Weil v. Miller

• Decision Date: 17 November 1981
• Citation: 441 A.2d 142,185 Conn. 495
• Court: Connecticut Supreme Court
• Parties: James L. WEIL v. Cheryl MILLER.

Page 142

441 A.2d 142

185 Conn. 495

James L. WEIL v. Cheryl MILLER.

Supreme Court of Connecticut.

Argued Oct. 16, 1981.

Decided Nov. 17, 1981.

Herbert V. Camp, Jr., Ridgefield, for appellant (plaintiff).

Richard C. Jacobson, New Britain, with whom, on the brief, was Jonathan A. Mellitz, Fairfield, for appellee (defendant).

Before SPEZIALE, PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.

PETERS, Associate Justice.

This case challenges the constitutionality of abode service under General Statutes § 52-57. The plaintiff, James Leonard Weil, sued the defendant, Cheryl Miller, d/b/a The Tapestry Oriental Dance Troupe, to set aside a default judgment that Miller had earlier procured against him, to enjoin execution on the judgment and to vacate attachment and judgment liens on his real property. After a hearing on an order to show cause, the trial court rendered a judgment against the plaintiff from which he appeals.

In its memorandum of decision the trial court found the following facts, none of which is challenged on this appeal. Because of difficulties between the parties which arose in August 1978, the defendant brought an action against the plaintiff for damages. The defendant's attorney wrote the plaintiff threatening suit; the plaintiff received this letter. The defendant thereafter initiated her suit by an attachment and by a writ served on the plaintiff on December 13, 1978, through abode service at his place of residence in Branford. ¹ The deputy sheriff served process by pushing open the rear door of the premises and leaving the writ near a kitchen stove. Although the abode service complied with the requirements of General Statutes § 52-57, the defendant denied having received this writ.

In the earlier action between the defendant and the plaintiff, a default was entered against the plaintiff on February 9, 1979. A hearing in damages resulted, on May 30, 1979, in a judgment of $7000 against the plaintiff. From December 26, 1978 to July 1979, the plaintiff was in Florida. The plaintiff denied receipt of any notice of the default proceedings.

The present action appears to have resulted from the defendant's levy of an execution on the plaintiff's property. This execution was issued on October 3, 1979, more than four months after the entry of the judgment against the plaintiff. Claiming that this was his first notice of the previous litigation, the plaintiff filed his action on December 18, 1979.

The plaintiff's appeal raises three issues: the constitutionality of General Statutes § 52-57 ² permitting abode service; the constitutionality of General Statutes § 52-212a ³ limiting to four months the period when default judgments may be opened; and the constitutionality of Practice Book §§ 352 and 122 ⁴ allowing notice of a motion for default to be sent by ordinary rather than by certified mail. Since the record fails to reveal that the latter two issues were raised in the trial court, there is no need for us to consider them, and we decline to do so. Practice Book § 3063. ⁵ State v. Cuvelier, 175 Conn. 100, 111, 394 A.2d 185 (1978); Rybinski v. State Employees' Retirement Commission, 173 Conn. 462, 466, 378 A.2d 547 (1977); cf. State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973).

Resolution of the first issue is complicated by the imperfect state of the record before us. The parties' arguments on the constitutionality of abode service proceed on two diametrically opposite factual premises. The plaintiff argues that abode service is constitutionally defective because it fails to provide adequate notice and hence violates the requirements of procedural due process. ⁶ He distinguishes Smith v. Smith, 150 Conn. 15, 22, 183 A.2d 848 (1962), in which this court upheld the constitutionality of § 52-57, by asserting that the defendant there had actual notice while he, the plaintiff herein, never received adequate notice of the proceedings in the Miller action and hence was deprived of a timely opportunity to be heard. The defendant maintains, however, that the plaintiff's constitutional attack on § 52-57 is unwarranted because the plaintiff did in fact receive notice, which he chose to ignore, at a time when the earlier judgment against him could readily have been opened. Although there is conflicting evidence in the transcript on the disputed fact of whether the plaintiff received notice of the earlier proceedings at a relevant time, the trial court made no finding. ⁷

