Pitchell v. City of Hartford

• Decision Date: 23 September 1997
• Docket Number: No. 16267,16267
• Citation: 700 A.2d 1386,46 Conn.App. 799
• Court: Connecticut Court of Appeals
• Parties: John J. PITCHELL v. CITY OF HARTFORD et al.

Page 1386

700 A.2d 1386

46 Conn.App. 799

John J. PITCHELL v. CITY OF HARTFORD et al.

No. 16267.

Appellate Court of Connecticut.

Argued May 2, 1997.

Decided Sept. 23, 1997.

Timothy Brignole, Hartford, for appellant (plaintiff).

Henry C. Ide, Avon, for appellee (defendant Gregory Sargis).

Before FOTI, LAVERY and SCHALLER, JJ.

SCHALLER, Judge.

The plaintiff, John J. Pitchell, appeals from the judgment of the trial court dismissing his action against the defendant Gregory Sargis, a police officer in the city of Hartford, on the ground of insufficient service of process. The plaintiff also appeals from the decision of the trial court granting Sargis' motion to open the default judgment entered on October 30, 1995. We affirm the judgment of the trial court.

The following facts are relevant to a determination of this case. The plaintiff, by writ, summons and complaint dated May 31, 1994, brought suit against Sargis, James F. Callan, also a Hartford police officer, and the city of Hartford (city). The plaintiff alleged, as to Sargis, that Sargis was negligent in failing to prevent Callan from shooting him in the course of an incident on June 19, 1987. The return date of the action was June 28, 1994. The plaintiff attempted to make service on Sargis under General Statutes § 52-59b (c) ¹ by having the sheriff leave a copy of the writ, summons and complaint with the secretary of the state and by sending a certified letter to Sargis at an address in Arizona where the plaintiff believed he was living. The certified letter was returned unopened with a notation "Return to Sender, No Forward Order on File, Unable to Forward."

On June 28, 1994, the law firm of Halloran & Sage filed an appearance on behalf of "all defendants," namely, the city and the two individual defendants. Three days later, on July 1, 1994, Halloran & Sage filed an amended appearance, on behalf of the city alone. On July 5, 1994, the plaintiff moved for a default for failure to appear as to Sargis and Callan. The motion was accompanied by a military affidavit dated July 5, 1994, indicating that Sargis was employed as a police officer for the city of Phoenix, Arizona, and resided there. That motion was denied on July 7, with a notation suggesting that he "move for a statutory continuance or for providing of actual notice of out-of-state defendant."

On October 27, 1994, the plaintiff moved for a default against Sargis for failure to appear. The motion was denied. Shortly thereafter, on November 9, 1994, Halloran & Sage moved to withdraw its appearance on behalf of Sargis and Callan. Halloran & Sage asserted, in essence, that the sole basis for the motion was that its original appearance on behalf of the two individuals had been an error because it would be a conflict of interest to represent them. That motion was accompanied by a certification from an attorney in the law firm that Sargis had been notified of the pendency of the motion and of his rights pursuant to Practice Book § 77(d) ² by a notice mailed to him at 3202 West Bell Road, apartment 2225, Phoenix, Arizona. ³ The trial court, Langenbach, J., granted the motion to withdraw on November 21, 1994, relying on the documents provided by Halloran & Sage, which included the certification that Sargis had been notified at his address in Arizona. On August 7, 1995, the plaintiff filed a motion for default for failure to appear against Sargis. In that motion, the plaintiff twice asserted that the original appearance by Halloran & Sage had been "in error." Sargis was defaulted for failure to appear on August 11, 1995. Judgment was rendered against him in the amount of $1,750,000 on October 30, 1995, after a hearing in damages. Notice of the judgment was sent to Sargis at the Arizona address on November 8, 1995. The notice was returned to the sender as undelivered by the postal service.

On February 23, 1996, Sargis filed a motion to open the judgment, which the trial court, Berger, J., granted on April 15, 1996. On May 10, 1996, Sargis filed a motion to dismiss alleging that he resided in Connecticut at the time of attempted service of the complaint and, therefore, the process was insufficient. On July 22, 1996, the trial court, Langenbach, J., granted the defendant's motion to dismiss. On August 13, 1996, the plaintiff filed a motion for articulation of both Judge Berger's April 15, 1996 ruling and Judge Langenbach's July 22, 1996 ruling. Judge Berger denied the plaintiff's motion as "untimely." On September 24, 1996, Judge Langenbach issued the following articulation: "The motion to dismiss was granted because the defendant Sargis was a resident of Connecticut and had been so since March of 1993. Therefore, the attempted service on him in June of 1994 when he had been a Connecticut resident for over one year by leaving a copy of the writ, summons and complaint with the Secretary of the State and by certified mail to an address in Arizona was ineffective."

