Opinion
X03HHDCV166072658S
08-07-2017
D'Anna Welsh v. Christina M. Martinez
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MARILYN MARTINEZ'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Hon. Ingrid L. Moll, Superior Court Judge.
Before the court is defendant Marilyn Martinez's (Marilyn) motion to dismiss for lack of personal jurisdiction (motion) (#118.00). See Practice Book § 10-30(a)(2). Marilyn moves under General Statutes § 52-59b, Connecticut's " long-arm" statute, contending that dismissal is required because the plaintiff can satisfy none of the five categories of conduct enumerated therein. Marilyn further argues, that even if the long-arm statute were satisfied, the plaintiff cannot satisfy the minimum contacts test under a due process analysis. The plaintiff argues, to the contrary, that the long-arm statute and the minimum contacts test are satisfied. Because the court concludes that the plaintiff has not satisfied any provision of the longarm statute, the motion is granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
In providing the following recitation, the court relies upon any undisputed allegations in the complaint, the affidavits submitted by Marilyn and accompanying material, as well as the affidavit and attachments submitted by plaintiff's counsel in opposition to the motion. See Matthews v. SBA, Inc., 149 Conn.App. 513, 529, 89 A.3d 938 (2014); see also Knipple v. Viking Communications, Ltd., 236 Conn. 602, 608-09, 674 A.2d 426 (1996).
Marilyn is the 80-year old mother of the defendant, Dr. William V. Martinez (Dr. Martinez). Marilyn resides in Georgetown, Texas. Following the August 26, 2015 death of her brother, William L. Heft (Heft), who also resided in Georgetown, Texas, Marilyn was appointed as executrix of his estate. The estate was probated in Williamson County, Texas. Marilyn is not an heir to Heft's estate. As executrix, Marilyn had the responsibility of selling certain unclaimed assets of the estate. Those items that are relevant to the plaintiff's claims include: (1) two handguns and a hunting rifle (guns); and (2) a 1992 Chevrolet Corvette (Corvette).
After Heft's funeral, during a visit to Heft's former home, Dr. Martinez told Marilyn that he wished to purchase the guns and the Corvette, as mementos of Heft, his favorite uncle, and in order to keep such items in the family. As executrix, Marilyn determined the value of the guns and the Corvette.
The value of the guns was determined to be $850. Dr. Martinez advised Marilyn during a telephone conversation that his then-wife, Cristina Martinez (Cristina), would send a check for that amount. Thereafter, Marilyn made arrangements for the guns to be sent to Connecticut through a gun store located in Georgetown, Texas. That shipment occurred, and Dr. Martinez picked up the guns at a gun shop in Connecticut. In December 2015, Marilyn deposited the $850 check into the estate's Wells Fargo bank account.
With regard to the Corvette, Marilyn determined the value to be approximately $8,000. That amount was the price Heft paid for the car, and Marilyn considered that amount to be the fair value based on her research. Marilyn conveyed that amount to Dr. Martinez, who told her that Cristina would tender a check for that amount. Thereafter, Marilyn received a check dated January 31, 2016, for $8,000 as payment for the Corvette, which she deposited into the estate's Wells Fargo bank account on March 1, 2016. Marilyn either mailed the title to the Corvette to Dr. Martinez sometime in early spring 2016 or gave the title to the Corvette to Cristina on September 3, 2016, while in New Jersey for a family wedding. The Corvette remains at Marilyn's home in Texas. As of March 2, 2017, the Corvette had a dead battery and was unregistered. Marilyn has not driven the Corvette since it was delivered to her home. There is no evidence in the record that the Corvette has ever been in Connecticut.
Marilyn's affidavits are inconsistent on this point. Her initial affidavit stated that she mailed the title to Dr. Martinez sometime in early spring 2016. Her supplemental affidavit states that her current recall is that she gave the title to Cristina while in New Jersey for a family wedding. The court does not consider the inconsistency to be a material one, however, because, under either scenario, the court's analysis and resulting conclusion are the same.
