TD Bank, N.A. v. Salce

175 Conn.App. 757

169 A.3d 317

TD BANK, N.A.

v.Anthony H. SALCE, Jr., et al.

AC 39342.

Appellate Court of Connecticut.

Submitted on briefs May 19, 2017

Officially released August 22, 2017

James M. Nugent and James R. Winkel, Milford, filed a brief for the appellant (named defendant).

Patrick M. Fryer, New Haven, filed a brief for the appellee (plaintiff).

Alvord, Mullins and Bear, Js.

PER CURIAM.

In this action seeking to collect on a promissory note, the defendant, Anthony H. Salce, Jr.,¹ appeals from the judgment of the trial court, Hon. Edward F. Stodolink , judge trial referee, rendered in favor of the plaintiff, TD Bank, N.A. On appeal, the defendant claims that (1) the court, Hon. Richard P. Gilardi , judge trial referee, erred in denying his motion to dismiss by improperly placing the burden of proof on him to establish a lack of personal jurisdiction due to ineffective service of process; and (2) the court, Radcliffe, J. , erred in granting summary judgment as to liability in favor of the plaintiff because the defendant's second special defense was viable. We disagree and, accordingly, affirm the judgment of the court.

A review of the record reveals the following facts. On April 18, 2008, the parties executed a revolving term promissory note (note) in which the defendant promised to repay the plaintiff $500,000 with interest. The note contained default and demand provisions. In a letter dated July 11, 2014, the plaintiff stated that the defendant was in default under the terms and conditions of the note and demanded payment in full on the outstanding balance.

On September 18, 2014, the plaintiff commenced the present action with a single count complaint to recover payment, alleging that the defendant had defaulted under the terms of the note. The return of service attests that the marshal left the writ, summons, complaint, affidavit, and direction for attachment at the defendant's usual place of abode in Fairfield (Fairfield property). On the same day, the marshal left two copies of those documents with the Secretary of the State and mailed a copy of them, via certified mail, return receipt requested, to the defendant's Naples, Florida residence.

On November 13, 2014, the defendant filed a motion to dismiss for lack of personal jurisdiction, which was denied by Judge Gilardi on January 20, 2015. On January 27, 2016, the plaintiff filed a motion for summary judgment, which was granted as to liability only, by Judge Radcliffe on March 7, 2016. After conducting a hearing in damages on June 7, 2016, Judge Stodolink rendered judgment for the plaintiff, ordering recovery against the defendant for $548,557.79 in damages. This appeal followed. On August 31, 2016, Judge Gilardi issued an articulation on the denial of the motion to dismiss. Additional facts and procedural history will be set forth as necessary.

I

The defendant claims that the trial court erred in denying his motion to dismiss for lack of personal jurisdiction due to insufficient service of process. The defendant presents two arguments in support of his claim.

First, he asserts that although he owned the real property in Fairfield at which the abode service was made, the Fairfield property was not his usual place of abode. Second, he did not receive the certified mail containing the writ, summons, complaint, affidavit, and direction for attachment at his Florida residence. The plaintiff responds that service of process was properly effectuated by service over a nonresident individual pursuant to General Statutes § 52–59b(c),² and by abode service pursuant to General Statutes § 52–57(a).³

We begin by setting forth the applicable standard of review. "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.... The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.... Where, however, as here, the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ...." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co. , 282 Conn. 505, 516, 923 A.2d 638 (2007). "Because a challenge to the personal jurisdiction of the trial court is a question of law, our review is plenary." Myrtle Mews Assn., Inc. v. Bordes , 125 Conn.App. 12, 15, 6 A.3d 163 (2010). Moreover, if a challenge to the court's personal jurisdiction is raised by a nonresident defendant, the plaintiff bears the burden of proving the court's jurisdiction. Knipple v. Viking Communications, Ltd. , 236 Conn. 602, 607, 674 A.2d 426 (1996).

As an initial matter, the defendant did not challenge before the court that § 52–59b(a) authorized personal jurisdiction over him as a nonresident individual so long as its provisions were complied with.⁴ In his affidavit, the defendant admitted that he resided in Florida, although he omitted any specific residential address, and that he owned the Fairfield property. He contended, however, that service was not effective because he never received service of process in Florida.⁵

The defendant's claim that he must have received the documents constituting process in order for service to be effective presents a question of statutory construction that requires plenary review. Doyle Group v. Alaskans for Cuddy , 146 Conn.App. 341, 346, 77 A.3d 880 (2013). "When construing a statute, [a court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, [a court] seek[s] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1–2z directs [courts] first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ...." (Internal quotation marks omitted.) Id., at 346–47, 77 A.3d 880.

Section 52–59b(c) provides in relevant part that, "[t]he process shall be served ... upon the Secretary of the State ... at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at the defendant's last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon ...." In the present case, the statute does not require what the defendant claims, i.e., that he must receive the documents constituting process in order for service to be effective. The marshal's affidavit states that service was made upon the defendant pursuant to § 52–59b(c) on September 18, 2014, by leaving two true and attested copies of the process with the Secretary of the State and sending, via certified mail, return receipt requested, a true and attested copy of the process to the defendant's Florida address.⁶ This is all that § 52–59b(c) requires.

Nonetheless, the marshal's supplemental return included a certified mail return receipt from the delivery of the process to the defendant's Florida address. The return receipt contained a signature in the section designated for the addressee. The plaintiff also submitted a Florida property tax bill and a Florida property appraisal summary, both of which contained the defendant's name and the same Florida address. Additionally, the plaintiff's demand letter dated July 11, 2014, was sent, via certified mail, to this same Florida address, and confirmation of delivery was verified by a signed return receipt.

In his articulation, Judge Gilardi wrote, "[t]he court finds it significant that aside from his two self-serving statements, the defendant did not submit a single affidavit or any documentary evidence in support of his claims not on the record."⁷ Furthermore, the court stated, "the plaintiff did submit competent and persuasive evidence ... in full compliance and satisfaction of the requirements of [ § 52–59b(c) ]."⁸ We agree with the court that the plaintiff complied with the requirements set forth in § 52–59b(c) when the marshal left the Secretary of the State with two copies of the writ, summons, complaint, affidavit, and direction for attachment, and mailed a copy of those documents to the defendant's last known address in Florida. On the basis of our review of the record and briefs, we agree with the court that the plaintiff met its burden in demonstrating that service of process was effectuated pursuant to § 52–59b(c).⁹

II

The defendant also claims that the trial court improperly rendered summary judgment in favor of the plaintiff because his second special defense of promissory estoppel raised a genuine issue of material fact. In his second special defense, the defendant alleged that "[t]he [p]laintiff is estopped from prosecuting this lawsuit in that the [p]laintiff agreed to a note modification and stated that appropriate documentation would be prepared and issued to the [d]efendant, however, the [p]laintiff then failed or refused to issue said documents." The plaintiff contends that the defendant has failed to substantiate his claim and failed to present proper evidence establishing the existence of a genuine issue of...