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Andros v. Czerwinski

Superior Court of Connecticut, Judicial District of New Britain, New Britain

August 10, 2015

Holly Andros
v.
Frank Czerwinski

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS #105

Cynthia K. Swienton, J.

The defendant, Frank Czerwinski, has moved to dismiss the plaintiff's complaint dated March 24, 2015, because the court lacks personal jurisdiction over him due to improper service of process.

FACTUAL BACKGROUND

This action arises out of a motor vehicle accident that occurred on June 7, 2013, in Meriden, Connecticut. The plaintiff, Holly Andros, alleges that she was operating her motor vehicle when the defendant, Frank Czerwinski, made a left-hand turn into her lane of travel, and she was unable to stop her vehicle in time to avoid a collision with his vehicle.

The plaintiff then filed this action on April 6, 2015. In the return of service dated March 26, 2015, attached to the complaint, the state marshal states that she " made diligent search throughout [her] precincts to locate the within named defendant, Frank Czerwinski, at 341 Spruce Brook Road, Berlin, Connecticut, [1] and was advised by the people that lived there that he had moved." The return further states that on March 30, 2015, the marshal left a copy of the writ, summons at the office of the Commissioner of Motor Vehicles, 60 State Street, Wethersfield, Connecticut. Then on April 1, 2015, the marshal " deposited at the Plainville post office via certified mail, postage paid, return receipt requested, a true and attested copy" of the original writ, summons and complaint, addressed to Frank Czerwinski, at 341 Spruce Brook Road, Berlin, Connecticut, 06037.

The marshal's supplemental return dated April 13, 2015, states that she received the certified receipt and envelope addressed to the defendant at the 341 Spruce Brook Road, Berlin, Connecticut, address--" Unable to forward."

The defendant filed a motion to dismiss on June 9, 2015, together with a memorandum of law, and an affidavit of Frank Czerwinski. In his affidavit, the defendant states that on March 26, 2015, " 341 Spruce Book [sic] Road, Berlin, CT 06037 was not [his] usual place of abode, " and " [s]ince at least December 1, 2013, upon until the present, [he has] owned no real estate in Connecticut." He goes on to state in his affidavit that he has been a resident of Florida since September 2012. Furthermore, on June 7, 2013, the date of the accident, the car he was operating was registered in the state of Florida, with a Florida registration plate, and he was operating with a Florida driver's license. " At no time was I ever served a copy of the plaintiff's summons or complaint." (Memorandum in support, Schedule A--Affidavit.)

The defendant contends that the court does not have personal jurisdiction over him because he was not properly served pursuant to General Statutes § 52-62, which governs service of process upon nonresidents in motor vehicle accidents, because he was not served at his " last known address."

The plaintiff filed her objection and the court heard argument on the motion.

DISCUSSION

" A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). " Although the filing of an appearance on behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims, [a]ny defendant wishing to contest the court's jurisdiction, may do so . . . by filing a motion to dismiss within thirty days of the filing of an appearance." (Citation omitted; internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002). See Practice Book § 10-30.

" Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss . . . If a defendant challenges the court's personal jurisdiction, the plaintiff bears the burden of providing the court's jurisdiction . . . [Furthermore], a motion to dismiss admits all facts well pleaded and invokes supporting affidavits that contain undisputed facts." (Citation omitted; internal quotation marks omitted.) Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825-26, 917 A.2d 959 (2007). " 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 ." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). " One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003).

" Proper service of process is not some mere technicality. Proper service of process gives a court power to render a judgment which will satisfy due process under the 14th amendment of the federal constitution and the equivalent provisions of the Connecticut constitution and which will be entitled to recognition under the full faith and credit clause of the federal constitution." (Internal quotation marks omitted.) Hibner v. Bruening, 78 Conn.App. 456, 458, 828 A.2d 150 (2003). " [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, 101-02, 733 A.2d 809 (1999).

Proper service of an out-of-state nonresident must be made pursuant to General Statutes ...


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