Investment Assoc. v. Lancia

Full title: INVESTMENT ASSOCIATES v. JOSEPH LANCIA

Court: Connecticut Superior Court Judicial District of New Haven at New Haven

Date published: May 5, 2008

2008 Ct. Sup. 7534 (Conn. Super. Ct. 2008)

45 CLR 437

Opinion

No. CV07-4028746S

May 5, 2008

MEMORANDUM OF DECISION RE MOTION TO DISMISS #102

ANGELA C. ROBINSON, JUDGE.

On December 27, 2007, the defendant filed a timely motion to dismiss for lack of personal jurisdiction, in support of which he submitted an affidavit.¹ In response, the plaintiff filed a memorandum of law in opposition, along with the officer's supplemental return and the summons and complaint from the underlying action, which gave rise to the 1994 judgment. Finally, the defendant filed a supplemental brief and reply memorandum. In support, the defendant included the summons and complaint of the withdrawn action, the 1994 judgment, the officer's return, the summons and complaint of the present action, and the affidavits of service in South Carolina. The matter was heard on the short calendar on January 28, 2008. For reasons more fully set forth, this court grants the motion to dismiss.

1 Practice Book § 10-31 states in relevant part that "[a]ny defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance." Specifically, "any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6 . . ." (Emphasis in original.) Pitchell v. Hartford, 247 Conn. 422, 433, 711 A.2d 797 (1999). In the present case, the defendant filed his appearance on November 29, 2007, and the motion to dismiss was filed on December 27, 2007. Accordingly, the defendant's motion to dismiss is timely.

FACTS

The claim in the instant matter arises out of a judgment against the defendant and for the plaintiff rendered on May 17, 1994.² The present action, filed on November 13, 2007, seeks to enforce the unpaid prior judgment of $272,505.03 in damages plus costs taxed at $201.20. Prior to the present action, the plaintiff filed an identical action on September 27, 2007, with docket number CV 07 4028072, which was withdrawn on December 3, 2007.

2 Investment Associates v. Summit Associates, Inc., Superior Court, judicial district of New Haven, Docket No. CV 91 0309954.

DISCUSSION

"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). Pursuant to Practice Book § 10-31(a), "a motion to dismiss shall be used to assert . . . (2) lack of jurisdiction over the person . . . and (5) insufficiency of service of process." The motion, however, "is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).

"If a challenge to the court's personal jurisdiction is raised by a defendant, either by a foreign corporation or by a nonresident individual, the plaintiff must bear the burden of proving the court's jurisdiction." Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607, 674 A.2d 426 (1996). "[W]hen a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction . . . [w]hen jurisdiction is based on constructive service [i.e., service on a foreign corporation or nonresident individual by mail] jurisdiction cannot arise solely from the acts recited in the return. There should be no presumption of the truth of the plaintiff's allegation of the additional facts necessary to confer jurisdiction." (Citations omitted; internal quotation marks omitted.) Reiner, Reiner Bendett, P.C. v. Cadle Co., 278 Conn. 92, 109, 897 A.2d 58 (2006).

RIGHT TO BRING A NEW ACTION ON A PRIOR JUDGMENT

The defendant erroneously argues that the plaintiff's action, seeking a judgment based on a prior judgment, is unprecedented. Further, the defendant argues that the plaintiff has missed its window of opportunity to enforce the 1994 judgment against the defendant because under South Carolina law the out-of-state judgment must be filed with the South Carolina court within ten years of the date it was issued. The plaintiff responds that an action seeking a judgment based upon a prior action is proper in Connecticut pursuant to both common law, as well as statutory law.³ See General Statutes § 52-607.⁴ The plaintiff further argues that Connecticut's policy for enforcing judgments is twenty years. See Nauss v. Pinkus, 2 Conn.App. 400, 411, 400 A.2d 568 (1984).⁵

3 The plaintiff also mistakenly argues that General Statutes § 52-604 supports its argument because it permits the unlimited enforcement of foreign judgments. The judgment in the present case, however, is not foreign judgment. It is a Connecticut judgment to be enforced in Connecticut against an out-of-state defendant.

