reliance upon filed land records to ascertain status of partnership for service of process purposes was “reasonable and constituted due diligence” in serving a person characterized as a “managing partner” in those land records);  Stevenson Lumber Co. Suffield, Inc. v. Salcedo, Superior Court, judicial district of Hartford, Docket No. CV 00 0595374 (July 18, 2000, Hennessy, J.) (27 Conn. L. Rptr. 568) (denying motion to dismiss holding that defendant was estopped from claiming insufficient service of process because it evaded process by providing misleading address for abode service).

In the present case, the undisputed evidence shows that the defendant acted to list the address of its registered agent with the secretary of state as 45 Linden Avenue, even though, according to its own submitted affidavit, its registered agent hadn't lived at that address for nearly a decade.   By listing this erroneous address, the defendant induced the plaintiff into believing the existence of the fact of the agent's address and to act on that belief, to its detriment, in serving process upon the purported usual place of abode of its agent for service.   Further, the plaintiff has submitted evidence of due diligence through the affidavit of state marshal Esposito, attesting that he attempted to serve the defendant by alternate means, namely by service of process at its place of business pursuant to § 52–57(c), but that there was no person in charge to accept service at the time.   While the defendant counters in its memorandum of law that “no attempt was made to serve an officer or other representative of the corporation in accordance with C.G.S. § 52–57(c),” it has provided no evidence, through an affidavit or otherwise, to put the factual issue of the marshal's attempted service pursuant to § 52–57(c) into dispute.⁴  Double G.G. Leasing, LLC v. Underwriters at Lloyd's, London, 116 Conn.App. 417, 430 n.6, 978 A.2d 83 (2009) (“it is axiomatic that an attorney's argument is not evidence”).

The court finds that the undisputed evidence shows that the plaintiff attempted service of process by alternate means pursuant to § 52–57(c), but failing to do so, searched the records of the secretary of state and attempted to effectuate service of process upon the defendant's listed registered agent pursuant to § 33–1053(a).   The plaintiff's actions in this regard were reasonable and constituted due diligence under the circumstances.   The defendant, in listing its registered agent's address inaccurately with the secretary of state, acted to induce the plaintiff into believing the existence of the fact of the address of its registered agent as being 45 Linden Avenue, and the plaintiff, relying upon such misrepresentation, served process at that abode to its own detriment.   The plaintiff has thus met its burden to show that the application of the doctrine of equitable estoppel is appropriately applied in the present case so as to prevent the defendant from contesting the court's jurisdiction based on insufficient service, as allowing its assertion would enable the defendant to do a wrong.

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss is denied.

Woods, J.

FOOTNOTES

FN1. General Statutes § 33–1053(a) provides:  “A corporation's registered agent is the corporation's agent for service of process, notice or demand required or permitted by law to be served on the corporation.   Service may be effected by any proper officer or other person lawfully empowered to make service by leaving a true and attested copy of the process, notice or demand with such agent or, in the case of an agent who is a natural person, by leaving it at such agent's usual place of abode in this state.”.  FN1. General Statutes § 33–1053(a) provides:  “A corporation's registered agent is the corporation's agent for service of process, notice or demand required or permitted by law to be served on the corporation.   Service may be effected by any proper officer or other person lawfully empowered to make service by leaving a true and attested copy of the process, notice or demand with such agent or, in the case of an agent who is a natural person, by leaving it at such agent's usual place of abode in this state.”

FN2. General Statutes § 52–57(c) provides, in pertinent part:  “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.”.  FN2. General Statutes § 52–57(c) provides, in pertinent part:  “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.”

FN3. As a further example, the plaintiff in a section entitled “facts in controversy” in its memorandum in opposition, lists as a fact in controversy “whether [Murphy] notified the corporation of the change of her address” but does not include as a fact in controversy whether 45 Linden Avenue was actually the agent's usual place of abode at the time of service..  FN3. As a further example, the plaintiff in a section entitled “facts in controversy” in its memorandum in opposition, lists as a fact in controversy “whether [Murphy] notified the corporation of the change of her address” but does not include as a fact in controversy whether 45 Linden Avenue was actually the agent's usual place of abode at the time of service.

FN4. While the affidavit of Cole states that the defendant “was never served with process in this matter, nor has it received process by mail, hand or other delivery means,” this attestation does not put into dispute the fact as to whether service was ever attempted pursuant to 52–57(c)..  FN4. While the affidavit of Cole states that the defendant “was never served with process in this matter, nor has it received process by mail, hand or other delivery means,” this attestation does not put into dispute the fact as to whether service was ever attempted pursuant to 52–57(c).

Woods, Glenn A., J.