Until the complaint in the above-captioned matter was served on Marilyn, she was not aware of an unsatisfied judgment against Dr. Martinez. Marilyn has never resided or owned property in Connecticut. She has never conducted business in, or derived any income from, Connecticut. She has only visited Connecticut in the past in order to visit family. Marilyn has not visited Connecticut since November 2014, and she has no plans to return.
The plaintiff's first amended complaint dated November 23, 2016, to which Marilyn's motion is directed, asserts three counts against Marilyn, as follows: (1) count thirteen: intentional fraudulent transfer under General Statutes § 52-552e(a)(1); (2) count fourteen: constructive fraudulent transfer under General Statutes § § 52-552e(a)(2) and 52-552f; and (3) common-law fraudulent conveyance.
On December 19, 2016, Marilyn filed the instant motion and accompanying memorandum. (##118.00-119.00.) In support of her motion, she submitted her affidavit dated December 18, 2016, with attached documentation. On February 17, 2017, the plaintiff filed her memorandum in opposition and accompanying documentation, which contained an affidavit of plaintiff's counsel, Assaf Z. Ben-Atar, Esq., attaching excerpts from the deposition of Dr. Martinez and copies of the checks described below. (#145.00.) On March 3, 2017, Marilyn filed her reply brief (#148.00). In further reply, Marilyn submitted a " corrected and supplemental" affidavit dated March 3, 2017, which attached copies of the checks described herein.
On March 22, 2017, the court heard oral argument on the instant motion. On April 12, 2017, the court ordered Marilyn to supplement the record on or before April 21, 2017, to clarify who is the actual title owner of the Corvette described herein and the date of the transfer from the estate of Marilyn's brother to such owner. (#118.86.) On April 17, 2017, Marilyn moved for an extension of time until April 28, 2017, to provide such information. (#154.00.) That motion was granted. (#154.86.) On April 26, 2017, Marilyn moved for an additional extension of time until May 30, 2017, to provide the court-ordered information. (#159.00.) That motion was also granted. (#159.86.) Notwithstanding the extensions of time, Marilyn has not complied with the court's order, as no supplemental information regarding the Corvette has been provided. In any event, for purposes of resolving the motion, the court finds that Marilyn became the owner of the Corvette upon the above-described sale, as the Corvette remains in Texas at her home, and Dr. Martinez testified at his deposition that he bought the Corvette for his mother.
In her reply brief, Marilyn requested an evidentiary hearing in the event the court found a disputed fact that was material to the decision herein. Because the court finds no dispute as to facts material to this decision, no evidentiary hearing was held.
In the meantime, Marilyn has changed counsel.
II. STANDARD OF REVIEW
" 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 . . . 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[s] . . ." (Alteration in original; citation omitted; internal quotation marks omitted.) Matthews, 149 Conn.App. at 528.
" If the defendant challenging the court's personal jurisdiction is a foreign corporation or a nonresident individual, it is the plaintiff's burden to prove the court's jurisdiction." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007); Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 250, 460 A.2d 481 (1983) (" in the establishment of facts pertaining to personal jurisdiction, it is the plaintiff who bears the burden of proof"). Here, where Marilyn, a nonresident individual, contests personal jurisdiction, the plaintiff assumes the burden to establish jurisdiction.
III. ANALYSIS
The following principles that govern the court's analysis of a challenge based on personal jurisdiction are well settled. " When a defendant files a motion to dismiss challenging the court's jurisdiction, a two-part inquiry is required. 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.) Knipple, 236 Conn. at 606. " Only if [the court] find[s] the statute to be applicable [does it] reach the question whether it would offend due process to assert jurisdiction." Lombard Bros., Inc., 190 Conn. at 250.
In support of her argument that the court has jurisdiction over Marilyn, the plaintiff, who has the burden to demonstrate sufficient facts to support the exercise of jurisdiction, relies on two prongs of Connecticut's long-arm statute, specifically, General Statutes § 52-59b(a)(2), and, alternatively, § 52-59b(a)(1). Those subdivisions provide:
(a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual, foreign partnership or foreign voluntary association, or over the executor or administrator of such nonresident individual, foreign partnership or foreign voluntary association, who in person or through an agent: (1) Transacts any business within the state; [or] (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; . . .
