Bove v. Bove

• Decision Date: 10 January 2006
• Docket Number: No. 26056.,26056.
• Citation: 888 A.2d 123,93 Conn.App. 76
• Court: Connecticut Supreme Court
• Parties: Kenneth BOVE v. Howard W. BOVE et al.

888 A.2d 123

93 Conn.App. 76

Kenneth BOVE v. Howard W. BOVE et al.

No. 26056.

Appellate Court of Connecticut.

Argued October 18, 2005.

Decided January 10, 2006.

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Conrad Ost Seifert, Old Lyme, for the appellant (named defendant).

John K. Harris, Jr., Danielson, for the appellee (plaintiff).

DRANGINIS, DiPENTIMA and GRUENDEL, Js.

GRUENDEL, J.

The defendant Howard W. Bove appeals from the judgment of the trial court ordering the partition by sale of properties owned by the parties.¹ On appeal, the defendant claims that the court (1) lacked subject matter jurisdiction to render judgment because he never was served notice of the action properly,² (2) abused its discretion by denying his motions for continuances and (3) violated his due process rights by denying his motions for continuances. We disagree and affirm the judgment of the trial court.

This is the second time the defendant has appealed to this court to challenge the trial court's jurisdiction. See Bove v. Bove, 77 Conn.App. 355, 823 A.2d 383 (2003) (Bove I). At the onset of this matter, the plaintiff, Kenneth Bove, commenced an action for partition or sale of two parcels of real property against his brothers, Howard Bove and Douglas Bove. On September 21, 2000, the plaintiff attempted to serve the defendant with notice at a Connecticut address. The defendant thereafter filed a limited appearance³ and motion to dismiss on the ground that the court lacked jurisdiction because his abode was located in Florida. The court granted the defendant's motion on November 7 2000, but later found on November 15, 2000, that the defendant had actual notice of the pendency of this particular action. The defendant subsequently was defaulted for failure to plead, and on March 14, 2001, the plaintiff filed a motion to default the defendant for failure to appear, which was granted on November 5, 2001. A hearing in damages then was held, in which the court ordered that the interests of the owners would be served best by sale of the property rather than by partition in kind. In its February 11, 2002 memorandum of decision, the court noted that because this was an action in rem, it was able to exercise jurisdiction even though the action as to the defendant had been dismissed. Id., at 356-58, 823 A.2d 383. The defendant appealed and, in Bove I, we held that because the defendant had been served improperly and did not choose to waive the inadequate service of process, the court lacked jurisdiction over the defendant and his interest in the properties. Id., at 366-67, 823 A.2d 383.

Following Bove I, the plaintiff filed a motion for first order of notice, which the court granted on June 17, 2003. The plaintiff again attempted service of process on the defendant, this time at his Florida address by certified letter, which was returned as unclaimed. The defendant again filed a limited appearance and motion to dismiss, challenging the court's jurisdiction. On January 29, 2004, the case was marked off the court's short calendar for insufficient service.

On February 10, 2004, the court granted the plaintiff's motion for second order of notice, ordering in hand service to be made on the defendant. A return by proper officer was entered on February 27, 2004. The plaintiff then moved to default the defendant for failure to appear, which the court granted on April 13, 2004.⁴ On June 3, 2004, the defendant filed another limited appearance and motion to dismiss. When neither party appeared at the hearing in damages scheduled for June 9, 2004, the court dismissed the action. On July 12, 2004, the court granted the plaintiff's motion to open the judgment of dismissal, and on August 16, 2004, granted the plaintiff's motion for finding of actual notice. Another hearing in damages was held on October 28, 2004, and the court again ordered partition by sale of the properties. The defendant again appealed to this court.

I

The defendant first claims that the court did not have jurisdiction to order partition by sale because it did not have jurisdiction over him. Specifically, the defendant argues that he did not have actual notice of the action because the "improper drop service" by a Florida sheriff was not sufficient to meet the statutory requirements for service of process. Because of the inadequate service, the defendant argues that Bove I requires the present action to be dismissed. We do not find that argument persuasive.

