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Dahl v. Connor

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

May 25, 2016

Ellen Kirsten Dahl, Successor Executrix of the Estate of Robert A. Dahl
v.
Sara N.B. Connor, Executrix of the Estate of Ann Sale Dahl Opinion No. 133784

          Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Lager, Linda K., J.

          MEMORANDUM OF DECISION RE ENTRY # 102

          LINDA K. LAGER, JUDGE

         This action was brought by the successor executrix of the estate of Robert Dahl against the executrix of the estate of Ann Sale Dahl, with a return date of January 12, 2016. The defendant fiduciary, Sara N.B. Connor (Connor), is a resident of Fiskdale, Massachusetts, and suit was brought against her in her representative capacity only. (Count one, ¶ 5.) The marshal's return of service and supplemental return (entries 100.30 and 101) indicate that Connor was served pursuant to General Statutes § 52-59b on December 17, 2015. Counsel filed an appearance for Connor on January 12, 2016 and moved to dismiss the complaint on the grounds of lack of personal jurisdiction and insufficiency of process and service of process on February 10, 2016. (Entries #102, 103.) The plaintiff filed a memorandum in opposition on March 21, 2016 (entry #104) to which Connor filed a reply on March 24, 2016 (entry #105). The court heard argument on the motion to dismiss on March 28, 2016.

         Connor maintains that service was improper under the long-arm statute, General Statutes § 52-59b, because it does not allow the plaintiff to obtain personal jurisdiction over her as the nonresident executrix of the estate of Ann Sale Dahl, a Connecticut resident and domiciliary at the time of her death, and asserts that the proper means of service was pursuant to General Statutes § § 52-60 and 52-61. The plaintiff maintains that § § 52-60 and 52-61 are not the exclusive means of service on a nonresident executrix and that service was proper under § 52-59b(c). The plaintiff has the burden of establishing personal jurisdiction. Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607, 674 A.2d 426 (1996).

         Sections 52-60 and 52-61[1] provide a method for service of process on nonresident fiduciaries in their representative capacities. Process is served within this state on the probate judge or court in the district in which the fiduciary was appointed and then the judge or court is obliged to forward the complaint to the fiduciary. At oral argument, Connor conceded that § § 52-60 and 52-61 are not necessarily the exclusive means of service on a nonresident fiduciary of a Connecticut estate if there are valid alternative means of service. Her position is that the allegations of this complaint fail to state claims against her personally as a nonresident individual that satisfy the predicates set forth in § 52-59b(a)[2] so that she could be properly served pursuant to § 52-59b(c), which provides for service on the secretary of state as statutory agent, leaving service pursuant to § § 52-60 and 52-61 as the only viable option in this case.

         The essence of the plaintiff's argument is that Connor is transacting business within this state within the meaning of § 52-59b(a)(1) by serving as the fiduciary of a Connecticut estate. The plaintiff has not provided any controlling authority for this proposition and the court could not locate any.

          Gomez v. King, Superior Court, Judicial District of Ansonia-Milford, Docket No. CV054001863 (Sept. 29, 2005, Sequino, J.) [40 Conn. L. Rptr. 57], upon which the plaintiff relies, contains no analysis to support its conclusion that a nonresident administratrix of the estate of a Connecticut decedent was properly served under § 52-59b. In reaching that conclusion, the trial court relied on Anderson v. Schibi, 33 Conn.Supp. 562, 567, 364 A.2d 853 (App.Div. 1976), which did not address the issue raised here. Anderson merely held that when a " complaint clearly alleges a cause of action falling within § 52-59b(a)(2) so that the nonresident defendants are subject to the jurisdiction of our court, " the manner of service on a nonresident defendant does not have to be identical to the manner of service on a resident defendant. Similarly, in Abney v. Abney, Superior Court, Judicial District of Waterbury, Docket No. CV155016811 (Nov. 4, 2015, Roraback, J.) [61 Conn. L. Rptr. 223], also relied on by the plaintiff, the court did not engage in any analysis but simply relied on Gomez. Furthermore, Abney is factually distinct from this case as the plaintiff's complaint alleged claims based on the acts of the non-resident fiduciary and not based on the acts of the decedent. Compare Dehmel v. Dehmel, Superior Court, Judicial District of Waterbury, Docket No. CV145016633 (March 31, 2015, Roraback, J.) (in which the same court analyzed the allegations against and conduct of a nonresident defendant closely to determine that the defendant did not have sufficient contacts within Connecticut to meet any of the predicates of § 52-59b(a)).

         Section 52-59b(a)(1) provides for the exercise of personal jurisdiction over a nonresident individual or the executor of a nonresident individual who " transacts any business within the state." This phrase has been construed to require that the activities which give rise to the plaintiff's claims in the lawsuit " embrace a single purposeful business transaction." Zartolas v. Nisenfeld, 184 Conn. 471, 474, 440 A.2d 179 (1981). The meaning of the term " business" is broad and does not necessarily require a typical commercial transaction. Id.; see Doyle Group v. Alaskans for Cuddy, 146 Conn.App. 341, 349-50, 77 A.3d 880 (2013). However, the litigation has to " arise out of or relate to those [business] activities." Knipple v. Viking Communications, Ltd., supra, 236 Conn. 606, n.6. In deciding this question, the court should not " resort to a rigid formula. Rather, [it should] balance considerations of public policy, common sense, and the chronology and geography of the relevant factors." Zartolas v. Nisenfeld, supra, 184 Conn. 477.

         The claims in this complaint are based on the alleged conduct and activities of the decedent, Ann Sale Dahl, in her capacity as the executrix of the estate of Robert Dahl for breach of fiduciary duty (count one), in her capacity as the agent of Robert Dahl under a durable power of attorney for breach of fiduciary duty and theft (counts two, three, four) and in her individual capacity for tortious interference with expectation of inheritance (count five). The complaint alleges Ann Sale Dahl made unauthorized financial transactions in February 2014 (counts one and two) and December 2013 (count three and four) which resulted in the unlawful transfer of Robert Dahl's assets to accounts within her sole control and that after improperly depleting Robert Dahl's estate she changed the terms of her revocable trust agreement in June 2014, four months after Robert Dahl's death, in a way that reduced the ultimate distribution of funds to Robert Dahl's three biological children (count five).

         Ann Sale Dahl died on January 15, 2015 and Connor was appointed the executrix of her estate by the Hamden-Bethany Probate District. (Count one, ¶ ¶ 3, 5.) The claims described above were filed in that probate action, served on Connor on July 28, 2015 and were subsequently rejected by her. (Count one, ¶ ¶ 6, 7.) That is the only activity which the complaint alleges Connor conducted in Connecticut. While it is purposeful conduct invoking the benefits and protections of Connecticut law, General Statutes § 45a-360, the record is insufficient for the court to conclude that it is a business transaction within the broad meaning of General Statutes § 52-59b(a)(1) and that this litigation arises out of that business transaction.

         Since Connor disputes the sufficiency of this conduct to support personal jurisdiction, the court will give the plaintiff an opportunity to present evidence to meet her burden of proof of establishing personal jurisdiction over Connor. Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 459 A.2d 503 (1983).[3] The hearing will be held at 10:00 a.m. on Wednesday June 15, 2016.

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Notes:

[1]General Statutes ยง 52-60(a) provides, in relevant part: " No appointment of a nonresident of this state as an executor . . . may take effect until the person so appointed has filed . . . a certificate . . . appointing the judge of probate and the judge's successor in office to be his attorney upon whom all process in any ...


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