General Statutes § 52-59b. The court addresses these statutory provisions in turn.
A
The plaintiff first argues that Marilyn is subject to jurisdiction pursuant to § 52-59b(a)(2) because she " commit[ted] a tortious act within the state." Specifically, the plaintiff argues that (a)(2) is satisfied because Marilyn, despite being in Texas, (1) accepted the $8,000 check from Cristina, which was mailed to her from Connecticut and (2) communicated with Dr. Martinez about the transfer of funds while he was in Connecticut. The court disagrees.
As an initial matter, the plaintiff does not allege that Marilyn was physically present in Connecticut in connection with any of the challenged conduct. Nor has there been any showing that Marilyn had knowledge, at the time of the challenged transactions, of the judgment against her son, Dr. Martinez. Indeed, Marilyn states in her December 18, 2016 affidavit that " [u]ntil the Complaint in this action was served on me, I was not aware of an unsatisfied judgment against my son." Although the plaintiff responds in her opposition brief that such statement is " very hard to believe, " there has been no evidentiary showing to support a finding that Marilyn knew of the judgment against her son at any relevant time and engaged in the alleged conduct as a result thereof. Moreover, the evidence submitted in connection with Marilyn's motion to dismiss demonstrates that Marilyn deposited the $8,000 check at issue into the Heft estate and did not receive those funds in her individual capacity. That evidence was not meaningfully controverted. At most, Marilyn was a passive recipient of the funds at issue.
In support of the plaintiff's argument that acceptance of fraudulently transferred monies constitutes " tortious conduct within the state, " the plaintiff principally relies on one Superior Court decision and several decisions by the New York Appellate Division, Second Department. The court has carefully examined that collection of cases and finds them either inapposite and/or unpersuasive. In Chrysler Credit Corp. v. Berman, No. 0057971, 1992 WL 165723 (Conn.Super. June 25, 1992), the trial court found § 52-59b(a)(2) satisfied, but the decision does not make clear why. In Ed Moore Advertising Agency, Inc. v. I.H.R., Inc., 114 A.D.2d 484, 494 N.Y.S.2d 400, 400-02 (App. Div.2d Dept. 1985), and Neilson v. Sal Martorano, Inc., 36 A.D.2d 625, 319 N.Y.S.2d 480, 482 (App.Div.2d Dept. 1971), there was at least some evidence in the record that the defendant movant had knowledge of a collusive or conspiratorial purpose underlying the allegedly fraudulent transaction. In Liberty Co. v. Boyle, 272 A.D.2d 380, 708 N.Y.S.2d 122, 124-25 (App.Div.2d Dept. 2000), the court makes no mention of personal jurisdiction. Finally, the court is not persuaded by Weitz v. Weitz, 85 A.D.3d 1153, 926 N.Y.S.2d 305 (App.Div.2d Dept. 2011), because the decision does not provide a recitation of the allegations in the complaint or evidence submitted.
"[I]n enacting § 52-59b, the legislature used New York Civil Practice Law § 302 (McKinney 1980-81 Sup.) as a model . . . We therefore find pertinent the judicial interpretation given to that New York statute." (Citations omitted.) Zartolas v. Nisenfeld, 184 Conn. 471, 474, 440 A.2d 179 (1981).
Here, there is no evidence that Marilyn engaged in any relevant conduct other than when she was in Texas (and perhaps New Jersey) or that she had any knowledge of the judgment against her son. While the plaintiff spends considerable time arguing that Marilyn's conduct in Texas was tortious, the plaintiff has not satisfied her burden to demonstrate the applicability of the long-arm provision requiring a showing of " tortious conduct within the state ." Accordingly, the court concludes that § 52-59b(a)(2) does not apply.
Notably, the plaintiff does not argue that § 52-59b(a)(3), which relates to " tortious act[s] outside the state, " applies.
B
In the alternative, the plaintiff relies on § 52-59b(a)(1), contending that the court has personal jurisdiction over Marilyn because she " transact[ed] . . . business within the state." According to the plaintiff, (a)(1) is satisfied because Marilyn " accepted fraudulently transferred funds that were mailed from Connecticut, negotiated the transfer with Dr. Martinez while he was in Connecticut and purportedly mailed the Corvette's title to Dr. Martinez in Connecticut after she received the funds from Cristina." (#145.00 at 9.) The court again disagrees.
