Ketcha Savain v. Joyce Bellamy (2011)

MEMORANDUM OF DECISION IN RE MOTION TO DISMISS

This action concerns injuries allegedly sustained by the plaintiff when part of a bathroom ceiling collapsed on her in an apartment that she leased from the defendant at 32 Ivy Street, New Haven, Connecticut.   On July 30, 2011, the plaintiff attempted to serve process upon the defendant, via abode service under General Statutes § 52–57(a),¹ by leaving a copy of the writ, summons and complaint at her usual place of abode.   Specifically, the marshal's return indicates that service was made on that date “by leaving at the usual place of abode of said defendant, Joyce Bellamy, 432 Norton Parkway, New Haven, a true and attested copy [of the writ, summons and complaint].”

On September 27, 2011, the defendant filed an appearance and a motion to dismiss.   In her motion, the defendant contends that the court lacks jurisdiction over her because of improper service of process.   The defendant alleges in this regard that the address at which service was attempted—432 Norton Parkway, New Haven—is not now, and for more than four years has not been, her usual place of abode.   In support of her motion, the defendant filed a sworn affidavit in which she attests that she “previously resided at 432 Norton Parkway, New Haven, CT but ha[s] not resided there since July 2007,” and that she has had no interest in the property at that address “since October 2009 when the property was foreclosed and title vested in the mortgagee, U.S. Bank N.A. Trustee.”   Defendant's Memorandum of Law, Affidavit of Joyce A. Bellamy, ¶¶ 6 and 7. The defendant's affidavit further provides that her “usual place of abode is 36 Ford Street Hamden, Connecticut,” that she has resided at that address since July 2007, and that her Connecticut driver's license, which was issued on August 5, 2007, was issued with the 36 Ford Street address.   Defendant's Memorandum of Law, Affidavit of Joyce A. Bellamy, ¶¶ 4 and 5.

The defendant's motion appeared on the court's short calendar docket on November 21, 2011, as an arguable matter.   The plaintiff neither appeared for that argument, nor filed any pleading or affidavits in response to the defendant's motion.

DISCUSSION

Practice Book § 10–31(a) provides in relevant part that “[t]he motion to dismiss shall be used to assert ․ lack of jurisdiction over the person ․” “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ․” (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

“Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.”  (Internal quotation marks omitted.)   Bridgeport v. Debek, 210 Conn. 175, 179–80, 554 A.2d 728 (1989).  “One who is not served with process does not have the status of a party to the proceeding ․ A court has no jurisdiction over persons who have not been made parties to the action before it.”  (Internal quotation marks omitted.)   Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003).   As a result, “an action commenced by improper service must be dismissed.”  (Internal quotation marks omitted.)  Jiminez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008).

“When 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.”  (Citations omitted;  internal quotation marks omitted.)   Commissioner of Transportation v. Khan, 262 Conn. 257, 272, 811 A.2d 693 (2003).  “A proper officer serving process must comply with the provisions of [General Statutes] § 52–57(a), which require that process be served by leaving it with the defendant, or at his usual place of abode ․ Abode 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 ․ For service pursuant to § 52–57(a), the ‘usual place of abode’ presumptively is the defendant's home at the time when service is made ․ Whether a particular locale is the usual place of abode is a question of fact.   When, however, the defendant is a resident of Connecticut who claims that no valid abode service has been made ․ that would give the court jurisdiction over [the defendant's] person, the defendant bears the burden of disproving personal jurisdiction ․ When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise.”  (Citations omitted;  internal quotation marks omitted.)  Jiminez v. DeRosa, supra, 109 Conn.App. 332, 338–39.

In the present case, the plaintiff's return of service states that the marshal left service of process for the defendant at 432 Norton Parkway in New Haven.   As noted, however, the defendant attests in her affidavit that she has not lived at that address since July 2007—over four years ago—and that any and all rights she once had in that property were foreclosed in October 2009.²  The plaintiff, on the other hand, has offered no affirmative evidence whatsoever showing, or even suggesting, that 432 Norton Parkway was, in fact, the defendant's usual place of abode at or about July 30, 2011 when service of process was attempted at that address.   To the contrary, by choosing not to respond to the defendant's motion to dismiss, the plaintiff has failed to dispute or bring into question any of the defendant's sworn representations.   “[Where] affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings.”  Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).

Under these circumstances, the defendant has proven to the court's satisfaction that 432 Norton Parkway was not her usual place of abode on July 30, 2011, and that service made on that date at that address was improper.   In this regard, the court must be mindful that “[p]roper service of process is not some mere technicality.”  Hibner v. Bruening, 78 Conn.App. 456, 458, 828 A.2d 150 (2003).   Rather, it is a requirement that “gives a court power to render a judgment ․” Id. Therefore, because the plaintiff attempted to serve the defendant at an address that was not her usual place of abode, the service violated § 52–57(a) and deprives the court of personal jurisdiction over the defendant.   Accordingly, the defendant's motion to dismiss is hereby granted.

THE COURT

Gold, J.

FOOTNOTES

FN1. Section 52–57(a) 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.”.  FN1. Section 52–57(a) 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.”

FN2. In fact, the defendant contends that she only “became aware of this action by accident on September 11, 2011 while searching the State of Connecticut Judicial Website for another matter.”   Defendant's Memorandum of Law, p. 1..  FN2. In fact, the defendant contends that she only “became aware of this action by accident on September 11, 2011 while searching the State of Connecticut Judicial Website for another matter.”   Defendant's Memorandum of Law, p. 1.

Gold, David P., J.