Garden Mut. Ben. Ass'n v. Levy, 1087

• Decision Date: 18 September 1981
• Docket Number: No. 1087,1087
• Citation: 437 A.2d 141,37 Conn.Supp. 790
• Court: Connecticut Superior Court
• Parties: GARDEN MUTUAL BENEFIT ASSOCIATION v. Richard LEVY, et al.

Page 141

437 A.2d 141

37 Conn.Supp. 790

GARDEN MUTUAL BENEFIT ASSOCIATION v. Richard LEVY, et al.

No. 1087.

Superior Court of Connecticut, Appellate Session.

Argued May 19, 1981.

Decided Sept. 18, 1981.

Shereen F. Edelson, Plainville, for appellant (plaintiff).

Albert D'Antonio, for appellee (defendant).

BIELUCH, Judge.

The plaintiff instituted this action to collect a debt secured by a promissory note on which the maker had defaulted and which the defendants had executed as co-makers and endorsers. On January 16, 1979, the plaintiff served defendant Robert Haymond (hereinafter Haymond) at his "usual place of abode," 61 Norwood Road, West Hartford, Connecticut. Haymond subsequently filed a motion to dismiss the action with supporting affidavits, contending that because West Hartford was not his usual place of abode, this service was insufficient to confer jurisdiction over him.

Although both parties submitted affidavits that disclosed the presence of issues of fact, the trial court granted the motion without an evidentiary hearing. On appeal, this court must decide whether, when considering a motion to dismiss, the trial court must hold an evidentiary hearing prior to determining jurisdictional questions when parties have submitted affidavits which present factual issues.

Section 143 of the Practice Book, 1978, provides that a motion to dismiss "shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits .... (This motion) may be opposed by pleadings, appropriate affidavits and memoranda of law." The motion to dismiss replaces the former plea in abatement. The case law interpreting the procedure of the former plea in abatement is, therefore, particularly instructive in construing a motion to dismiss.

Prior to the 1978 Practice Book revisions, the party opposing a plea in abatement was required to file a responsive pleading. Practice Book, 1963, § 95. The moving party, in turn, bore the burden of alleging and proving those facts which the responsive pleading placed in issue. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 587-88, 409 A.2d 1029 (1979). Failure of the movant to present evidence sufficient to sustain the disputed allegations required the court to overrule the plea. DiCamillo v. Clomiro, 174 Conn. 351, 354, 387 A.2d 560 (1978). Thus, where the plea in abatement raised a factual issue, the court held an evidentiary hearing to ascertain the disputed fact prior to ruling on the plea. 1 Stephenson, Connecticut Civil Procedure (2d ed.) pp. 447-48, § 108e; id. (Supp.1979) pp. 578-79, § 108d.

Disposition of the issue presently before us flows logically from the procedure which formerly governed the plea in abatement. Where affidavits filed by opposing parties present undisputed facts, the court may rule upon the motion without taking additional evidence concerning those facts. This procedure in no way diminishes the right of the parties to present and prove all competent facts in issue within the allegations of their respective pleadings. Moreover, this practice encourages judicial expediency by eliminating evidentiary hearings in those cases where material facts are undisputed. In this regard, the procedure closely parallels that governing disposition of summary judgment motions upon affidavits. Where no genuine issue of material fact exists on a motion for summary judgment, the court is authorized to enter judgment in favor of a moving party whose position comports with applicable law. Practice Book, 1978, § 384.

As with the motion for summary judgment, however, a different practice obtains where there exists a genuine issue of material fact. Affidavits which disclose genuine issues of material fact cannot resolve the factual disputes raised by them. Stephenson, supra,...