Opinion
LLICV146011374S
01-22-2019
FORD MOTOR CREDIT COMPANY, LLC fka Ford Motor Credit Company v. Cornel D. SAMPSON aka Cornel D. Sampson, Jr.
UNPUBLISHED OPINION
Bentivegna, J.
I
STATEMENT OF CASE
By way of complaint (Entry # 2), dated October 9, 2014, this collection action arises from a 2007 Massachusetts civil judgment entered against the defendant for more than $ 18, 000. The return of service states that the defendant was served a copy of the process at his usual place of abode, "52 Spencer St. Apt. 4, Winsted, Town of Winchester, CT.," on October 15, 2014. (Entry # 3.) On December 4, 2014, the plaintiff filed a motion for default for failure to appear pursuant to Practice Book § 17-20 (Entry # 101), which was granted on December 12, 2014. (Entry # 101.01.) A court notice was sent to the defendant at his address the same day. On January 26, 2015, the plaintiff filed a motion for judgment and order of payments (Entry # 102), which included a military affidavit stating that the defendant was not in the military service, and, thus, was not on active duty. Judgment without trial was entered for the plaintiff on February 9, 2015. (Entry # 102.02.) On March 10, 2015, the plaintiff sent notice of judgment by certified mail to the defendant at the previously mentioned address. (Entry # 104.) Subsequently, the plaintiff filed several postjudgment collection pleadings. The plaintiff filed an application for wage execution on June 12, 2018 (Entry # 113); the execution was issued on June 27, 2018. (Entry # 114.)
On November 9, 2018, the defendant filed a motion to open judgment (Entry # 115) on the ground that service of the summons and complaint was a nullity because it was left at the entrance of the wrong apartment. The defendant claims that he had no actual notice of this action until the wage garnishment was executed on June 27, 2018. The defendant admits, through counsel, he was residing at 52 Spencer Street, Apt. 4, Winsted, Connecticut on October 15, 2014. However, the residence is a multifamily home, and the defendant’s apartment, in the finished basement, had a separate entrance that was not readily apparent to persons unfamiliar with the property. He claims that he never received the summons or complaint at his abode.
On November 15, 2018, the plaintiff filed an objection to the defendant’s motion to open judgment. (Entry # 116.) The plaintiff objects to the motion on several grounds. First, the plaintiff argues that the motion should be denied because it was untimely filed. It was not filed within the four-month period after judgment, as required by General Statutes § 52-212(a) and Practice Book §§ 17-4(a) and 17-43(a), but rather it was filed almost four years later. Second, the plaintiff contends that the defendant had actual notice of the action because, after entry of judgment, multiple pieces of correspondence were sent to the defendant at the previously mentioned address and none were returned as undeliverable. Finally, the return of service attests that the state marshal effectuated abode service at 52 Spencer Street, Apt. 4, Winsted, Connecticut, where the defendant admits, through counsel, he was living on the date of service.
The matter was heard at civil short calendar on January 2, 2019. At the hearing, the defendant testified that 52 Spencer Street is a multifamily residence. In October 2014, he resided there in Apartment 4, which is the basement apartment. The landlord and two or three other tenants also resided at 52 Spencer Street. The defendant received mail there. At that time, he was in the Army National Guard but was not deployed or on active duty. He was obligated to be away one weekend a month and two weeks during the summer. Two of the other tenants at 52 Spencer Street were connected to the Army National Guard. The defendant testified that he did not receive by abode service the copy of the process in October 2014, and did not receive actual notice until the wage garnishment was executed in June 2018. The defendant offered several photographs into evidence. See Def.’s Ex. A. The photographs show the multifamily residence and the entrance to the defendant’s apartment. The apartment entrance is near the end of the driveway and is accessible to the public. The plaintiff did not present any evidence, but instead relied on the return of service.
II
DISCUSSION
"A motion to open a default judgment is governed by General Statutes § 52-212, which provides in relevant part: Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense." (Internal quotation marks omitted.) Lewis v. Bowden, 166 Conn.App. 400, 402-03, 141 A.3d 998 (2016). "Because of the important consideration of finality of judgments, however, a judgment should not be opened without a strong and compelling reason ... [such as] when there appears cause for which the court acting reasonably would feel bound in duty so to do." (Citations omitted; internal quotation marks omitted.) Martin v. Martin, 99 Conn.App. 145, 156, 913 A.2d 451 (2007). "Although ... § 52-212 ... normally limit[s] the authority [of the trial court] to open judgments to a four-month period, [this statute does] not preclude the opening of a default judgment that is rendered without jurisdiction over a defendant ... As a matter of law, in the absence of jurisdiction over the parties, a judgment is void ab initio and is subject to both direct and collateral attack ... A trial court’s authority to open such judgments does not arise from ... § 52-212(a) or Practice Book [§ 17-43] but from its inherent power to open a judgment rendered without jurisdiction ... In other words, a court always has the inherent authority to open a default judgment, irrespective of the four-month rule and the valid defense and good cause requirement in Practice Book § 17-43 and General Statutes § 52-212(a), if the judgment was rendered without jurisdiction of the parties or of the subject matter." (Internal quotation marks omitted.) Weinstein & Wisser, P.C. v. Cornelius, 151 Conn.App. 174, 180-81, 94 A.3d 700 (2014).
