Jimenez v. Derosa

• Decision Date: 22 July 2008
• Docket Number: No. 28034.,28034.
• Court: Connecticut Court of Appeals
• Parties: Diego JIMENEZ et al. v. David DeROSA.

951 A.2d 632

109 Conn.App. 332

Diego JIMENEZ et al. v. David DeROSA.

No. 28034.

Appellate Court of Connecticut.

Argued April 21, 2008.

Decided July 22, 2008.

David C. Pite, with whom, on the brief, was Alan E. Silver, New Haven, for the appellants (plaintiffs).

Alfred J. Onorato, New Haven, for the appellee (defendant).

FLYNN, C.J., and ROBINSON and PETERS, Js.

PETERS, J.

A default judgment must be set aside if the defaulted defendant establishes that the court did not have personal jurisdiction to render the judgment against him. Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 195-96, 629 A.2d 1116 (1993). In this case, the defendant challenged the validity of a default judgment on the ground that he had been served by abode service at an address where he was no longer residing. Finding that the service had been improper, the trial court granted the defendant's motions to set the default judgment aside and to dismiss the action. In their appeal, the plaintiffs argue that the service was adequate and that the defendant's motions challenging the validity of the judgment and the cause of action were untimely. We disagree and affirm the judgment of the trial court.

The record discloses the following relevant facts and procedural history. In January, 2003, the plaintiffs, Diego Jimenez and Luz Jimenez, commenced a negligence action by serving the defendant, David DeRosa, by abode service.¹ Their action was based on an allegation that the defendant had injured Diego Jimenez in an automobile accident. A state marshal served the defendant by leaving process at an address in Northford that had been the defendant's home and that continued to be listed in the records of several government agencies as his residence. The defendant was defaulted for failure to appear, and, on July 17, 2003, the court, Hon. William L. Hadden, Jr., judge trial referee, after a hearing in damages, rendered a judgment against the defendant in the amount of $19,182. After issuance of notice of the judgment, the plaintiffs filed a return of notice, certifying that a copy of the judgment had been mailed to the defendant at the Northford address.

More than two years later, the defendant moved to set the default judgment aside and to dismiss the action on the ground of ineffective service of process.² In these proceedings, he alleged that the abode service had been ineffective because he had vacated the Northford property in September, 2001, sixteen months prior to the service.

In the interval between the final hearing on the defendant's motions and the trial court's decision on the motions, the plaintiffs assigned their default judgment and lien to a third party, Lienfactors, LLC. On August 23, 2006, without having been notified of the assignment, the court, Hon. David W. Skolnick, judge trial referee, found the facts to be as alleged by the defendant and granted his motions to set the default judgment aside and to dismiss.

The plaintiffs have appealed. They claim that, contrary to the trial court's conclusion, (1) the defendant was served properly and (2) the defendant's motions to set aside and to dismiss were untimely. The defendant disputes the validity of the plaintiffs' claims. In addition, he asserts that, due to the plaintiffs' assignment of the default judgment to Lienfactors, LLC, they lack standing to pursue their appeal. We affirm the judgment of the trial court setting aside the default judgment and dismissing the action.

I THE PLAINTIFFS' STANDING TO APPEAL

In light of the plaintiffs' assignment to Lienfactors, LLC, the defendant filed a motion in this court to dismiss the plaintiffs' appeal on the ground that they no longer had standing to pursue it. He has renewed this jurisdictional claim in his brief on appeal.

It is well established that this court has subject matter jurisdiction to hear an appeal only if the appellant has presented a justiciable issue that the appellant has standing to pursue. In re Investigation of the Grand Juror, 188 Conn. 601, 603, 452 A.2d 935 (1982). To demonstrate the requisite standing, however, it is sufficient for the appellant to demonstrate that there is a reasonable possibility, as distinguished from a certainty, that the contested ruling has had an adverse impact on a legally protected interest. Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 370, 880 A.2d 138 (2005).