It is clear that the disputed fact about notice is crucial to the plaintiff's case. The plaintiff nowhere argues that he would now be entitled to raise his constitutional claim relating to the abode service statute if he had received actual notice of the abode service and of the subsequent legal proceedings within four months after the entry of the default judgment against him. On the contrary, he complains that the defendant's delay in seeking execution on her judgment until more than four months had elapsed was an artful maneuver designed to keep him from taking advantage of the four month period for the opening of judgments provided by General Statutes § 52-212a. ⁸

The centrality of notice in fact to the constitutional issue of procedural due process is illuminated by a comparison of this case with Kron v. Thelen, 178 Conn. 189, 197, 423 A.2d 857 (1979). In Kron, this court held that General Statutes § 45-289 must be construed to require a probate court to give notice of its decree before the statutory appeal period from probate court judgments can begin to run. This holding was compelled by "(f)undamental tenets of due process, (which), require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses." Id., 193. Hanson v. Denckla, 357 U.S. 235, 245, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 385, 362 A.2d 778, vacated, 423 U.S. 809, 96 S.Ct. 20, 46 L.Ed.2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976); City Trust Co. v. Bulkley, 151 Conn. 598, 601, 201 A.2d 196 (1964); Proctor v. Sachner, 143 Conn. 9, 17, 118 A.2d 621 (1955). In Kron, however, the party complaining that the Probate Court proceedings deprived her of her constitutional rights did not have actual notice. On the contrary, she had been erroneously informed by the court that no action had as yet been taken. The finding that she lacked notice in fact was an essential premise of her challenge to the constitutionality of § 45-289.

According to well-established principles, a plaintiff who challenges the constitutionality of a statute must prove that the statute has adversely affected a constitutionally protected right "under the facts of his particular case and not merely under some possible or hypothetical set of facts not proven to exist." Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 471, 217 A.2d 698 (1966); State v. Cuvelier, 175 Conn. 100, 111-12, 394 A.2d 185 (1978); Gentile v. Altermatt, 169 Conn. 267, 307, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 631 (1976); Kellems v. Brown, 163 Conn. 478, 483, 313 A.2d 53, appeal dismissed, 409 U.S. 1099, 93 S.Ct. 911, 34 L.Ed.2d 678 (1972); Adams v. Rubinow, 157 Conn. 150, 152-53, 251 A.2d 49 (1968). Furthermore, a person contesting a statute's constitutionality has a heavy burden to establish its invalidity beyond a reasonable doubt. Roundhouse Construction Corporation v. Telesco Masons Supplies Co., supra, 168 Conn. 385, 362 A.2d 778; Kellems v. Brown, supra, 163 Conn. 486, 313 A.2d 53; Adams v. Rubinow, supra, 157 Conn. 150, 152, 251 A.2d 49.

On the present state of the record, the plaintiff has not sustained his burden of proof. This court cannot find facts; that function is, according to our constitution, our statute, and our cases, exclusively assigned to the trial courts. Conn.Const., art. V § 1; General Statutes § 51-199; ⁹ Belledeau v. Connecticut Co., 110 Conn. 625, 633, 149 A. 127 (1930); Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 538, 129 A. 527 (1925). Without a finding that the plaintiff had no notice in fact, the plaintiff's attack on the statute permitting abode service must fail.

There is no error.

In this opinion the other Judges concurred.

1 The plaintiff's residence was the area behind the stage and on the second floor of a small theater; no one else resided on the premises.

2 "(General Statutes) Sec. 52-57. MANNER OF SERVICE UPON INDIVIDUALS, MUNICIPALITIES AND CORPORATIONS. 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. Process in civil actions against the following-described classes of defendants shall be served as follows: In actions against a town, upon its clerk, assistant clerk, manager or one of its selectmen; against a city, upon its clerk or assistant clerk or upon its mayor or manager; against a borough, upon its manager, clerk or assistant clerk or upon the warden or one of its burgesses; against a school district, upon its clerk or one of its committee; against other municipal or quasi-municipal corporations, upon its clerk or upon its chief presiding officer or managing agent. In actions against private corporations, service shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in...