" Transacts any business, " as set forth in § 52-59b(a)(1), is not defined in the General Statutes. It has been construed " to embrace a single purposeful business transaction." Ryan v. Cerullo, 282 Conn. 109, 119, 918 A.2d 867 (2007) (internal quotation marks omitted). The term " transacts business" is " not broadly interpreted in Connecticut." Goudis v. Am. Currency Trading Corp., 233 F.Supp.2d 330, 334 (D.Conn. 2002). As stated by our Supreme Court, " [i]n determining whether the plaintiff's] cause of action arose from the defendants' transaction of business within this state we do not resort to a rigid formula. Rather, we balance considerations of public policy, common sense, and the chronology and geography of the relevant factors." Zartolas, 184 Conn. at 477.
The court is mindful of our Supreme Court's analysis in Ryan, 282 Conn. 109, 918 A.2d 867, in which the Court concluded that professional accounting services that were performed in New York, which included the preparation of the plaintiff's Connecticut income tax returns, were " insufficient to warrant a determination that the professional services rendered by [the nonresident individual defendant] constituted the transacting of business in this state within the meaning of § 52-59b(a)(1)." Id. at 120-21; see also id. at 121 (" [A]ny relationship or nexus between [the nonresident individual defendant's] activities and this state simply is too attenuated to support the conclusion that the accounting services [he] performed for the plaintiff constituted transacting business in this state for purposes of § 52-59b(a)(1)"). The fact that the Supreme Court concluded in Ryan that no personal jurisdiction could be exercised under those facts pursuant to § 52-59b(a)(1) suggests that the facts in the present case do not support a finding that Marilyn was transacting business in this state within the meaning of § 52-59b(a)(1).
Although it does not provide a perfect analogy, the Appellate Court's decision in Solano v. Calegari, 108 Conn.App. 731, 949 A.2d 1257 (2008), is also helpful. In Solano, the plaintiff alleged that he had made a monetary loan to his sister, the defendant. Id. at 733. Although the request for and discussion of a loan took place in Connecticut, the loaned funds were transferred between two accounts in New York and withdrawn outside of Connecticut. Id. at 738. The Appellate Court concluded that those factual findings " do not support the conclusion that the defendant transacted business within this state." Id. at 739. Solano, as the instant case, involved a purely familial transaction with no commercial purpose suggested in the record. Here, the relationship between Marilyn's alleged activity and this state is even more attenuated and cannot support the conclusion that her alleged conduct constituted transacting business within the state for purposes of § 52-59b(a)(1).
The plaintiff relies on three cases-- Gaudio v. Gaudio, 23 Conn.App. 287, 580 A.2d 1212 (1990), Schwartz v. Watrous, No. CV08-5008426, 2009 WL 323373 (Conn.Super. Jan. 14, 2009) [47 Conn.L.Rptr. 56, ], and GATX Financial Corp. v. National Fairways Partners, No. X06-CV02-0175159S, 2003 WL 22853699 (Conn.Super. Nov. 10, 2003) [36 Conn.L.Rptr. 26, ]--for her proposition that " the mere acceptance of fraudulently transferred property constitutes a single purposeful business transaction directed towards this state" (#145.00 at 11), such that Marilyn is subject to jurisdiction under § 52-59b(a)(1). The plaintiff's reliance on these cases is misplaced.
First, in Gaudio, 23 Conn.App. 287, 580 A.2d 1212, a nonresident individual (Eannelli) was joined as a defendant in an action for dissolution of marriage and for fraudulent conveyance. Id. at 288-89. After the filing of the dissolution, the defendant husband (Gaudio) allegedly had sold to Eannelli his stock, for $250,000, in a Connecticut corporation in which Gaudio was the sole stockholder and the sole asset of which was a parcel of commercial real estate in Stamford. Id. at 289, 298. The Appellate Court affirmed the trial court's denial of Eannelli's motion to dismiss, concluding: " These facts reasonably support the conclusion that Eannelli's purposeful Connecticut-related activity sufficiently brought him within the reach of the applicable longarm statute [§ 52-59b(a)(1)]." Id. at 299.