To enable us to assess the jurisdictional significance of the plaintiffs' assignment of their judgment to Lien-factors, LLC, we remanded this case to the trial court for further factual findings. See Practice Book § 60-2(9). After a hearing, the trial court determined that the plaintiffs' assignment to Lienfactors, LLC, would "fail" if this court were to affirm the trial court's judgment in favor of the defendant. It based this determination on a clause in the assignment that states: "Assignor represents that they have a validly binding judgment and judgment lien...."

We must decide whether the plaintiffs' assignment deprives us of subject matter jurisdiction to hear their appeal. We are persuaded that it did not. Like the trial court, we find it significant that the assignment included a representation by the plaintiffs that the assigned judgment was valid and enforceable. This representation was the functional equivalent of a warranty imposing contingent liability on the plaintiffs to reimburse the assignee if we uphold the trial court's decision on the defendant's motions. See Cooper v. Sagert, 111 Or. 27, 33, 223 P. 943 (1924) (if assigned judgment is set aside, assignee may recover for failure of consideration); cf. Hall v. Mathewson, 192 Wash. 651, 662-63, 74 P.2d 209 (1937) (no warranty of collectibility). On this record, because there is a reasonable possibility that, unless we reverse, the judgment of the trial court will have an adverse impact on a legally protected interest of the plaintiffs, the plaintiffs have standing, and we have jurisdiction to hear their appeal.

II

We turn now to the merits of the plaintiffs' claims on appeal. The plaintiffs challenge the validity of the trial court's decision to set aside the default judgment and to dismiss the case for two principal reasons. The plaintiffs maintain that the trial court improperly determined that (1) the default judgment had been rendered without personal jurisdiction over the defendant and (2) the defendant's motions were not untimely. We disagree with the plaintiffs.

A Abode Service

The Superior Court has no authority to render a judgment against a person who was not properly served with process. Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., supra, 227 Conn. at 195-96, 629 A.2d 1116. Without challenging this fundamental principle of law, the plaintiffs argue that the trial court misapplied it under the circumstances of this case because (1) abode service was proper in light of the defendant's failure to inform government agencies that he was no longer a resident at the Northford address and (2) the defendant had actual timely notice of the negligence action, both at its inception and after the rendering of the default judgment. We are not persuaded.

As a preliminary matter, we set forth the standard of review governing the plaintiff's claims. "A challenge to the jurisdiction of the court presents a question of law.... Our review of the court's legal conclusion is, therefore, plenary.... Our review of the trial court's factual findings is governed by the clearly erroneous standard of review." (Citation omitted; internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 713, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).

The legal principles that guide our resolution of the plaintiffs' claims are equally well established. "[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.) Kim v. Magnotta, 249 Conn. 94, 101-102, 733 A.2d 809 (1999). "[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." (Citations omitted; internal quotation marks omitted.) Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003). "A proper officer serving process must comply with the provisions of [General Statutes] § 52-57(a), which require that process be served by leaving it with the defendant, or at his usual place of abode.... Abode service is not effective if it is left at an address that is not the usual address of the party to be served, and an action commenced by such improper service must be dismissed." (Citation omitted; internal quotation marks omitted.) Hibner v. Bruening, 78 Conn.App. 456, 463, 828 A.2d 150 (2003); see also Practice Book § 10-13.

For service pursuant to § 52-57(a), the "usual place of abode" presumptively is the defendant's home at the time when service is made. Grant v. Dalliber, 11 Conn. 234, 237-38 (1836). Whether a particular locale is the usual place of abode is a question of fact. Collins v. Scholz, 34 Conn.Supp. 501, 502, 373 A.2d 200 (1976). "When, however, the defendant is a resident of Connecticut who claims that no valid abode service has been made ... that would give the court jurisdiction over [the defendant's] person, the defendant bears the burden of disproving personal jurisdiction.... When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise." (Internal quotation marks omitted.) Tax Collector v. Stettinger, 79 Conn.App. 823, 825, 832 A.2d...