Franco Lacerva v. Tina Liang, D.M.D. et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 101

The present action arises out of alleged medical negligence stemming from a dental procedure.   On January 3, 2011, the plaintiff, Franco LaCerva, filed a one-count complaint against the defendants, Tina Dr. Liang, D.M.D. and Dental Group of Meriden–Wallingford, PC.

On January 18, 2011, Dr. Liang, individually, filed a motion to dismiss and accompanying memorandum of law claiming this court lacks personal jurisdiction over her as a result of improper service.   In the return of service attached to the complaint, state marshal Frank Sandillo states that he served process on Dr. Liang by leaving process with Karen Kowalski, an office manager, authorized to accept service for Dr. Liang, at 298 Broad Street in Meriden.   On February 18, 2011, the plaintiff filed an objection to Dr. Liang's motion to dismiss and accompanying memorandum of law along with the affidavit of marshal Sandillo.   On March 17, 2011, Dr. Liang filed a reply to the plaintiff's objection along with her own affidavit.   The matter was heard at short calendar on May 16, 2011.

DISCUSSION

“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 ․ 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).  “The grounds which may be asserted in [a motion to dismiss] are:  (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.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).  “[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 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).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)   Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).  “In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 651–52.

After hearing argument by counsel, and after reviewing the affidavits submitted in support of the motions before the court, this court finds that Dr. Liang was not properly served pursuant to General Statutes § 52–57(a) with the writ, summons and complaint either by in-hand or abode service.   The court finds credible the fact that Dr. Liang only learned of this lawsuit through Attorney Beverly Knapp, counsel for the co-defendant.   Accordingly, Dr. Liang has never formally been put on notice of the pending lawsuit against her.

The Supreme Court has stated that “[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.”  (Internal quotation marks omitted.)  Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 576.   Service of process over individual defendants in a civil action is governed by General Statutes § 52–57(a), which provides:  “Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.”   The Appellate Court has stated that “[t]he clear impact of § 52–57(a) is that one of its two alternatives, personal or abode service, must be followed ․” Hibner v. Bruening, 78 Conn.App. 456, 460, 828 A.2d 150 (2003).   Furthermore, “[w]hen a person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate.”  Nelson v. Stop & Shop Cos., 25 Conn.App. 637, 641, 566 A.2d 4, cert. denied, 220 Conn. 924, 598 A.2d 364 (1991).

Nevertheless, the Supreme Court has stated that the “chief purpose [of § 52–57(a) ] is to ensure actual notice to the defendant that the action is pending.”  (Internal quotation marks omitted.)  Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 576.   In this regard, “service must be effectuated in a way reasonably calculated to provide actual notice.”  Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 857, 911 A.2d 852 (2006), cert. granted, 282 Conn. 901, 918 A.2d 888 (2007).  “When notice is given to a defendant of the commencement of a legal action, [however] there must also be substantial compliance with the service of process statutes.”  Hibner v. Bruening, supra, 78 Conn.App. 461.

There is no specific appellate authority as to whether service on the office manager of a medical group is sufficient to constitute service on a defendant member, or former member, of that medical group.   A number of Superior Court decisions have considered similar factual scenarios and determined that such service did not comport with statutory requirements.   See Mitchell v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 10 6015881 (May 13, 2011, B.Fischer, J.) [51 Conn. L. Rptr. 896] (service upon vice president and general counsel for hospital where defendant worked);  Dorry v. New Milford Hospital, Superior Court, judicial district of Waterbury, Docket No. X10 CV 09 6004823 (April 29, 2011, Dubay, J.) (service upon risk manager, practice administrator and office managers where defendants worked);  and Drwiega v. Aferzon, Superior Court, judicial district of New Britain, Docket No. CV 03 0521686 (December 1, 2003, Robinson, J.) (service upon office manager of doctor's office).   At least one Superior Court decision has determined that service was sufficient when “the marshal went to the doctor's office and gave appropriate process to the person in charge who told him that she was authorized to accept service.”   See Washington v. Hartford Hospital, Superior Court, judicial district of Hartford, Docket No. CV 03 0824647 (September 9, 2003, Booth, J.) (35 Conn. L. Rptr. 442, 443).   In Washington, however, “[n]either the office manager nor the doctor [had] denied that the statement was made or that the authority existed.”  Id.