Second, in Schwartz,, 2009 WL 323373, at *1, the plaintiff asserted, among other things, fraudulent conveyance claims against defendants Ernest Watrous (Watrous) and Deborah Watrous-Johnston (Watrous-Johnston), who were family members. Watrous-Johnston filed a motion to dismiss for lack of personal jurisdiction. The complaint alleged that Watrous was indebted to the plaintiff and that Watrous transferred three shares of stock in Watrous Associates, Inc., a Connecticut corporation, to Watrous-Johnston with the intent of avoiding the plaintiff's debt or hindering its collection., Id. at *1, 5. The trial court denied Watrous-Johnston's motion to dismiss, reasoning that " Watrous-Johnston's ownership in Watrous Associates, Inc. as well as her receipt of transferred Watrous Associates, Inc. stock classify her as an individual who `transacts business' in Connecticut under § 52-59b(a)(1).", Id. at *4. As in Gaudio, the decision makes clear that the defendant transferee's ownership in a Connecticut corporation, as a result of the allegedly fraudulent transfer of stock, supported the exercise of personal jurisdiction pursuant to § 52-59b(a)(1).
Third, in GATX Financial Corp. v. National Fairways Partners, No. X06-CV02-0175159S,, 2003 WL 22853699, at *4 (Conn.Super. Nov. 10, 2003), the trial court denied the motions to dismiss for lack of personal jurisdiction filed by two defendants, a nonresident individual (Purcell) and a foreign corporation (Triac), concluding that § 52-59b(a)(1) was satisfied. The court reasoned that Purcell and Triac had voluntarily entered into a limited partnership agreement with co-defendant NFPI, a limited partnership formed under the laws of Connecticut., Id. at *3. Among other activities, NFPI leased and operated a golf course located in Connecticut. Id. Purcell and Triac had allegedly received substantial financial distributions from NFPI, which the plaintiff challenged as fraudulent conveyances. Id. Based on those facts, the court concluded: " Purcell and Triac purposefully engaged in substantial economic activity in Connecticut and availed themselves of the benefits and protections of Connecticut's laws. In doing so, they subjected themselves to Connecticut's jurisdiction to resolve a dispute over the appropriateness of the substantial financial distributions made by the partnership to them." Id.
The court concludes that these cases are readily distinguishable from the circumstances relevant to the present motion. Simply put, the conduct of the defendants in those cases was not limited to the alleged receipt of funds (or stock). The plaintiff suggests that such receipt of funds alone is sufficient. Those cases do not support such proposition. Moreover, in each of the cases on which the plaintiff relies, the relationship between the transferor and the transferee was either a purely commercial relationship (as in Gaudio and GATX) or a hybrid familial-commercial relationship (as in Schwartz) . Here, in contrast, the relationship between Marilyn and Dr. Martinez is strictly a familial one, as there is no evidence in the record to suggest that the alleged transfers at issue, even if proven, were conducted in connection with (or in creation of) any commercial interest on the part of Marilyn or Dr. Martinez. There is no evidence that Marilyn acted in a manner so as to invoke " the benefits and protection of Connecticut laws." Ryan, 282 Conn. at 120.
Thus, based on the foregoing, the court concludes that Marilyn is not subject to personal jurisdiction under § 52-59b(a)(1) because the plaintiff has failed to demonstrate that Marilyn " [t]ransact[ed] any business within the state" that gave rise to the plaintiff's cause of action. In light of the court's finding that the plaintiff has failed to prove jurisdiction under either long-arm statutory provision on which she relies, it is unnecessary to reach the question whether it would offend due process to assert jurisdiction. See, e.g., Ryan, 282 Conn. at 117 n.12; Lombard Bros., Inc., 190 Conn. at 250.
IV. CONCLUSION
For the foregoing reasons, defendant Marilyn Martinez's motion to dismiss dated December 19, 2016 (#118.00) is granted. Accordingly, the plaintiff's claims against Marilyn Martinez are dismissed.