Webster Bank, National Association v. Mitchell Drive Associates (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

On February 16, 2010, the plaintiff, Webster Bank, National Association (“Webster”), filed a complaint ¹ which seeks to foreclose upon a mortgage and obtain a deficiency judgment against the defendants, Mitchell Drive Associates, LLC, Steven T. Pazdar and Thomas M. Trahan.   A default for failure to appear was granted as to all defendants on March 2, 2010.   On October 4, 2010, the plaintiff's motion for judgment of strict foreclosure was granted.   On November 17, 2010, the plaintiff moved for a deficiency judgment against Pazdar and Trahan.   Attorney Patrick W. Boatman filed an appearance on behalf of Pazdar on December 2, 2010.²  Thereafter, on December 30, 2010, Pazdar filed a motion to dismiss on the ground that the court lacks personal jurisdiction over him due to insufficiency of service of process.   An evidentiary hearing was held on November 7, 2011, and post-hearing briefs have been filed.

“Practice Book § 10–30 provides in relevant part that ‘[a]ny defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance ․’ Practice Book § 10–31(a) provides in relevant part that ‘[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.’  “ Maltas v. Maltas, 298 Conn. 354, 360, 2 A.3d 902 (2010).

“[A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts ․ If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken.”  (Internal quotation marks omitted.)  May v. Coffey, 291 Conn. 106, 108–09, 967 A.2d 495 (2009).

“[T]he Superior Court ․ may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction ․ [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 ․ 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 such improper service must be dismissed.”  (Citation omitted;  internal quotation marks omitted.)  Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008).

Both Pazdar and state marshal Charles J. Fisher, Jr. testified at the hearing held on the motion to dismiss.   Consistent with his return of service, Fisher testified that on January 28, 2010, after first attempting service of Pazdar at his business location, he made abode service at 2077 Main Street, Glastonbury, a residence where he subsequently served Pazdar in hand with a subpoena in connection with another matter.   Pazdar defendant argues that he did not live at that address on January 28, 2010;  it was not his usual place of abode, and therefore, service was defective.³  The plaintiff counters that the defendant has not met his burden of demonstrating that service was defective.

“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 ․ 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.)  Jimenez v. DeRosa, supra, 109 Conn.App. 338–39.

“Neither the Supreme Court nor the Appellate Court have defined ‘usual place of abode.’  ․ However, Superior Court decisions have discussed the phrase.   For example ․ it was stated that a person's usual place of abode is the place where the person is living at the time of service.   A usual abode has also been referred to as the place where the defendant would most likely have knowledge of service of process ․ It should be noted that a usual abode need not be a person's domicile ․ Rather, an abode is similar to a residence in that a person can have more than one ․ Whether service was made at a defendant's usual place of abode is a question of fact for the court to decide based on the evidence.”  (Citations omitted;  internal quotation marks omitted.)   Altemos v. Professional Services Group, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 08 5014532 (July 21, 2008, Arnold, J.) (46 Conn. L. Rptr. 43, 44).

“Factors which are considered in determining whether a place is a defendant's usual place of abode include the retention of a room and storage of possessions there, the intention to return, the use of that address on official forms such as drivers' licenses and voters' registrations, the use of a telephone listing at that location, a failure to provide the post office with a forwarding address, the receipt of actual notice, and the defendant's ability to present at least some evidence that his or her abode is elsewhere.   Am.Jur.2d, Process, § 195.”   Lovely v. Tremblay, Superior Court, judicial district of New London at Norwich, Docket No. FA 04 4102001 (September 8, 2008, Boland, J.).

In the present case, abode service was attempted at 2077 Main Street, Glastonbury on January 28, 2010.   Pazdar testified that he previously lived at 2077 Main Street with his wife and children, but ceased residing at that address in September 2009, after separating from his wife.   He testified that his wife and children still reside at 2077 Main Street, and that he has no access to that home without his wife's permission.   Pazdar also testified that, at the time of the attempted service, he was temporarily living at 1924 Main Street, Glastonbury.   He stated that he had no intention of returning to 2077 Main Street, and, in support of that statement, he presented a receipt for a bed he purchased and had delivered to 1924 Main Street on September 26, 2009.   Pazdar testified that he later moved to another residence on 64 Addison Road, Glastonbury, and subsequently moved to 78 Drumlin Road, Glastonbury, and, as of the time of his testimony, resided at 31 Lewis Street, Hartford.