The following additional facts are relevant to the defendant's claim. The application for second order of notice that the court granted on February 10, 2004, ordered that in hand service be made on the defendant by a proper officer of the sheriff's department of Volusia County, Florida, on or before March 4, 2004. Thereafter, on February 21, 2004, Ben F. Johnson, a Florida sheriff, attempted service on the defendant at his home. The sheriff acknowledged the defendant, but, instead of receiving service, the defendant jogged across the street onto a beach. Because the defendant did not allow the sheriff to serve him with the papers, the sheriff put the process in the defendant's mailbox.⁵ When the defendant became aware that the sheriff had placed papers in his mailbox, he contacted the United States Postal Service. A letter carrier then removed the papers and took them to a supervisor, who contacted the sheriff's department. A representative from the sheriff's department later removed the papers. Subsequently, the defendant entered a limited appearance on June 3, 2004, in order to file a motion to dismiss, challenging the adequacy of the service of process. The plaintiff subsequently filed a motion for finding of actual notice, which the court granted on August 16, 2004.

We begin by setting forth our standard of review. "A challenge to the jurisdiction of the court presents a question of law. . . . Our review of the court's legal conclusion is, therefore, plenary." (Citation omitted.) Pitruzello v. Muro, 70 Conn.App. 309, 313, 798 A.2d 469 (2002).

In Bove I, we stated the law regarding the court's exercise of personal jurisdiction in this matter. "[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.) Bove v. Bove, supra, 77 Conn.App. at 362, 823 A.2d 383. "If the defendant is outside the state, the proper manner to effect service is to apply for an order of notice specifying the kind of proper notice which is most likely to come to the defendant's attention." Id., at 365, 823 A.2d 383. Here, the court was within its discretion to determine that in hand service would best achieve this goal.

"In order that a valid judgment may be rendered against a nonresident upon whom it is claimed that constructive service has been made, [General Statutes] § 52-284⁶ must be strictly observed and the facts showing compliance with it must appear of record." (Internal quotation marks omitted.) Bove v. Bove, supra, 77 Conn.App. at 365-66, 823 A.2d 383. Here, we look to the facts described in the sheriff's return to demonstrate compliance with the requirements for service of process. "The return is prima facie evidence of the facts stated therein." Jenkins v. Bishop Apartments, Inc., 144 Conn. 389, 390, 132 A.2d 573 (1957).

"Notice of a complaint coupled with good faith attempted service is sufficient to confer jurisdiction where a party is evading service of process. Avianca, Inc. v. Corriea, 705 F.Supp. 666[685] (D.D.C.1989)." Banco Latino, S.A.C.A. v. Lopez, 53 F.Supp.2d 1273, 1281 (S.D.Fla.1999); see also 72 C.J.S., Process § 43(b) (1987) ("[w]here facts occur which would convince a reasonable man that personal service of process is being attempted, service cannot be avoided by denying service and moving away without consenting to take the document in hand; and service may be effected by depositing the paper in some appropriate place in his presence where it will be most likely to come into his possession"); 62B Am.Jur.2d, Process § 190 (2005) ("Even though a defendant refuses physical acceptance of a summons, service is complete if a defendant is in close proximity to a process server under such circumstances that a reasonable person would be convinced that personal service of the summons is being attempted. Delivery of a summons to the person to be served who resists service may be accomplished by leaving it in his or her general vicinity. . . ."). The sheriff's attempt to serve the defendant with process before he fled to the beach and the subsequent service in the defendant's mailbox are sufficient to constitute good faith efforts at compliance when the defendant was clearly evading service.⁷

"It is essential . . . that reasonable notice be given and that an opportunity to participate in the proceeding be afforded to the persons whose rights may be affected." (Internal quotation marks omitted.) Bove v. Bove, supra, 77 Conn.App. at 363, 823 A.2d 383. The defendant's actions subsequent to the service by the Florida sheriff support the court's conclusion that the defendant had actual notice of the contents of the process and the proceeding pending in the court. After refusing to accept in hand service of process, deliberately avoiding contact with the process left in his mailbox, and filing no fewer than six limited appearances and numerous other motions in this tortured case, the defendant asks this court to conclude that he did not have notice of the action pending against him and was denied the opportunity to participate in the proceeding. The facts, as stated, do not support that conclusion. Accordingly, the court had jurisdiction.

II

The defendant next claims that the court abused its discretion by not granting his motions for continuances. Specifically, he argues that because the...