Thornburg v. Sollazzo

Richard Thornburg et al., Executors v. Ellen Sollazzo

No. HHDCV166066749S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

March 17, 2017

UNPUBLISHED OPINION

ORDER RE MOTION TO DISMISS

Cesar A. Noble, J.

Before the court is the motion to dismiss of the defendant, Ellen Sollazzo, for insufficiency of service of process because she did not maintain a usual place of abode at the address where the marshal left process. Because the court finds that process was not served on her usual place of abode the motion is granted.

FACTS

The present action stems from a dispute between the co-plaintiffs, Richard Thornburg and Lynette Thornburg ^[1] acting as the personal representatives of the estate of Kim Degerstrom (decedent), and the defendant, Ellen Sollazzo regarding the collection of sums of money that the decedent allegedly loaned to the defendant. On March 14, 2016, the co-plaintiffs filed a four-count complaint, which is the operative complaint, in which they allege the following facts. The decedent loaned to the defendant $7, 700 in October 2012, as well as $4, 500 in January 2013. The decedent and the defendant orally agreed that the $12, 200 debt would be paid back in full at some point in the future. Moreover, the decedent passed away on August 29, 2015, at which time the defendant had repaid no portion of the $12 200 debt. Subsequently, the co-plaintiffs were appointed personal representatives of the decedent's estate. Despite the co-plaintiffs' numerous demands for repayment, the defendant has not satisfied the alleged debt. According to the co-plaintiffs, the decedent and her estate have been damaged as a result of the defendant's failure to repay the October 2012 and January 2013 loans. The co-plaintiffs claim damages, interest, and costs.

On July 25, 2016, the defendant filed an appearance and a motion to dismiss the co-plaintiffs' complaint for insufficiency of service of process. The motion was accompanied by a memorandum of law and the defendant's signed and sworn affidavit. The following documents were attached to the defendant's affidavit as exhibits: (1) a copy of a return of service (return), which is attested and signed by State Marshal Bruce Kaz (marshal); (2) a copy of a pendente lite parenting plan that the court, Carbonneau, J., approved and entered as an order in Sollazzo v. Sollazzo Superior Court, judicial district of Hartford, Docket No. FA-13-4067491-S (May 7, 2013), which was an action for dissolution of marriage between the defendant and her former spouse, David Sollazzo; (3) a copy of a motion to unseal financial affidavits pursuant to Practice Book § 25-59A(h)^[2] that the co-plaintiffs filed in Sollazzo ; (4) a copy of an order that was entered by the court, Albis, J., which granted the co-plaintiffs' motion to unseal financial affidavits; and (5) a copy of a demand letter, dated June 7, 2016, from the co-plaintiffs' counsel that is addressed to the defendant at 235 East River Drive, #308, East Hartford, Connecticut, 06108, as well as 200 Retreat Avenue, Suite 312, Hartford, Connecticut, 06106.

On August 9, 2016, the co-plaintiffs filed a memorandum of law in opposition to the defendant's motion to dismiss. In support of the opposing memorandum, the co-plaintiffs submitted the following documents: (1) their signed and sworn affidavit; and (2) a print-out of an e-mail, dated July 13, 2015, that was sent to the co-plaintiffs' counsel by Lisa Vincent, the defendant's former attorney. Oral argument was heard at short calendar on November 28, 2016. Additional facts and procedural history will be set forth as necessary.

LEGAL STANDARD

" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " [J]urisdiction over the person, jurisdiction over the [subject matter], and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011). " Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding." Talenti v. Morgan & Brother Manhattan Storage Co., 113 Conn.App. 845, 853-54, 968 A.2d 933, cert. denied, 292 Conn. 908, 973 A.2d 105 (2009). " Because service of process implicates a court's personal jurisdiction, an action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Alldred v. Alldred, 132 Conn.App. 430, 431, 31 A.3d 1185 (2011), cert. dismissed, 303 Conn. 926, 35 A.3d 1075 (2012).

" When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Lake Road Trust Ltd. v. ABB Powertech (Pty) Ltd., 136 Conn.App. 671, 677, 51 A.3d 1109 (2012). " [I]f the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . [then] the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts]. If 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 ." (Emphasis in original; internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 551-52, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014).

DISCUSSION

In the present action, the defendant argues that the court should grant the motion to dismiss on the ground of insufficiency of service of process. Specifically, the defendant argues that service of process was insufficient because she was not served with process in hand, nor did she reside at the address where the marshal left process. With respect to the latter point, the defendant further argues that, more than three years ago, she was removed from the particular address by virtue of the pendente lite parenting plan that was accepted and entered in Sollazzo . Lastly, the defendant argues that the co-plaintiffs knew, by virtue of their participation in Sollazzo, that she was removed from the location at which the marshal left service.

The co-plaintiffs counter by arguing that the court should deny the motion to dismiss because service of process was proper in the present action. Specifically, the co-plaintiffs argue that--in light of the marshal's return--the defendant did, in fact, reside at the address where the marshal left process. In this vein, the co-plaintiffs also argue that service of process was proper because the defendant received actual notice of the present action. Moreover, the co-plaintiffs assert that they lacked prior knowledge of the fact that the defendant did not reside at the address where the marshal left process, and granting the motion to dismiss will waste judicial resources and unfairly prejudice the co-plaintiffs. Regarding the latter point, the co-plaintiffs argue that the defendant has not denied the existence of the underlying debt. Additionally, the co-plaintiffs argue that the court should deny the motion to dismiss because the defendant is precluded from claiming insufficiency of service of process under the doctrines of laches and waiver. In this regard, the co-plaintiffs argue that the defendant learned of the present action on June 9, 2016, yet she waited well over a month to file a response, thus--according to the co-plaintiffs--the defendant's claim of insufficiency of service of process is barred.^[3] Lastly, the co-plaintiffs argue that the court should deny the motion to dismiss because the motion and the supporting memorandum of law were not served on their counsel in accordance with the rules of practice.

The legal principles that govern the present case are well settled. " [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." (Citations omitted; internal quotation marks omitted.) Jimenez v DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). " The mode of service provided generally for civil actions in Connecticut appears in General Statutes § 52-57 . . ." Smith v. Smith, 150 Conn. 15, 19, 183 A.2d 848 (1962). Section 52-57 requires that " 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." § 52-57(a). In essence, " [§ ]52-57 provides for in personam service . . . by two methods: (a) by common-law service, that is,...