Fine Homebuilders, Inc. v. Perrone, (AC 26714) (Conn. App. 12/26/2006)
Decision Date | 26 December 2006 |
Docket Number | (AC 26714) |
Court | Connecticut Court of Appeals |
Parties | FINE HOMEBUILDERS, INC. <I>v.</I> DIANE PERRONE ET AL. |
Appeal from Superior Court, judicial district of Stamford-Norwalk, Wilson, J.
Jeffrey M. Sklarz, for the appellant (plaintiff).
Stephen A. Finn, with whom, on the brief, was Alex K. Sherman, for the appellees (named defendant et al.).
Bishop, McLachlan and Rogers, Js.
The plaintiff, Fine Homebuilders, Inc., appeals from the judgment of the trial court dismissing its complaint against the defendants Diane Perrone and Richard Perrone1 on the basis that the court lacked personal jurisdiction over the defendants due to insufficient service of process. We reverse the judgment of the trial court.
This case arises out of an action to foreclose a mechanic's lien and for breach of contract. On September 14, 2004, state marshal Siegrun G. Pottgen purported to serve the defendants by leaving the writ of summons, complaint and notice of lis pendens at their residence, "Villa Aquaria," in Darien. The defendants' home is a gated compound consisting of a main house and one or more outbuildings. Public access to the property is guarded by a front gate, which runs completely across the driveway, a fence, which partially surrounds the grounds, and shrubbery and trees. The house is more than 200 feet from the front gate. When Pottgen arrived to serve the papers at approximately 1 p.m., she found the gate locked. There is a call box to the left of the gate, which Pottgen used in an attempt to contact the defendants, but there was no response. Pottgen left the property and returned between 3 p.m. and 3:30 p.m. Again, there was no response. Pottgen returned once again between 5 p.m. and 5:30 p.m. The gate remained locked and, again, there was no response to her calls from the call box. Confronted with the locked gate blocking the principal avenue of ingress to the property, Pottgen affixed the process to the gate.2 The defendants received the process on September 16, 2004.
The defendants moved to dismiss the action on the ground that the court lacked jurisdiction over them due to insufficient service of process. After an evidentiary hearing, the court found that leaving the writ of summons and complaint and notice of lis pendens in a gate more than 200 feet from the defendants' home was not reliable service. This appeal followed.
We begin by setting forth our standard of review. (Internal quotation marks omitted.) Bove v.Bove, 93 Conn. App. 76, 81, 888 A.2d 123, cert. denied, 277 Conn. 919, 895 A.2d 788 (2006).
(Internal quotation marks omitted.) Tax Collector v. Stettinger, 79 Conn. App. 823, 825, 832 A.2d 75 (2003).
The manner in which service of process may be effected is determined by statute and by our decisional law interpreting the relevant statute. Therefore, we begin our analysis with the statute. General Statutes § 52-57 (a) provides: "Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." We note that the statute contains no definition of the term "abode." Thus, we do not know from the statute's language whether the term "abode" is intended narrowly to mean the dwelling house or more broadly to encompass the entirety of the property associated with a dwelling house.
(Internal quotation marks omitted.) State v. Tabone, 279 Conn. 527, 534-35, 902 A.2d 1058 (2006). (Citation omitted; internal quotation marks omitted.) Hibner v.Bruening, 78 Conn. App. 456, 459, 828 A.2d 150 (2003). (Internal quotation marks omitted.) State v.Tabone, supra, 535.
A review of the legislative history fails to shed any light on the meaning or import of the term "abode" or the phrase "at the usual place of abode." Some guidance is, however, provided by a review of the decisional law regarding the purpose of § 52-57 (a). Our Supreme Court has determined that the purpose of abode service is to afford a defendant actual notice of a pending action. (Citation omitted.) Smith v.Smith, 150 Conn. 15, 20, 183 A.2d 848 (1962). Accordingly, in order to effectuate abode service, "[t]he process must be left at the usual place of abode of the defendant in such a place and in such a manner that is reasonably probable the defendant will receive the notice of the action against him." Pozzi v. Harney, 24 Conn. Sup. 488, 491, 194 A.2d 714 (1963). Thus, whether the term "abode" connotes one's dwelling or more broadly one's property, we know that service must be effectuated in a way reasonably calculated to provide actual notice. Here, the defendants claim that service of process at a gate more than 200 feet from their house was insufficient as a matter of law because such service could not be construed as reasonably calculated to provide actual notice to them. We do not agree.
We begin our assessment with the word "abode" to determine whether the word narrowly means one's dwelling or whether it more broadly encompasses one's property. Although the statute at hand contains no internal definitions, our review of the General Statutes yields two instances in which the term "abode" is utilized and has been construed in a manner relevant to our inquiry. General Statutes § 53-206 provides in relevant part: (Emphasis added.)
In State v. Sealy, 208 Conn. 689, 690, 546 A.2d 271 (1988), the defendant had been convicted of carrying a dangerous weapon in violation of § 53-206 (a). The defendant had left his third floor apartment and confronted a police officer in the hall and stairway adjacent to the apartment. Id., 691. On this basis, the defendant claimed that he was in his abode and, thus, by the terms of § 53-206 (a), entitled to be in possession of the knife he wielded. Id., 692-93. In assessing this claim, our Supreme Court looked not to whether the defendant had been within the confines of his apartment when in possession of the knife, but rather whether he was entitled to exercise exclusive control over the hall and stairway. The court opined: ...
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