Weihing v. Dodsworth

917 A.2d 53

100 Conn.App. 29

Thomas J. WEIHING v. Ronald W. DODSWORTH et al.

No. 27039.

Appellate Court of Connecticut.

Argued December 6, 2006.

Decided March 13, 2007.

John T. Bochanis, Bridgeport, for the appellant (plaintiff).

Keith P. Sturges, with whom, on the brief, was Dennis M. Laccavole, Bridgeport, for the appellee (named defendant).

SCHALLER, McLACHLAN and PELLEGRINO, Js.

SCHALLER, J.

The plaintiff, Thomas J. Weihing, appeals from the judgment of the trial court granting the motion of the defendant Ronald W. Dodsworth to dismiss the complaint for improper service.¹ On appeal, the plaintiff claims that the court improperly concluded that (1) the defendant was immune from service of process and (2) he was not entitled to an evidentiary hearing. We disagree and affirm the judgment of the trial court.

The following procedural history and allegations set forth in the plaintiff's complaint are relevant to our discussion. The defendant previously had commenced a civil action against the plaintiff that alleged wrongful termination of employment. The defendant withdrew his action against the plaintiff on or about September 17, 2004. The plaintiff commenced the present action on July 8, 2005, and set forth claims for vexatious litigation, intentional and negligent infliction of emotional distress, and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

On September 1, 2005, the defendant filed a motion to dismiss the complaint, pursuant to Practice Book §§ 10-31(a)(2) and (5), due to the court's lack of personal jurisdiction as a result of the insufficiency of service of process. In support of his motion, the defendant submitted an affidavit stating that: (1) on July 8, 2005, his permanent residence was in the state of Colorado, and he had been a resident of Colorado for more than three years; (2) on July 8, 2005, his sole purpose for being in Connecticut was to testify in an arbitration proceeding that was based on a different and separate case filed by the plaintiff against the defendant; (3) he was in Connecticut for approximately thirty hours and left the state at the completion of his testimony; and (4) at the time he was served with the summons and complaint, he owned no property in Connecticut, maintained no residence in Connecticut and was not employed in Connecticut.

The plaintiff filed an objection to the defendant's motion to dismiss, and, in the alternative, filed a request for an extension of time to conduct discovery and have an evidentiary hearing concerning the issues raised by the defendant. On September 19, 2005, the court held a hearing on the defendant's motion. On October 7, 2005, the court issued a memorandum of decision dismissing the plaintiff's complaint, and denying the request for an extension of time for further discovery and an evidentiary hearing. The court concluded that the defendant was entitled to immunity from service of process because he was a nonresident of Connecticut and had been in the state for the sole purpose of providing testimony at a legal proceeding. The court determined that the record indicated that the defendant was testifying in an arbitration hearing that was based on a previous action commenced by the plaintiff and therefore was in the posture of a "defendant."² The court further concluded that the plaintiff failed to allege any facts in dispute that would require further discovery or an evidentiary hearing. This appeal followed. Additional facts will be set forth as necessary.

We begin our analysis by setting forth the applicable standard of review. "The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, 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. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) South Sea Co. v. Global Turbine Component Technologies, LLC, 95 Conn.App. 742, 744, 899 A.2d 642 (2006); see also Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); Alter & Associates, LLC v. Lantz, 90 Conn.App. 15, 19, 876 A.2d 1204 (2005). Because a challenge to the jurisdiction of the court presents a question of law, our review of the court's legal conclusion is plenary. Foster v. Smith, 91 Conn.App. 528, 536, 881 A.2d 497 (2005).

We now set forth the legal principles that guide the resolution of the plaintiff's appeal. "It . . . is the law that the plaintiff has the burden to prove facts pertaining to personal jurisdiction." Doctor's Associates, Inc. v. Keating, 72 Conn. App. 310, 313, 805 A.2d 120 (2002), aff'd, 266 Conn. 851, 836 A.2d 412 (2003). Further, we note that "[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." (Internal quotation marks omitted.) Foster v. Smith, supra, 91 Conn. App. at 536, 881 A.2d 497; see also Bove v. Bove, 93 Conn.App. 76, 81, 888 A.2d 123, cert. denied, 277 Conn. 919, 895 A.2d 788 (2006). Guided by these general principles, we turn to the plaintiff's specific claims.