In the return of service in the present case, Sandillo attests that he served process on Dr. Liang by leaving process with Kowalski.   There is no dispute that such service was not in the hand of Dr. Liang or at her usual place of abode.   While Sandillo attested in his affidavit that, at the time of service, Karen Kowalski informed him that she was authorized to accept service for Dr. Liang, the court has before it Dr. Liang's affidavit attesting that she did not authorize Kowalski to accept service of process on her behalf.   Therefore, whether or not Dr. Liang had actual notice of this action, that service did not substantially comply with General Statute § 52–57(a).  “[R]eaching the opposite conclusion would require this court to find that service of process upon a purported representative is sufficient to confer personal jurisdiction over an individual defendant;  this position is unsupported by the text of [General Statute] § 52–57 and equally untenable under current case law.”   Dorry v. New Milford Hospital, supra, Superior Court, Docket No. X10 CV 09 6004823;  see also Nelson v. Stop & Shop Cos., supra, 25 Conn.App. 641 (“When a person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate”).

The plaintiff argues, however, that he was wrongfully deprived of an opportunity to have Sandillo serve Dr. Liang in another manner at a later time because Kowalski represented to Sandillo that she was an authorized agent for service on behalf of Dr. Liang.¹  This argument appears to consider the doctrine of equitable estoppel.

“[Courts, applying equitable principles, have laid down the doctrine of equitable estoppel ․” (Internal quotation marks omitted.)  Green v. Connecticut Disposal Service, Inc., 62 Conn.App. 83, 92, 771 A.2d 137, cert. denied, 256 Conn. 912, 772 A.2d 1124 (2001).  “There are two essential elements to an estoppel—the party must do or say something that 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.”  (Internal quotation marks omitted.)  O'Connor v. Waterbury, 286 Conn. 732, 757, 945 A.2d 936 (2008).  “The party claiming estoppel ․ has the burden of proof.”  (Internal quotation marks omitted.)   Id., 758.

In Mitchell v. Yale New Haven Hospital, supra, Superior Court, Docket No. CV 10 6015881, the court rejected the plaintiff's equitable estoppel claim, which was based on the fact that the hospital where the defendant worked indicated that the defendant could be served through service on the hospital.   Relying on the test outlined above, the court concluded that “[there [was] no evidence indicating that [the defendant] made such a representation directly to the plaintiff or that she conveyed the authority to [the hospital] to do so on her behalf.”  Id.

In this case, Sandillo attested in his affidavit that, at the time of service, Kowalski informed him that she was authorized to accept service for Dr. Liang.   In her affidavit, Dr. Liang attested that she did not authorize Kowalski to accept service of process on her behalf and, further, that she has not been employed by Dental Group, nor has she returned to the office, since June 26, 2010.   Sandillo attested, however, that Kowalski did not mention that Dr. Liang was a former employee and that if he had any belief that Kowalski was not an acceptable agent for service on Dr. Liang, he would have served Dr. Liang in an alternate method.

Although there is evidence that Kowalski informed Sandillo that she was authorized to accept service for Dr. Liang, there is no evidence that Dr. Liang herself made such a representation to the plaintiff or Sandillo, or that she conveyed the authority to Kowalski to do so on her behalf.   To the contrary, Dr. Liang attested that she did not authorize Kowalski to accept service on her behalf and, further, that at the time of the attempted service, she was a former employee of Dental Group.   The plaintiff has not disputed these claims.   Therefore, even more so than Mitchell, the doctrine of equitable estoppel is inapplicable because of the undisputed fact that Dr. Liang was not even a member of Dental Group at the time of the attempted service.

For the foregoing reasons, the motion to dismiss the plaintiff's complaint as against the defendant, Dr. Liang, is granted.

BY THE COURT

Denise D. Markle, Judge

FOOTNOTES

FN1. It bears noting that the plaintiff has instituted another action against the defendants founded upon a similar one-count complaint.   See LaCerva v. Dr. Liang, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 11 6003102.   The return of process in that action indicates that Sandillo left process at Dr. Liang's usual place of abode..  FN1. It bears noting that the plaintiff has instituted another action against the defendants founded upon a similar one-count complaint.   See LaCerva v. Dr. Liang, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 11 6003102.   The return of process in that action indicates that Sandillo left process at Dr. Liang's usual place of abode.

Markle, Denise D., J.