On the other hand, in addition to the foregoing testimony, there was also evidence that Pazdar continued to use 2077 Main Street as his address for some purposes after September 2009, the time he claims to have moved out.   His estranged wife and his children still reside at 2077 Main Street, and he regularly visits his children there.   Marshal Fisher testified that on March 10, 2010, he served Pazdar in hand at 2077 Main Street on a separate matter.   On that occasion, Fisher related that Pazdar informed him that he would be moving from 2077 Main Street in the future.   Pazdar testified that he was visiting his children on March 10, 2010, and had already moved by that date.   However, Pazdar is still married and filed a joint income tax return with his wife for 2010 which recites 2077 Main Street as their joint address.   Finally, Pazdar used 2077 Main Street as his address in a Chapter 11 bankruptcy petition filed on behalf of his business, Steel Fab, Inc., in the United States Bankruptcy Court, on December 15, 2009, and has never changed or updated his address.  (See plaintiff's Exhibit 3.)

As noted, the Appellate and Supreme courts have not defined “abode.”   However, the Superior Court has addressed factual situations analogous to those presented in the present case.   The Superior Court has found service proper when:  “[d]uring that period [in which abode service was attempted], the defendant received mail at [the address where service was attempted] and listed the address for purposes of her driver's license.   The defendant had significant ties to [the address] given that both her mother and half-brother lived there.   In addition, the plaintiffs made good faith efforts to serve the defendant.”   Neubauer v. Barr, Superior Court, judicial district of Hartford, Docket No. CVH 7393 (August 8, 2006, Bentivegna, J.).   In another decision, the court ruled that an address was the usual abode of the defendant based upon the following:  “In March 2006, the defendant's daughter and her family lived at [the address where abode service was attempted].   They continue to reside there.   The defendant had occupied the residence just weeks before the service of process ․

“The defendant used the home as his mailing address.   He provided the address when he filed a pro se appearance in a related case ․ The appearance has never been amended.   He has received mail there for years, and continues to do so.”   Chicago Title Insurance, Co. v. Saturno, Superior Court, judicial district of Hartford, Docket No. CV 06 5002991 (July 19, 2007, Bentivegna, J.).

In Remondi v. Girard, Superior Court, judicial district of Norwich, Docket No. FA 08 4107505 (April 15, 2008, Boland, J.) (45 Conn. L. Rptr. 307, 308), in which the parties argued whether a woman could be properly served at her mother's home, the court described the defendant as, “a young woman in a transient state who has not yet settled in any home other than that of her mother.   She has done nothing more than create a fog as to any different resident on the relevant date, and it is not sufficient to sustain her burden of proof on this issue.”

Pazdar, like the defendants in those in the prior cases, appears to still have significant contacts with 2077 Main Street and continues to use the address to receive mail and for the purpose of filing certain court documents.   Based on all the evidence herein, as the defendant in Remondi, at the time service was made in this case and continuing to the present time, Pazdar appears to be in a transient state and has not settled in any more permanent residence than 2077 Main Street.

In addition, “the receipt of actual notice is an important component of the analysis since the purpose of the statute's provision for substituted service is, in the end, to ensure actual notice upon a litigant of the existence of a lawsuit.”  Remondi v. Girard, supra, 45 Conn. L. Rptr. 308.   Here, while the defendant states that he never saw the process, he did not testify that he was unaware of the action.

Finally, the court takes into consideration that “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 day in court ․ [Thus] [o]ur practice does not favor the termination of proceedings without a determination of the merits of the controversy whe[n] that can be brought about with due regard to necessary rules of procedure ․ For that reason, [a] trial court should make every effort to adjudicate the substantive controversy before it, and, whe[n] practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal.”  (Internal quotation marks omitted.)  R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 272–73, 939 A.2d 1122 (2010).

CONCLUSION

Accordingly, for all the foregoing reasons, Pazdar has failed to meet his burden of demonstrating that service of process was insufficient.   Under all the circumstances, abode service, at 2077 Main Street, Glastonbury was proper and sufficient to confer personal jurisdiction.   Therefore, the motion to dismiss is hereby denied.

Peck, J.

FOOTNOTES

FN1. The complaint was accompanied by the marshal's return of service..  FN1. The complaint was accompanied by the marshal's return of service.

FN2. Pursuant to Practice Book § 17–20(d), the filing of an appearance prior to the entry of judgment automatically sets aside the default by operation of law..  FN2. Pursuant to Practice Book § 17–20(d), the filing of an appearance prior to the entry of judgment automatically sets aside the default by operation of law.

FN3. The defendant has also argued that the process was improperly placed in the door of 2077 Main Street, Glastonbury.   This argument was first raised in a post-hearing brief after the defendant failed to raise it in his original memorandum in support of the motion to dismiss or a reply brief in further support of the motion to dismiss.   Since this issue was not raised in a timely way, the court does not address it..  FN3. The defendant has also argued that the process was improperly placed in the door of 2077 Main Street, Glastonbury.   This argument was first raised in a post-hearing brief after the defendant failed to raise it in his original memorandum in support of the motion to dismiss or a reply brief in further support of the motion to dismiss.   Since this issue was not raised in a timely way, the court does not address it.

Peck, A. Susan, J.