"As stated in Clover v. Urban, 108 Conn. 13, 16, 142 A. 389 (1928), [t]he chief purpose of this requirement [of abode service] is to ensure actual notice to the defendant that the action is pending." (Internal quotation marks omitted.) Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 479, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d 319 (1980). A default judgment must be set aside if the defaulted defendant establishes that the court did not have personal jurisdiction to render the judgment against him. See Commissioner of Environmental Protection v. Connecticut Bldg. Wrecking Co., 227 Conn. 175, 195-96, 629 A.2d 1116 (1993). "[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 ... The jurisdiction that is found lacking ... is jurisdiction over the person ..." (Internal quotation marks omitted.) Pedro v. Miller, 281 Conn. 112, 117, 914 A.2d 524 (2007). "A proper officer serving process must comply with the provisions of § 52-57(a), which require that process be served by leaving it with the defendant, or at his usual place of abode ..." (Internal quotation marks omitted.) Hibner v. Bruening, 78 Conn.App. 456, 463, 828 A.2d 150 (2003). "Abode service is not effective if it is left at an address that is not the usual address of the party to be served, and an action commenced by such improper service must be dismissed." Id.
"In many cases jurisdiction is immediately evident, as where the sheriff’s return shows abode service in Connecticut ... When, however, the defendant is a resident of Connecticut who claims that no valid abode service has been made upon her that would give the court jurisdiction over her person, the defendant bears the burden of disproving personal jurisdiction. The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer’s return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise." (Internal quotation marks omitted.) Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 855, 911 A.2d 1149 (2006), cert. granted on other grounds, 282 Conn. 901, 918 A.2d 888 (2007). "[B]ecause an officer’s return of abode service is prima facie evidence of the facts stated therein ... a defendant who contests the facts stated in the return bears the initial burden of disproving personal jurisdiction." (Citation omitted; emphasis in original.) Jimenez v. DeRosa, 109 Conn.App. 332, 341, 951 A.2d 632 (2008).
The defendant argues that when abode service is made at a multifamily dwelling, service must be made at the correct entrance to the defendant’s apartment. In support of his motion, the defendant cites to Clover v. Urban, supra, 108 Conn. 13-18, and Cugno v. Kaelin, 138 Conn 341, 84 A.2d 576 (1951), overruled on other grounds by Lampson Lumber Co. v. Hoer, 139 Conn. 294, 299-300, 93 A.2d 143 (1952).
In Clover, the officer left the copy of the process "in the outer hall of a house, the first floor which was occupied by the present plaintiff ... and the second floor and hall by another tenant." Clover v. Urban, supra, 108 Conn. 15. The plaintiff claimed that he "never received a copy of the papers or knew that it had been left there by the officer." Id. The court in Clover found that "[i]n a sense it is of course true that Clover had his ‘usual place of abode’ in Waterbury and in the apartment house in question, but it is manifest that leaving a copy of process anywhere in Waterbury or anywhere in the apartment house, would be insufficient. To accomplish the purpose of the statute, service should have been made at the apartment occupied by Clover. This did not include the outer hall used by the other tenant in connection with his apartment and occasionally used by Clover, any more than it included the walk from the street to the house, or the yard which the tenants used in common. In legal view, the apartments in a house of this character are as separate and distinct as though under separate roofs. Clover’s place of abode was as much a separate and distinct habitation as though in a building by itself. The outer hall was merely a passageway for his use in common with other tenants, and his place of abode was not reached from the street until one came to the door which led into his own apartment. The door of the apartment of each tenant is his outer door ... Leaving the copy of the process in the outer hall was much the same, and it failed as completely as if it had been left on the common sidewalk or in the common yard." (Citations omitted; emphasis added.) Id., 16-17.
In Cugno, the officer certified that he left a copy of the process for the codefendant father (Felix), who lived on the third floor of the three-family house, in the hallway under the door that led to the second floor apartment of the codefendant son (Spencer). Cugno v. Kaelin, supra, 138 Conn. 342. The court in Cugno found that "[t]he law is that the apartments in a house of the character of that in which Felix and Spencer lived are as separate and distinct as though they were under different roofs. Each had a single place of abode, a habitation as much apart from the other as though each lived in a building by himself. The door of the apartment of each tenant is his outer door. Therefore, service at the door of, or in the hallway to, Spencer’s apartment was not service at the ‘usual place of abode’ of Felix ... The service of the process in the manner found was a nullity, and the court acquired no jurisdiction over the person of the defendant Felix which would authorize it to render a valid judgment against him." (Citations omitted.) Id., 343.
In the present case, the court must decide whether the defendant has satisfied the initial burden of disproving personal jurisdiction, given that the state marshal’s return of abode service is prima facie evidence of the facts stated therein. The record reflects the following. The defendant was residing at 52 Spencer Street, Apt. 4, Winsted during the period in question. That address was his usual place of abode. See Jimenez v. DeRosa, supra, 109 Conn.App. 338 (the "usual place of abode" is presumptively the defendant’s home at the time service is made). The return of service specifically attests that the copy of the process was left at Apt. 4, which the photographic evidence shows was just off the driveway and was reachable from the street. This case is distinguishable from Clover and Cugno. Here, there is no basis to believe that the copy of the process was left at the front door of the building, at one of the other apartments, or in a common hallway or common area, rather than at Apt. 4. The court would have to engage in speculation to conclude that. The prima facie evidence of the return of service has not been rebutted. Service was made at the apartment occupied by the defendant. To the extent that actual notice is a factor to be considered, the defendant’s claim that he did not have actual notice of this action until June 2018 seems implausible given the circumstances, including that several notices were mailed to the defendant at 52 Spencer St. Apt. 4, Winsted and not returned undeliverable.
The defendant has not presented sufficient evidence to disprove the existence of personal jurisdiction. The court must conclude that the abode service was valid. The defendant was properly served, and personal jurisdiction over the defendant was properly conferred on the court at the time judgment was entered. This court declines to exercise its inherent authority to open the judgment as there is not a sufficient basis to do so. Therefore, the motion to open judgment is denied and the objection is sustained.
III
CONCLUSION
For the reasons stated above, the defendant’s motion to open judgment is denied.
SO ORDERED.