Total Landscaping and Tree Service v. Holmgren Enterprises, Inc. (2011)

RULING ON MOTION TO DISMISS (# 106.00)

On May 3, 2011, the plaintiff, Total Landscaping & Tree Service, LLC, a Connecticut corporation with its principal place of business in Newtown, Connecticut, commenced this action against the defendant, Holmgren Enterprises, Inc. d/b/a Viking Land Clearing, a New York corporation with its principal place of business in Middletown, New York. The complaint seeks damages for injuries the plaintiff allegedly sustained for breach of contract and conversion.   The complaint alleges that the parties entered into a contract on July 28, 2009, for log-clearing, wood-grinding and stump removal services for a project located in New York. The defendant, through counsel, appeared in this matter on June 20, 2011.   The defendant now moves to dismiss the plaintiff's action on the ground that the court lacks personal jurisdiction.   Specifically, the defendant contends that it did not have the necessary contacts with the state of Connecticut to invoke the powers of the applicable long-arm statute, General Statutes § 33–929(f).  In response, the plaintiff argues that this court has jurisdiction over the defendant pursuant to the long-arm statute because the defendant solicited business in this state and made a contract in this state.

“Although the filing of an appearance on behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims, ‘[a]ny defendant wishing to contest the court's jurisdiction, may do so ․ by filing a motion to dismiss within thirty days of the filing of an appearance.’  Practice Book § 10–30 ․” (Citation omitted.)  Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002).  General Statutes § 33–929(f) provides in pertinent part that “Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows:  (1) Out of any contract made in this state or to be performed in this state;  (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state ․”

“If a challenge to the court's personal jurisdiction is raised by a defendant, either by a foreign corporation or by a nonresident individual, the plaintiff must bear the burden of proving the court's jurisdiction.”  Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607, 674 A.2d 426 (1996) (internal quotations marks omitted, internal citations omitted).   The plaintiff appended an affidavit to its objection in which it asserts, in relevant part, the following:  1) the plaintiff prepared the contract, 2) the services rendered pursuant to the terms of the contract were rendered in New York by employees of the plaintiff who traveled to New York, and 3) the defendant, pursuant to the terms of the contract paid wages directly to plaintiff's employees.   The defendant appended an affidavit to its motion in which it asserts, in relevant part, the following:  1) it is a New York corporation, 2) it does not conduct, and has not conducted, business in the State of Connecticut, 3) the contract between the parties was executed by the defendant in the State of New York, and 4) all work was performed within the State of New York. The court finds that neither party disputed the relevant assertions of the other's affidavit.   Neither party requested an evidentiary hearing.   The court finds, based on the affidavits of the parties, the following relevant facts to be determinative:  1) all work was performed in New York, 2) the contract was prepared by the plaintiff in Connecticut, 3) the defendant executed the contract in New York, and 4) all work was performed in the State of New York.

With regard to the contract formation, defendant's act in signing the contract, i.e. accepting the offer set forth by the plaintiff, occurred in the State of New York. “[A] contract is made when and where the last thing is done which is necessary to create an effective agreement.”  Hagar v. Zaidman, 797 F.Sup. 132, 136 (D.Conn.1992).   As to solicitation of business, there is no evidence set forth in either party's affidavit or their stipulations of fact from which the court could conclude that the defendant has repeatedly so solicited business in the State of Connecticut.   For the foregoing reasons the court finds that the plaintiff has failed to prove that the contract between the parties was made in, or was to be performed in, the State of Connecticut or in the alternative, that the defendant has solicited business with the plaintiff and has repeatedly so solicited business in the State of Connecticut.   The defendant's motion to dismiss is GRANTED.

Michael G. Maronich, Judge

Maronich, Michael G., J.