I

The plaintiff first claims that the trial court, Berger, J., improperly granted the motion to open the default judgment. The plaintiff failed to seek review of the trial court's denial of the motion for articulation. Accordingly, there is no basis for our reviewing that decision. Because the plaintiff failed to provide us with an adequate record, we decline to afford review of his claim. See Dime Savings Bank of Wallingford v. Cornaglia, 33 Conn.App. 549, 553-56, 636 A.2d 1370 (1994); Holmes v. Holmes, 32 Conn.App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993); Practice Book §§ 4061, 4051, 4054, and 4183. ⁴

II

The plaintiff next claims that the trial court improperly dismissed the action. In support of his claim, the plaintiff argues that (1) Sargis was adequately notified because he was served at the address last known to the plaintiff and to the attorneys who appeared for him, (2) the law of the case established Sargis' last known address, (3) any insufficiency was waived by the filing of an appearance by Halloran & Sage on behalf of Sargis, and (4) Sargis had an affirmative obligation to notify his counsel or other litigants of his whereabouts. We are not persuaded.

We first address the plaintiff's claim that Sargis was adequately notified because he was served at the address last known to the plaintiff and to the attorneys who appeared for him. In granting Sargis' motion to dismiss, the trial court found that, at the time of attempted service of the complaint, Sargis was a resident of Connecticut and had been a resident of this state for more than one year. In support of this finding, the trial court had before it uncontested evidence in the form of an affidavit of Sargis that stated that he had returned to Connecticut in March of 1993 and was a resident of Connecticut in 1994 when the plaintiff attempted service pursuant to § 52-59b (c). The trial court also had before it the unopened certified letter marked "unable to deliver" that demonstrated that the attempted service by certified mail was ineffective. "The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.... We cannot retry the facts or pass on the credibility of witnesses.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed...." (Citations omitted; internal quotation marks omitted.) Tyler's Cove Assn., Inc. v. Middlebury, 44 Conn.App. 517, 527-28, 690 A.2d 412 (1997). The plaintiff has failed to show that the trial court's findings as to Sargis' Connecticut residency or the failure to serve him in Connecticut were clearly erroneous. ⁵

Moreover, it is undisputed that no service was made on the defendant in Connecticut and that the only attempted service was pursuant to § 52-59b (c) at an address in Arizona. "[General Statutes § 52-59b (c) ] expressly applies only to nonresidents of this state." White-Bowman Plumbing & Heating, Inc. v. Biafore, 182 Conn. 14, 16, 437 A.2d 833 (1980). Because § 52-59b (c) applies only to service on nonresidents, that statute did not authorize service in this case. The defendant, as a Connecticut resident, could be served effectively only in this state. The plaintiff's argument that Sargis was served at a last known out-of-state address is, therefore, unavailing.

We next address the plaintiff's argument that the law of the case established Sargis' address to be in Arizona at the time of service. We are not persuaded. The crucial time for determining whether Sargis was a resident of Connecticut is the time of service. The allowance of the withdrawal by counsel, implying that Sargis had been properly notified of Halloran & Sage's application to withdraw by a notice mailed to an Arizona address, occurred in November, five months after the attempted service. That determination, which was not challenged, related to Sargis' whereabouts as of November, not June. The adequacy of notification of the application to withdraw is not an issue here. The trial court's granting of the motion to withdraw did not constitute the law of the case with respect to the adequacy of the initial service.

We next address the plaintiff's argument that the appearance by Halloran & Sage constituted a waiver of Sargis' claim of ineffective service. The motion to withdraw was premised on a mistake, namely, that Halloran & Sage "sought to represent only the city of Hartford and not the other defendants, Gregory Sargis and James F. Callan," because that would "present a conflict of interest." In allowing the withdrawal, the trial court did not file a memorandum of decision. Although the court failed to disclose its reasoning in permitting the withdrawal, we conclude that it acted on the basis of the sole ground asserted...