4 General Statutes § 52-607 states: "The right of a judgment creditor to proceed by an action on the judgment or a motion for summary judgment in lieu of complaint instead of proceeding under sections 52-604 to 52-609, inclusive, remains unimpaired."

5 "At common law an action on a judgment may be maintained at any time within twenty years from the date of the judgment." (Internal quotation marks omitted.) Nauss v. Pinkus, 2 Conn.App. 400, 411, 480 A.2d 568 (1984).

"General Statutes § 52-607 preserve[s] the common-law right of a judgment creditor to bring an independent action on the judgment." (Internal quotation marks omitted) Chase Manhattan Bank v. Goldstone, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0144986 (December 5, 1995, Dean, J.) (15 Conn. L. Rptr. 472). See also Seaboard Surety Co. v. Waterbury, 38 Conn.Sup. 468, 470, 451 A.2d 291 (App.Sess. 1982). "Although an action on a judgment is not favored as being generally vexatious and oppressive, the weight of authority is to the effect that an allegation of nonpayment is sufficient reason for instituting suit." Garguilo v. Moore, 156 Conn. 359, 361, 242 A.2d 716 (1968).

"General Statutes § 52-598(a) . . . provides a twenty-five year time limit to institute an action for the collection of damages" from the day judgment was entered. Quickpower International Corp. v. Danbury, 69 Conn.App. 756, 759, 796 A.2d 622 (2002); Lee v. BSB Greenwich Mortgage, LP, Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 04 0200344 (August 31, 2007, Jennings, J.).⁶

6 General Statutes § 52-598(a) provides in pertinent part: "No execution to enforce a judgment for money damages rendered in any court of this state may be issued after the expiration of twenty years from the date the judgment was entered and no action based upon such a judgment may be instituted after the expiration of twenty-five years from the date the judgment was entered . . ."

The Superior Court has "the general power . . . to enforce its own judgments." Gentile v. Ives, 163 Conn. 281, 282, 303 A.2d 720 (1972). "[A] court must have the authority to enforce its own judgments; it must protect the integrity of its decisions by subsequent orders of enforcement." Bailey v. Roubos, Superior Court, judicial district of Danbury, Docket No. FA 97 0327053 (July 23, 1999, Owens, J.) (25 Conn. L. Rptr. 215, 216); see also Turgeon v. Turgeon, 190 Conn. 269, 284, 460 A.2d 1260 (1983).

In the present case, the defendant was engaged in a joint business venture in Connecticut, which gave rise to a legal dispute in 1991, which resulted in a Connecticut judgment in 1994. The plaintiff is within the twenty-five year statute of limitations of bringing an action on the prior judgment, because the present action was brought on November 13, 2007. This confers subject matter jurisdiction upon the court. It does not, however, address issues of personal jurisdiction over the defendant.

PERSONAL JURISDICTION OVER A NONRESIDENT INDIVIDUAL

The defendant argues in his motion to dismiss that the requirements of the long-arm statute were not met because he is not, and at the time of the institution of this action was not, a resident of the state of Connecticut. He attests that he has resided in South Carolina since 1992, and that there is no basis for the court to exercise personal jurisdiction over him. Finally, the defendant argues that, even if long-arm jurisdiction is authorized, personal jurisdiction over him is inconsistent with due process.

The plaintiff counters that the defendant has sufficient contacts with Connecticut arising out of the 1994 judgment in favor of the plaintiff and against the defendant. The plaintiff reasons that the defendant was a Connecticut resident at the time of the prior litigation, 16 years ago; and that utilizing the Connecticut court system meets the statutory requirement of "transacting business" within the state of Connecticut.

"When a defendant challenges personal jurisdiction in a motion to dismiss, the court must undertake a two part inquiry to determine the propriety of its exercising such jurisdiction over the defendant. The trial court must first decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 514-15, 923 A.2d 638 (2007).

