Lyons v. Birmingham L. Off.

315 A.3d 391

224 Conn.App. 758

Justine LYONS

v.BIRMINGHAM LAW OFFICE, LLC, et al.

(AC 45631), (AC 45632)

Appellate Court of Connecticut.

Argued January 11, 2024

Officially Released April 16, 2024

Michael S. Taylor, with whom were Brendon P. Levesque, and, on the brief, Steven Berglass and Rosie Miller, for the appellant (plaintiff).

Colleen Vellturo, with whom, on the brief, was Stephen P. Brown, for the appellees (named defendant et al.).

Walter J. Klimczak III, for the appellees (defendant Marylou Scofield et al.).

Moll, Cradle and Westbrook, Js.

WESTBROOK, J.

[1] ₇₆₂The plaintiff, Justine Lyons, appeals from the judgment of the trial court dismissing the underlying action against the defendants Birmingham Law Office, LLC, and Attorney Matthew Birmingham (Birmingham defendants); and Marylou Scofield, PC, and Attorney Marylou Scofield (Scofield defendants),¹ for lack of personal jurisdiction. The plaintiff claims that the court improperly concluded that (1) personal jurisdiction over the defendants was not conferred under our state’s long arm statute, General Statutes § 52-59b, and (2) exercising jurisdiction over the defendants would violate the due process requirements of ₇₆₃the United States constitution because they have insufficient "minimum contacts" with the state.² We disagree and, accordingly, affirm the judgment of the trial court.

We consider the following facts as alleged in the complaint and those facts contained in the affidavits and exhibits submitted in support of the defendants’ motions to dismiss and the plaintiff's opposition thereto. The plaintiff was the longtime girlfriend of Alfred Ducharme (decedent) and lived with him for years prior to his death in December, 2020. Both the plaintiff and the decedent were Connecticut residents at all relevant times. The decedent owned property at 137 Flatow Road in Ludlow, Vermont (Vermont property), in which the plaintiff had no ownership interest. In 2020, the Birmingham defendants represented the decedent in the sale of the Vermont property to a buyer from Massachusetts represented by the Scofield defendants. The plaintiff was not a party to this real estate transaction.

Birmingham Law Office, LLC, is located and conducts business in the state of Vermont. Attorney Birmingham is the sole member of this firm. He practices law exclusively in Vermont. He is not admitted to the Connecticut bar. Throughout his representation of the decedent in the sale of the Vermont property, Attorney Birmingham communicated with the decedent at various times while the decedent was in Connecticut.³

₇₆₄Marylou Scofield, PC, is located and conducts business in the state of Vermont. Although Attorney Scofield previously practiced law in Connecticut, she moved her law practice to Vermont in 2013 and retired from the practice of law in Connecticut in 2019. Marylou Scofield, PC, has represented clients from across the Northeast, as evidenced by the testimonials on its website from out of state clients. None of the testimonials, however, is from a Connecticut resident. Attorney Scofield was additionally listed as the lead counsel for a party to a federal action in the United States District Court for the District of Connecticut⁴ as late as 2019, but the party that she represented was no longer actively involved in the action at that time.⁵

A real estate closing occurred on December 23, 2020, and the Vermont property was sold. At the time of closing, the decedent instructed the Birmingham defendants to have the Scofield defendants wire the sale proceeds to the plaintiff's bank account.⁶ The Birmingham defendants forwarded the provided bank account information to the Scofield defendants. On December 24, 2020, the Scofield defendants attempted to wire the money to the account but could not do so because the provided account information was incorrect. The Scofield defendants subsequently emailed the Birmingham defendants to notify them that the wire transfer could not be completed with the account information provided.

₇₆₅On December 26, 2020, the decedent died. The Birmingham defendants contacted the Scofield defendants to notify them of the decedent’s death. The Birmingham defendants instructed the Scofield defendants to instead wire the money from the sale proceeds to their IOLTA account,⁷ which the Scofield defendants subsequently did. Upon receiving the sale proceeds, the Birmingham defendants held the money in their IOLTA account until they spoke with the defendant Attorney David L. Weiss of the defendant The Law Offices of David L. Weiss (Weiss defendants), the attorney for the fiduciaries of the decedent’s estate. The Birmingham defendants subsequently released the sale proceeds to Attorney Weiss to hold in escrow until the Probate Court could determine ownership of the funds.⁸

The plaintiff commenced the present action by way of a three count complaint against the defendants on June 7, 2021. The complaint alleged negligence and violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., arising from the sale of the Vermont property.

