Neubauer v. Barr, 97 Conn. App. 1 (Conn. Super. 8/8/2006)

Page 1

97 Conn. App. 1

LISA NEUBAUER, ET AL v. SAFIYA BARR

Docket No. 7393.

H-1319.

Connecticut Superior Court.

Housing Session, Judicial District of Hartford.

August 8, 2006.

MEMORANDUM OF DECISION MOTION TO DISMISS

BENTIVEGNA, J.

I STATEMENT OF THE CASE

The defendant has moved to dismiss the complaint on the following grounds:

1. "Service of process was not made on the defendant at the defendant's "abode," but instead was made by serving the defendant's brother, at a place where the defendant did not live;

2. Because this Court's jurisdiction is limited to "housing matters" and several counts of the present complaint do not assert claims for housing matters, this court lacks subject matter jurisdiction and over these counts."

In her affidavit dated April 7, 2006, the defendant swore to the following:

1. "Even though I was named as the defendant in this case, I was never served with process.

2. Instead, my half-brother was served with process at my mother's home, 63 Kent Drive, Manchester, Connecticut 06042.

3. At the time of service of process on my brother, I did not live at 63 Kent Street in Manchester.

4. Since February 2006, I have lived at 5 West Washington Avenue, Unit 1, Stamford, Connecticut 06902

5. Up to February 2006, I lived at 137 Hollister Street, Stratford, Connecticut 06615."

Defense counsel filed an appearance on March 20, 2006.

As to the defendant's first ground for dismissal, the plaintiffs contend that defendant was properly served under the particular circumstances of the case. The state marshal's return of service states in relevant part:

"[O]n the 28^th day of February, 2006, I left a verified true and attested copy of the original Writ, Summons, Complaint, Statement of Amount In Demand and Exhibits, at the usual place of abode of the within named defendant, SAFIYA BARR, at 63 Kent Drive, in the Town of Manchester."

This is the second attempt made by the plaintiffs to serve the defendant. In September 2005, the plaintiffs attempted to serve the defendant at 68 Birdsey Street, in Bridgeport. That address was based, in part, on current address information defendant provided to the Manchester Police on April 30, 2005. Before the second attempt, the plaintiffs tried to verify the defendant's address. On February 2, 2006, the plaintiffs checked with the Department of Motor Vehicles, which listed the defendant's address as 63 Kent Drive, Manchester. In addition, on or about February 8, 2006, the plaintiffs obtained verification from the U.S. Post Office that the defendant's mail was delivered to 63 Kent Drive, Manchester.

As to the defendant's second ground for dismissal, the plaintiffs argue that all the counts of the complaint are "housing matters" and should not be dismissed for lack of subject matter jurisdiction.

II DISCUSSION

A Insufficiency of Service of Process

"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." General Statutes § 52-57 (a). "Where the defendant can show that process was left at a place other than his usual place of abode, the court must find that there was no service of process and that it acquired no jurisdiction over the person of the defendant which would authorize it to render a valid judgment against him." (Citation omitted; internal quotation marks omitted.) Gondek v. Haugwitz-Reventlow, Superior Court, judicial district of Hartford-New Britain, Docket No. 387870 (June 18, 1991, Wagner,J.)(1991 Ct. Sup. 5478).

"Neither the Supreme Court nor the Appellate Court have defined `usual place of abode.' Nationwide Ins. Co. v. Comito, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 99 0270188 (July 25, 2000, Levine, J.) (27 Conn. L. Rptr. 606). However, Superior Court decisions have discussed the phrase. For example, in Lemp v. East Granby, Superior Court, judicial district of Hartford, Docket No. CV 99 0589417S (June 6, 2000, Rubinow, J.) (27 Conn. L. Rptr. 388), it was stated that a person's usual place of abode is `the place where the person is living at the time of service.' (Internal quotation marks omitted.) A usual abode has also been referred to as `the place where [the defendant] would most likely have knowledge of service of process.' Smith v. McKeough, Superior Court, judicial district of New London at Norwich, Docket No. 123757 (August 15, 2002, Hurley, J.T.R.). It should be noted that a usual abode need not be a person's domicile. Nationwide Ins. Co. v. Comito, supra, Superior Court, Docket No. CV 990270188; see also Foye v. Foye, 8 Conn.Sup. 293 (1940). Rather, an abode is similar to a residence in that a person can have more than one. Nationwide Ins. Co. v. Comito, supra, Superior Court, Docket No. CV 99 0270188 (holding that abode service can be made at a previous residence if that residence has not been abandoned); see Foye v. Foye, 8 Conn.Sup. 293 (1940); Capitol Light & Supply Co. v. Gunning Electric Co., 24 Conn.Sup. 324, 190 A.2d 495 (1963); Collins v. Scholz, 34 Conn.Sup 501, 373 A.2d 200 (1976). 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. See Plonski v. Halloran, 36 Conn.Sup. 335, 336, 420 A.2d 117 (1980); see also Close, Jensen, & Miller P.C. v. Lomangino, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 91 47550 (July 25, 1991, Klaczak, J.), aff'd, 51 Conn.App. 576, 722 A.2d 1225, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999)." Steve Dean Excavating v. Rozbicki, Superior Court, judicial district of Litchfield, Docket No. CV 01 0086012 (August 31, 2004, Bozzuto, J.)(2004 Ct. Sup. 12991, 12994-12995). See also Bove v. Bove, 93 Conn. App. 76, 82, 888 A.2d 123 (2006).

In Foye, the service of process was made at the home of the defendant's sister and her husband. Foye v. Foye, supra, 8 Conn. Sup. 293. The defendant had previously given his bank the address as his home address. Id. at 294. Even though he was living at other addresses, he continued to use his sister's home as his mailing address. Id. The court held that "the validity of such service does not depend upon whether the defendant was domiciled at the place where the process was left, but only whether such location was his `residence' within the intendment of the statute....The phrase `usual place of abode' as used therein is connotative of residence only and `residence' has been held to mean a mere temporary place of living in contradistinction to the element of permanency combined with a present intention to remain, which is essential to an acquisition of a domicile....One may have two or more places of residence within a State, or in two or more States, 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. It will reach him in one as well as the other...This accomplishes the chief purpose of the direction of the statute...." (Citations omitted; internal quotation marks omitted.) Foye v. Foye, supra, 8 Conn. Sup. 293-294.

In Bove, the trial court found that the defendant had actual notice of the proceedings and was deliberately attempting to evade service. Bove v. Bove, supra, 93 Conn. App. 83. In affirming the trial court, the Appellate Court held that "[n]otice of a complaint coupled with good faith attempted service is sufficient to confer jurisdiction where a party is evading service." (Citation omitted.) Id. at 82.

An analysis of the evidence supports the finding that 63 Kent Drive, Manchester, was a "place of abode" of the defendant in February 2006. During that period, the defendant received mail at 63 Kent Drive, Manchester and listed the address for purposes of her driver's license. The defendant had significant ties to 63 Kent Drive, Manchester, given that both her mother and half-brother lived there. In addition, the plaintiffs made good faith efforts to serve the defendant. The plaintiffs attempted to confirm the defendant's address through the U.S. Post Office and the Department of Motor Vehicles. While the evidence is not conclusive, it does suggests that the defendant was attempting to evade service. Clearly, the defendant had actual notice of this action.

B Housing Court Jurisdiction

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