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TD Bank, N.A. v. Salce

Court of Appeals of Connecticut

August 22, 2017

TD BANK, N.A.
v.
ANTHONY H. SALCE, JR., ET AL.

          Submitted on briefs May 19 2017

          James M. Nugent and James R. Winkel, filed a brief for the appellant (named defendant).

          Patrick M. Fryer, filed a brief for the appellee (plaintiff).

          Alvord, Mullins and Bear, Js.

         Syllabus

         The plaintiff bank, in 2014, sought to recover on a promissory note executed by the parties in 2008, claiming that the defendant S had defaulted under the terms of the note. The return of service stated that the marshal left the writ, summons, complaint, affidavit, and direction for attachment at S's usual place of abode in Fairfield. That same day, pursuant to the statute (§ 52-59b [c]) governing service of process over nonresidents, the marshal also left two copies of those same documents with the Secretary of the State, and mailed a copy of them, via certified mail, return receipt requested, to S's Florida residence. In November, 2014, S filed a motion to dismiss for lack of personal jurisdiction, which the trial court denied. The plaintiff thereafter filed a motion for summary judgment, which was granted by the court in March, 2016, as to liability only. In June, 2016, after conducting a hearing in damages, the court rendered judgment for the plaintiff, ordering recovery against S for $548, 557.79 in damages, from which S appealed to this court.

Held:

         1. The trial court did not err in denying S's motion to dismiss for lack of personal jurisdiction due to insufficient service of process, the plaintiff having met its burden of demonstrating that service of process was effectuated pursuant to § 52-59b (c); contrary to S's claim, under § 52-59b (c), there is no requirement that S actually received the documents constituting process, and the marshal's affidavit here stated that service was made upon S, pursuant to § 52-59b (c), by leaving two true and attested copies of the process with the Secretary of the State, and sending, via certified mail, return receipt requested, a true and attested copy of the process to S's Florida address.

         2. S could not prevail on his claim that the trial court improperly rendered summary judgment in favor of the plaintiff because S's special defense of promissory estoppel, which alleged that the plaintiff was estopped from prosecuting this action because it had failed or refused to issue promised documents after agreeing to a note modification, raised a genuine issue of material fact: in support of its conclusion that S had not raised genuine issues of material fact concerning the elements of promissory estoppel or reliance, the trial court noted that S had stopped making payments in 2011, that the settlement discussions between the parties held three years later in 2014 were merely a promise to negotiate, and that there was no written document that indicated that the note ever became part and parcel to any settlement, and the defendant having failed to bring forward any evidentiary facts or substantial evidence outside of the pleadings from which the material facts alleged in the pleadings could be inferred, S failed to establish the existence of a disputed issue; furthermore, because S did not dispute the plaintiff's claim that S initially stopped making payments on the note in 2011, he could not successfully assert as a genuine issue of material fact that he stopped making his payments in 2014 in reliance on an alleged loan modification agreement offered or discussed for the first time in that year.

         Procedural History

         Action to recover on a promissory note, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the defendant John J. Quinn was defaulted for failure to appear; thereafter, the court, Radcliffe, J., granted the plaintiff's motion for judgment as to the defendant John J. Quinn; subsequently, the court, Hon. Richard P. Gilardi, judge trial referee, denied the named defendant's motion to dismiss; there- after, the named defendant filed a counterclaim and special defenses; subsequently, the court, Radcliffe, J., granted in part the plaintiff's motion to strike; thereafter, the court, Radcliffe, J., granted in part the plaintiff's motion for summary judgment as to liability on the complaint and the counterclaim; subsequently, following a hearing in damages, the court, Hon. Edward F. Stodolink, judge trial referee, rendered judgment for the plaintiff, from which the named defendant appealed to this court; subsequently, the court, Hon. Richard P. Gilardi, judge trial referee, issued an articulation of the decision denying the named defendant's motion to dismiss. Affirmed.

          OPINION

          PER CURIAM

         In this action seeking to collect on a promissory note, the defendant, Anthony H. Salce, Jr., [1]appeals from the judgment of the trial court, Hon. Edward F. Stodolink, judge trial referee, rendered in favor of the plaintiff, TD Bank, N.A. On appeal, the defendant claims that (1) the court, Hon. Richard P. Gilardi, judge trial referee, erred in denying his motion to dismiss by improperly placing the burden of proof on him to establish a lack of personal jurisdiction due to ineffective service of process; and (2) the court, Radcliffe, J., erred in granting summary judgment as to liability in favor of the plaintiff because the defendant's second special defense was viable. We disagree and, accordingly, affirm the judgment of the court.

         A review of the record reveals the following facts. On April 18, 2008, the parties executed a revolving term promissory note (note) in which the defendant promised to repay the plaintiff $500, 000 with interest. The note contained default and demand provisions. In a letter dated July 11, 2014, the plaintiff stated that the defendant was in default ...


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