I

The plaintiff first claims that the court improperly concluded that the defendant was immune from service of process.³ Specifically, he argues that because the defendant previously had commenced a civil action against the plaintiff for wrongful termination of employment, "the court's jurisdiction over the defendant continues with respect to any actions arising out of the wrongful termination suit."⁴ We are not persuaded.

It will be helpful for our discussion to provide the background of the general rule that a nonresident attending a court proceeding as a witness is immune from the service of process with respect to a separate action. Murphy v. Dantowitz, 142 Conn. 320, 328, 114 A.2d 194 (1955); see also Dunham v. Cigna Ins. Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-87-334030, 1995 WL 46725 (January 26, 1995) (13 Conn. L. Rptr. 432); 72 C.J.S. 684-85, Process § 34 (2005). Our Supreme Court recognized this general rule in Bishop v. Vose, 27 Conn. 1, 12 (1858). In Bishop, the court in holding that a nonresident who commences an action in Connecticut is not entitled to immunity from service of process with respect to an action initiated against him discussed the different status of nonresident witnesses. Id., at 10-13. Approximately fifty years later, in Chittenden v. Carter, 82 Conn. 585, 74 A. 884 (1909), the court explained: "The rule giving to nonresident witnesses immunity from the service upon them of civil process, while going to, remaining at, and returning from courts before which they are to testify in another jurisdiction, is established both in England and in this country by a very great weight of authority, and rests upon sound principles. . . . Generally, the principles upon which these decisions regarding immunity of foreign witnesses are based are that the due administration of justice requires that every reasonable method of ascertaining the whole truth in matters before them should be open to our courts; that a very important one of these methods is the personal presence and oral testimony of witnesses having knowledge of the subject under investigation; that the personal attendance of foreign witnesses cannot be enforced by process, and must therefore necessarily be voluntary on their part; that liability to be sued in a foreign jurisdiction would naturally tend to deter such witnesses from attending court in such jurisdictions; and that as witnesses attending court are in a measure within the control of the court, during the trial of a cause, whatever interferes with such control and obstructs the trial affects the dignity and authority of the court itself. We think the reasons for the rule are sound . . . ." (Citations omitted.) Id., at 589-90, 74 A. 884; see also Stewart v. Ramsay, 242 U.S. 128, 37 S.Ct. 44, 61 L.Ed. 192 (1916); Ryan v. Ebecke, 102 Conn. 12, 13, 128 A. 14 (1925).

Finally, we note that in Wilson Sewing Machine Co. v. Wilson, 51 Conn. 595 (1884), the United States Circuit Court for the District of Connecticut stated that the defendant, a citizen of Illinois, was in the state of Connecticut both as a defendant and a witness in his defense. Id., at 596. While in the courthouse, he was served with a new complaint directed against him. The court held that the nonresident defendant was immune from such service. Id., at 597. "It is important to the administration of justice that each party to a suit should have a free and untrammeled opportunity to present his case, and that non-resident defendants should not be deterred, by the fear of being harassed or burdened with new suits in a foreign state, from presenting themselves to such state to testify in their own behalf or to defend their property. The inconvenience to which plaintiffs are subjected by being compelled to sue defendants in the state of which they are citizens, is not so great as to justify the allowance of obstructions by means of legal proceedings which will preclude nonresident suitors from giving free and unrestricted attention to their cases when they are on trial. Public policy requires that the entrance of such suitors to the court room shall not be impeded." Id.; see also Jakaboski v. Jakaboski, Superior Court, judicial district of Middlesex, Docket No. 074460, 1995 WL 118186 (March 7, 1995) (13 Conn. L. Rptr. 580) (immunity rule applies to nonresident defendant and not to nonresident plaintiff); Tierney v. Tierney, 12 Conn.Supp. 91, 93 (1943) (same). The trial court noted that "[t]he parties in the present case have a...