Stevens v. Khalily ( 2019 )

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ERIC STEVENS v. EDWARD KHALILY ET AL.
(AC 41801)
DiPentima, C. J., and Alvord and Flynn, Js.
Syllabus
The plaintiff sought to recover damages for, inter alia, intentional infliction
of emotional distress from the defendants E and T, who filed a motion
to dismiss for lack of personal jurisdiction due to improper service of
process as a result of the plaintiff’s failure to serve them at their last
known addresses, and neither of whom was a resident of this state. The
trial court granted the motion to dismiss and rendered judgment in
part thereon, concluding that where, as here, there was a challenge to
personal jurisdiction of nonresident individuals, it was the plaintiff’s
burden to produce evidence adequate to establish such jurisdiction, and
that the plaintiff had failed to use diligent and persistent efforts to
properly serve E and T at their last known addresses. On the plaintiff’s
appeal to this court, held that the trial court properly granted the motion
to dismiss filed by E and T: because there was a dispute as to the
location of the last known addresses of E and T, once their affidavits
raised a factual question challenging the court’s jurisdiction for insuffi-
cient service of process, the burden shifted to the plaintiff to prove the
court’s jurisdiction over the nonresident defendants, the plaintiff did
not cite to any counter authority to disclaim his burden to prove jurisdic-
tion, nor did he provide evidence of his diligent and persistent efforts
to locate the last known addresses of E and T within a reasonable time
of his attempt to serve process on them, as mere notice of the action
is not sufficient to confer personal jurisdiction over a party who has
not been properly served, and the plaintiff failed to account for his
efforts to remain current on the whereabouts of E and T before
attempting service of process to commence this action; accordingly,
because the plaintiff failed to sustain his burden that he properly served
E and T at their respective last known addresses and that he made a
reasonably diligent search to find out their last known addresses, within
a reasonable time, before attempting service of process, the court lacked
personal jurisdiction over E and T.
Argued September 24—officially released December 3, 2019
Procedural History
Action to recover damages for, inter alia, intentional
infliction of emotional distress, and for other relief,
brought to the Superior Court in the judicial district
of Hartford, where the court, Shapiro, J., granted the
motion to dismiss for lack of personal jurisdiction filed
by the named defendant et al. and rendered judgment
in part thereon, from which the plaintiff appealed to
this court. Affirmed.
Norman A. Pattis, for the appellant (plaintiff).
Sarah F. D’Addabbo, with whom was Matthew G.
Conway, for the appellees (defendants).
Opinion
PER CURIAM. The plaintiff, Eric Stevens, appeals
from the judgment of the trial court granting the motion
to dismiss filed by the defendants Tiffany Khalily and
Edward Khalily,1 which was based on lack of personal
jurisdiction due to improper service of process in that
the plaintiff did not serve the defendants at their last
known addresses. Specifically, the plaintiff argues that
the trial court improperly relied on ‘‘conclusory and
self-serving affidavits of the defendants which were
insufficient to rebut the presumption of proper service.’’
We disagree and affirm the judgment of the trial court.
For the first time on appeal, the plaintiff claims that
in assessing his due diligence in determining the defen-
dants’ last known addresses: (1) the court should have
conducted an evidentiary hearing, despite the court’s
finding that he had never requested one; (2) the court
should have considered that the plaintiff is a victim of
a crime; and (3) the defendants have ‘‘fled to parts
unknown.’’ The plaintiff did not raise these issues
before the trial court and we, therefore, decline to
review them for the first time on appeal. See Histen v.
Histen, 98 Conn. App. 729, 737, 911 A.2d 348 (2006).
The following facts are relevant to this appeal. The
plaintiff commenced this matter on October 10, 2017.
On December 20, 2017, the defendants filed a motion
to dismiss the complaint for lack of personal jurisdic-
tion due to insufficient service of process. Neither
defendant in this case is a resident of Connecticut.
The court granted the defendants’ motion to dismiss,
concluding that when there is a challenge to the per-
sonal jurisdiction of nonresident individuals, ‘‘ ‘it [is]
the plaintiff’s burden to produce evidence adequate to
establish such jurisdiction,’ ’’ citing Cogswell v. Ameri-
can Transit Ins. Co., 282 Conn. 505, 515–16, 923 A.2d
638 (2007). The court held that the plaintiff had failed
to meet the statutory requirements of using ‘‘ ‘diligent
and persistent efforts’ ’’; Matthews v. SBA, Inc., 149
Conn. App. 513, 533, 89 A.3d 938, cert. denied, 312 Conn.
917, 94 A.3d 642 (2014); to properly serve the defendants
at their last known addresses. See General Statutes
§ 52-59b (c). This appeal followed.
The plaintiff claims that the trial court improperly
granted the defendants’ motion to dismiss for lack of
personal jurisdiction based solely on the affidavits of
the defendants, asserting that the affidavits were insuffi-
cient to rebut the presumption of proper service. The
defendants counter that the court properly found from
the affidavits that the plaintiff failed to follow the
requirements of § 52-59b.
We first set forth the appropriate standard of review.
‘‘The standard of review for a court’s decision on a
motion to dismiss is well settled. A motion to dismiss
tests, inter alia, whether, on the face of the record, the
court is without jurisdiction. . . . [O]ur review of the
court’s ultimate legal conclusion and resulting [determi-
nation] of the motion to dismiss will be de novo.’’ (Inter-
nal quotation marks omitted.) Cogswell v. American
Transit Ins. Co., supra, 282 Conn. 516.