First, the court examines the applicability of the Connecticut long-arm statute. "Connecticut courts may assert personal jurisdiction over a nonresident defendant under General Statutes § 52-59b(a)(1),⁷ as long as that defendant transacts business within the state." Gaudio v. Gaudio, 23 Conn.App. 287, 298, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). "[A]lthough the term `[t]ransacts any business' is not defined by statute, [the Connecticut Supreme Court] previously ha[s] construed the term to embrace a single purposeful business transaction." (Internal quotation marks omitted.) Ryan v. Cerullo, 282 Conn. 109, 119, 918 A.2d 867 (2007). "A purposeful business transaction is one in which the defendant has engaged in some form of affirmative conduct allowing or promoting the transaction of business within the forum state." (Internal quotation marks omitted.) The Cadle Co. v. Sydorowycz, Superior Court, judicial district of Hartford, Docket No. CV 00 0597714 (June 5, 2001, Hennessey, J.) (30 Conn. L. Rptr. 202, 204). "Moreover, a nonresident individual who has not entered this state physically nevertheless may be subject to jurisdiction in this state under § 52-59b(a)(1) if that individual has invoked the benefits and protection of Connecticut's laws by virtue of his or her purposeful Connecticut related activity . . ." (Internal quotation marks omitted.) Ryan v. Cerullo, supra, 282 Conn. 120.

7 Section 52-59b(a)(1) provides, in pertinent part, that: " . . . a court may exercise personal jurisdiction over any nonresident individual . . . who in person or through an agent transacts any business within the state."

"In determining whether [the defendant's] contacts constitute the transaction of business within the state, [the Connecticut Supreme Court does] not apply a rigid formula but balance[s] considerations of public policy, common sense, and the chronology and geography of the relevant factors." (Internal quotation marks omitted.) Gaudio v. Gaudio, supra, 23 Conn.App. 298.

In the present case, there is no dispute that the defendant is a nonresident who has not been a resident of this state for over 15 years. And, there are no allegations or claims that the defendant has had any contact with or transactions within Connecticut since the 1994 judgment entered against him. Therefore, the question for this court is: whether or not the 1994 judgment, alone, constitutes a sufficient business transaction within the state of Connecticut to allow this court to exercise personal jurisdiction over the defendant.

Connecticut case law does not provide any precedents for construing the past litigation as constituting a sufficient business transaction to provide personal jurisdiction to a Connecticut court. In fact, although there are no cases directly on point, the cases in which courts have found sufficient contacts to establish personal jurisdiction, generally, involve defendants who have engaged in contemporaneous activities in Connecticut or who have had direct and recent contact with Connecticut. According to the record, the defendant in the instant matter has had no contact with Connecticut since the mid-90s. Accordingly, this court concludes that the prior litigation, which was concluded 14 years ago, is insufficient to provide personal jurisdiction over the defendant under § 52-59b.

The second part of the jurisdictional analysis is whether constitutional protections of due process have been violated. "[T]he constitutional due process standard requires that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice . . . In other words, [t]he Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations . . . By requiring that individuals have fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign . . . the Due Process Clause gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit . . ." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 523-24, 923 A.2d 638 (2007).

"The due process test for personal jurisdiction has two related components: the minimum contacts inquiry and the reasonableness inquiry. The court must first determine whether the defendant has sufficient contacts with the forum state to justify the court's exercise of personal jurisdiction." (Internal quotation marks omitted.) CT Page 7539 Id., 524. Thereafter, "[w]hile the exercise of jurisdiction is favored where the plaintiff has made a threshold showing of minimum contacts at the first stage of the inquiry, it may be defeated where the defendant presents a compelling case that the presence of some other considerations would render jurisdiction unreasonable." (Internal quotation marks omitted.) Id., 525.

Addressing the issue of due process, the same factors noted above, are relevant. The defendant has not had any contact with Connecticut since 1992 outside of the 1994 judgment. The defendant is presently a resident of South Carolina, is employed in South Carolina and has been working there exclusively for over fifteen years. The defendant has not transacted any business in Connecticut in fifteen years; has not owned, used or possessed any real estate in Connecticut since 1992; and does not use a computer or a computer network within the State of Connecticut.

The plaintiff fails to meet its threshold burden of showing minimum contacts. The connection between the defendant's last contact with the forum state and the present action is too remote and too attenuated to constitute the requisite minimum contacts; and that the 1994 judgment does not constitute a recent "transaction of business." Accordingly, this court concludes that it does not have personal jurisdiction over the defendant, even though Connecticut courts would have a valid interest in enforcing a valid judgment