The Birmingham defendants filed a motion to dismiss for lack of personal jurisdiction on August 3, 2021. They argued that the court "lacks personal jurisdiction over the [Birmingham] defendants as non-residents of the state of Connecticut. More particularly, the requirements of the long arm statute … § 52-59b … have not been met because Attorney Birmingham practices exclusively in the state of Vermont and has not performed legal services in relation to any property or ₇₆₆asset in this state. … The only connection with this matter is his former representation of a seller of real property located in Vermont. Moreover, personal jurisdiction would violate constitutional due process because there are insufficient ‘minimum contacts’ with this state, which is required under due process. He has no offices or employees in Connecticut and does not own, possess or use real property in this state. It is not foreseeable that Attorney Birmingham would be haled into court in the state of Connecticut, and, as such, personal jurisdiction would offend traditional notions of fair play and substantial justice."

The Scofield defendants also filed a motion to dismiss for lack of personal jurisdiction on August 4, 2021. The Scofield defendants argued that, "in this matter, the state of Connecticut does not have jurisdiction over the [Scofield] defendants because they did not transact any business within … the state of Connecticut, nor do the [Scofield] defendants meet the minimum contacts requirements …."

The plaintiff filed objections to both motions to dismiss, to which the Birmingham defendants and the Scofield defendants each filed a reply. In her objections to the defendants’ motions to dismiss, the plaintiff argued that "the requirements of Connecticut’s long arm statute … are satisfied and due process is not violated by [the] court’s exercise of personal jurisdiction over the defendants." Specifically, she argued that "[t]he Birmingham defendants engaged in Connecticut communications and transactions, including legal representation of a Connecticut resident as well as negotiation and agreement with a Connecticut attorney, thus transferring substantial monies to that Connecticut attorney. Attorney Birmingham is currently admitted in the Connecticut Superior Court, and the Birmingham defendants’ Internet website solicits and advertises for out-of-state interstate clients. The instant action involves ₇₆₇Connecticut conduct and improper actions of the Birmingham defendants."

As to the Scofield defendants, the plaintiff argued that "[Attorney] Scofield currently maintains admission in the United States District Court for the District of Connecticut … the Scofield defendants solicit and advertise for Connecticut and interstate clients to provide services in the Northeast … [are] registered in Connecticut, and [have] over twenty years of experience serving clients in New York, Connecticut and Vermont. The instant action involves Connecticut residents and improper actions of the Scofield defendants."

The court thereafter directed the parties to review our Supreme Court’s decision in North Sails Group, LLC v. Boards & More GmbH, 340 Conn. 266, 264 A.3d 1 (2021), and to submit supplemental briefing on the case’s relevance to the issue of personal jurisdiction raised by the defendants’ motions to dismiss. The parties complied with the order and submitted supplemental briefs. The court additionally ordered a Standard. Tallow evidentiary hearing,⁹ which occurred remotely on February 1, 2022.

Following the Standard Tallow evidentiary hearing, the trial court issued its memorandum of decision granting the defendants’ motions to dismiss. In its memorandum of decision, the court concluded that it did not have personal jurisdiction over the defendants pursuant to § 52-59b (a) and that the defendants had insufficient minimum contacts with Connecticut to meet constitutional due process requirements.

Specifically, the court concluded that it did not have personal jurisdiction over the Birmingham defendants ₇₆₈pursuant to § 52-59b (a) (1), (2) or (3). Turning first to § 52-59b (a) (1),¹⁰ the court stated that the plaintiff failed to meet her burden of showing that the Birmingham defendants transacted any business in Connecticut. The court explained that the "evidence shows that the decedent contacted [the Birmingham defendants] seeking representation, thereby initiating contact with the Birmingham defendants. It is not readily apparent, on the basis of the evidence submitted, that the Birmingham defendants’ subsequent communications with the decedent regarding the Vermont real estate transaction, while he was in Connecticut, shows that they were actively participating in business transactions within Connecticut, nor do they demonstrate that the Birmingham defendants were purposefully availing themselves of the benefits and protections of...