Gregori v. Ganser

• Decision Date: 05 July 2017
• Docket Number: FBTCV166059135S
• Court: Connecticut Superior Court
• Parties: Diana Gregori v. Elyssa Ganser

Diana Gregori v. Elyssa Ganser

No. FBTCV166059135S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

July 5, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION TO DISMISS

Richard E. Arnold, J.

The defendant has filed a motion to dismiss dated October 12 2016, and an amended motion to dismiss dated May 26, 2017. The defendant claims that the underlying action should be dismissed due to insufficient service of process and has also alleged the action was not commenced within the applicable statute of limitations. The defendant has filed a supporting memorandum of law. The plaintiff has filed her objection and also has filed a memorandum of law. On October 12, 2016, the court (Kamp, J.) reviewed the motion to dismiss and ordered an evidentiary hearing to resolve factual questions not apparent on the face of the record before the court. The hearing was scheduled for May 19, 2017, and thereafter was continued to June 29, 2017, when the court (Arnold, J.) heard testimony from the defendant and received three full exhibits from the defendant.

The defendant's motion to dismiss alleges a lack of personal jurisdiction, as well as, a lack of subject matter jurisdiction. " A motion to dismiss . . . properly attacks the jurisdiction of the court . . . [It] admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Citations omitted internal quotation marks omitted.) Ferreira v Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001). " A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court . . . The grounds which may be asserted in this motion are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." (Citation omitted.) Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). " [W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts." (Citations omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).

" [A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Alldred v. Alldred, 132 Conn.App. 430, 434, 31 A.3d 1185 (2011), cert. dismissed, 303 Conn. 926, 35 A.3d 1075 (2012). " [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). " Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack or personal jurisdiction . . . Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Id., 401.

A statute of limitations defense " must be specially pleaded and cannot be raised by a [motion to dismiss.]" Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless " [w]here . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite . . ." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993). See also, Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).

" [O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense . . ." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344 n. 12, 890 A.2d 1269 (2006). Nevertheless, " [when] . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation . . . but rather is a limitation on the liability itself, and not of the remedy alone . . ." State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012). General Statutes § 22-357 does not contain within its text a specific statute of limitations. Rather, a statutory cause of action, under section 22-357, for injuries done by dog is governed by section 52-577 providing for a three-year statute of limitations applicable to action founded upon tort. Gretkowski v. Coppola, 26 Conn.Supp. 294, 222 A.2d 41 (1966). Therefore, the use of a motion to dismiss pleading the statute of limitations would ordinarily be improper. The appropriate challenge is by way of a properly pleaded special defense. Worth v. Commissioner of Transportation, 135 Conn.App. 506, 515 n.16, 43 A.3d 199, cert. denied, 305 Conn. 919, 47 A.3d 389 (2012). Nevertheless, " [o]ur Supreme Court has held that a trial court may properly consider a motion to dismiss in such circumstances when the plaintiff does not object to the use of the motion to dismiss." (Internal quotation marks omitted.) Id. In this matter, there is no objection by the plaintiff to the defendant's use of a motion to dismiss, so the court will proceed to address the issue.

Factual Findings

The record reveals that the plaintiff filed the underlying writ, summons and complaint, dated July 25, 2016, bearing a return date of September 13, 2016. The complaint alleges that the plaintiff was attacked by a dog owned or kept by the defendant at the premises known as The action is brought pursuant to General Statutes § 22-357.^[1] The state marshal's return of service states that the " foregoing writ was placed in my hands for service on July 25, 2016." The state marshal made abode service on the defendant on August 5, 2016, by leaving copies of the original writ, summons and complaint and statement of demand at three different addresses. Abode service was made at: (1) 9 Windsor Road, Darien, Connecticut; (2) 137 Hollow Tree Ridge Road, Apt. 1412, Darien, Connecticut; and (3) 401 Silver Creek Lane, Norwalk, Connecticut. The marshal then attested and signed his signature on the return of service. The return of service was filed with the court on September 6, 2016. The defendant filed her self-represented appearance on September 14, 2016, listing her address as 1401 N. Taft Street Apt. 112, Arlington, Virginia. Thereafter, she filed a motion to dismiss stating that there was a lack of personal jurisdiction due to improper service; there was a prior pending action; non-compliance with the applicable statute of limitations; and that she was not the owner and/or keeper of the dog which allegedly attacked and bit the plaintiff. Subsequently, the defendant retained legal counsel, who on behalf of the defendant filed the amended motion to dismiss, which also alleges insufficient service of process and a violation of the statute of limitations.

On July 25, 2013, the date of the incident, the defendant a college student was residing with her parents and family members at 9 Windsor Road, Darien Connecticut, on July 25, 2013. During the college school year, the defendant was a student at Pennsylvania State University (" Penn State") and would reside on campus. However, during school vacations and summer vacation the defendant would return to reside with her parents at the family home, which she considered her permanent residence.^[2] Upon her graduation from college in May 2016, the defendant moved to 516 Silverbark Court, Millersville, Maryland on June 11, 2016, to reside at the home of her boyfriend's parents and commenced employment. Nonetheless, she testified that she still considered Connecticut her permanent address and residence and considered the Maryland address as a temporary address. On or about August 19, 2016, the defendant moved from Maryland to 1401 N. Taft Street, Apt. 112, Arlington, Virginia, and continues to reside there, while working in the Washington, D.C. metropolitan area. The defendant has submitted three exhibits to establish her residency in Maryland and later in Virginia.^[3] However, the, defendant maintains and continues t use her Connecticut driver's license and Connecticut phone number.^[4]

The defendant first learned about the service of the writ, summons and complaint from her mother, who was residing at 137 Hollow Tree Ridge Road, Darien, Connecticut, one of the addresses noted on the state marshal's return of service.^[5] As noted earlier herein, the return date for this action was September 13, 2016. The defendant filed her self-represented appearance on September 14, 2016. Within thirty days of filing her appearance, she filed the subject motion to dismiss.

Discussion

A usual place of abode has been defined as a place of residence within the state. 1 E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997) § 19, p. 40. It is well established, however, that " [o]ne may have two or more places of residence within a [s]tate, or in two or more [s]tates, and each may be a...