Donald Jencik v. Terry N. Hayes et al. (2011)

MEMORANDUM OF DECISION ON MOTION TO DISMISS (# 107 and # 109)

FACTS

This action arises out of an injury to the plaintiff, Donald Jencik, that occurred when he was hired to perform work on a home owned by two of the defendants, Terry and Dorothy Hayes.   The plaintiff filed a four-count complaint alleging negligence against Terry and Dorothy Hayes, Justin Walker, Glenn Usko and Christopher Lowe. This motion to dismiss pertains only to the claims against Terry and Dorothy Hayes (the defendants).   In count one, which is the only count at issue, the plaintiff alleges a negligence claim against the defendants.   Specifically, the plaintiff alleges the following relevant facts.   Sometime prior to June 22, 2009, the plaintiff was hired by Jeffrey Walker, doing business as Walker Built Homes, to perform work on the defendants' house located at 348 North Granby Road, Granby, Connecticut.   On or about June 22, 2009, the plaintiff was injured, due to the defendants' negligence, when a portion of a structure at the work location collapsed on the plaintiff.

In the return of service attached to the complaint, the state marshal states that he served process on the defendants on June 13, 2011.   He left the process at the defendants' “usual place of abode,” 248 North Granby Road, Granby, CT 06060.   The marshal verified the defendants' address with the town assessor and the neighbor.

On August 8, 2011, the defendants filed identical motions to dismiss (# 107 and # 109) count one on the ground that the court lacks personal jurisdiction over them due to insufficient service of process.   The motions were accompanied by memoranda of law in support, which were also identical, and an affidavit by each of the defendants.   On September 6, 2011, the plaintiff filed an objection to the motion.   The defendant then filed a reply on October 26, 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).  “A defect in process ․ such as an improperly executed writ, implicates personal jurisdiction ․” Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31, 848 A.2d 418 (2004).  “Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost.”  (Internal quotation marks omitted.)  St. Paul's Flax Hill Co-operative v. Johnson, 124 Conn.App. 728, 740, 6 A.3d 1168 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1002 (2011).  “[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).  “[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, 288 Conn. 568, 576, 953 A.2d 868 (2008).

Since the defendants' motions and memoranda of law in support are identical, the court will discuss them as one.   The defendants argue that they are entitled to dismissal of count one of the plaintiff's complaint on the ground that the plaintiff failed to properly serve the defendant.   The defendants assert that they were not properly served at their usual place of abode because the home in Granby, Connecticut “was a vacation home used ․ for no more than three weeks at a time.”   The plaintiff counters that he properly served process on the defendants at their usual place of abode.

General Statutes § 52–57 governs service of process in civil actions and provides that:  “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 statute's chief purpose 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.

“As a general matter, whether a particular place constitutes a usual place of abode gives rise to a question of fact.”  Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 577.  “A usual place of abode has been defined as a place of residence within the state ․ It is well established, however, that [o]ne may have two or more places of residence within a[s]tate, or in two or more [s]tates, and each may be a usual place of abode ․ Service of process will be valid if made in either of the usual places of abode.

“Residence does not necessarily import domicil.   Nor does usual place of abode import domicil ․ There is no relationship between them, though that may be concurrent.   A person may have two or more places of abode while he can have only one domicil.”  (Internal quotation marks omitted.)  Id. “Therefore, the duration of past or contemplated future occupation is a significant factor.”   Chicago Title Ins. v. Saturno, Superior Court, judicial district of Hartford, Docket No. CV 06 5002991 (July 19, 2007, Bentivegna, J.).  “Further, part-time residency is sufficient for service of process.”  Id., 577–78.   In cases where the defendant was “served personally or through abode service ․ the defendant bears the burden of disproving personal jurisdiction.”  Golodner v. Women's Center of Southeastern Connecticut, 281 Conn. 819, 825, 917 A.2d 959 (2007).  “Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her date in court.”  (Internal quotation marks omitted.)  Mulcahy v. Mossa, 89 Conn.App. 115, 129, 872 A.2d 453, cert. denied, 274 Conn. 917, 879 A.2d 894 (2005).

The defendants contend that their usual place of abode is in California and not in Connecticut, but this court disagrees.   In the present action, the alleged negligence that harmed the plaintiff occurred at the property in Connecticut where service was left for the defendants, because the plaintiff was working on an extensive renovation of the defendants' home.   Additionally, the defendants state that they used their Connecticut home “for no more than three weeks at a time,” but fail to mention how many times a year they visit the home.   The defendants frequented the home for up to three weeks at a time, and, therefore, the court finds this to be one of the defendants' usual places of abode.   The defendants do not contest actual notice of these proceedings.   It is possible for a defendant to have more than one usual place of abode, and, in the present action, the defendants have a usual place of abode in California and Connecticut.   For the foregoing reasons, the court denies the motions to dismiss.

Woods, J.

Woods, Glenn A., J.