Although it is generally a defendant’s burden to dis-
prove personal jurisdiction, our Supreme Court has
explained that this burden can shift in two ways. Id.,
515. In particular, the court noted: ‘‘When a motion to
dismiss for lack of personal jurisdiction raises a factual
question which is not determinable from the face of
the record, the burden of proof is on the plaintiff to
present evidence which will establish jurisdiction. . . .
If the defendant challenging the court’s personal juris-
diction is a . . . nonresident individual, it is the plain-
tiff’s burden to prove the court’s jurisdiction.’’ (Citation
omitted; internal quotation marks omitted.) Id.
At issue in this appeal is the requirement, pursuant
to Connecticut’s long arm statute, § 52-59b,2 that the
plaintiff serve the nonresident defendants at their ‘‘last-
known address[es].’’ General Statutes § 52-59b (c). With
respect to this requirement, our Supreme Court has
stated that ‘‘last-known address does not mean the last
address known to the plaintiff but does mean the last
address of the defendant so far as it is known, that is,
by those who under the ordinary circumstances of life
would know it. Unless the defendant has departed for
parts unknown, it means his actual address; if he has
disappeared it means his last address so far as it is
reasonably possible to ascertain it. This address the
plaintiff must learn at his peril and only if the copy is
mailed to it is there a compliance with the statute. . . .
Interpreted in the sense which the legislature intended,
our statute, if complied with, will certainly bring about
a reasonable probability of actual notice of the pen-
dency of the action to the defendant.’’ (Internal quota-
tion marks omitted.) Cadlerock Joint Venture II, L.P.
v. Milazzo, 287 Conn. 379, 393, 949 A.2d 450 (2008).
This court has noted that ‘‘[a] plaintiff must use dili-
gent and persistent efforts . . . to determine the actual
address of the defendant and unless a defendant has
departed for parts unknown, the plaintiff must learn
the defendant’s actual address at his peril.’’ (Citation
omitted; internal quotation marks omitted.) Matthews
v. SBA, Inc., supra, 149 Conn. App. 533.
In support of his motion to dismiss the defendant
Edward Khalily swore in his affidavit that he had left
New York in 2014 and changed his address from that
state, and that he was not registered to vote in that
state or licensed to drive in New York.
In support of her motion to dismiss, the defendant
Tiffany Khalily swore in her affidavit that she moved
from 4 Portico Court, New York, New York, in Novem-
ber, 2016, and has lived at her present address since
January, 2017, where she received forwarded mail.
As previously noted, it is generally the defendant’s
burden to disprove jurisdiction. However, our Supreme
Court held in Standard Tallow Corp. v. Jowdy, 190
Conn. 48, 53–54, 459 A.2d 503 (1983), that ‘‘[t]he general
rule putting the burden of proof on the defendant as
to jurisdictional issues raised is based on the presump-
tion of the truth of the matters stated in the officer’s
return. When jurisdiction is based on personal or abode
service, the matters stated in the return, if true, confer
jurisdiction. . . . There should be no presumption of
the truth of the plaintiff’s allegation of the additional
facts necessary to confer jurisdiction. . . . Placing the
burden on the plaintiff to prove contested factual issues
pertaining to jurisdiction is in accord with rulings in
other states which have addressed the same question.’’
(Citation omitted; internal quotation marks omitted.)
In the present case, because there is a dispute as to
the location of the defendants’ last known addresses,
once the defendants’ affidavits raised a factual question
challenging the court’s jurisdiction for insufficient ser-
vice of process, the burden shifted to the plaintiff to
prove the court’s jurisdiction. Furthermore, because
the defendants are nonresident individuals and they
challenge personal jurisdiction, the burden lies with the
plaintiff to prove the court’s jurisdiction. See Cogswell
v. American Transit Ins. Co., supra, 282 Conn. 515. In
his counter affidavit the plaintiff swore, inter alia, that
he had relied on information from ‘‘common people
[the parties] know,’’ including Jessie Popowich, to help
him locate where his daughter was residing. Popowich
told him in October, 2016, that his daughter resided
with the defendant Tiffany Khalily at 4 Portico Court,
Great Neck, New York. Furthermore, he has had no
contact with the defendant Edward Khalily since 2012,
but was told in the fall of that year that he resided at
845 United Nations Plaza, Unit 77C, New York, New
York. The plaintiff does not cite to any counter authority
to disclaim his burden to prove jurisdiction nor does
he provide evidence of his ‘‘diligent and persistent
efforts’’ to locate the defendants’ last known addresses
within a reasonable time of his attempt to serve process
on the defendants. He simply asserts that because the
defendants received actual notice of the summons and
complaint, he has met the requirements of § 52-59b.
However, this court held in Matthews v. SBA, Inc.,
supra, 149 Conn. App. 539, that a defendant’s ‘‘[m]ere
notice of an action is not sufficient to confer personal
jurisdiction’’ over a party who has not been properly
served. (Internal quotation marks omitted.)
In its memorandum of decision, the trial court stated
that ‘‘[r]egardless of [the] steps that the plaintiff took
to find the defendants’ addresses, even if the court were
to find that the plaintiff’s efforts in 2012 and 2016 were
reasonably diligent, the plaintiff has failed to account
for his efforts to remain current on their whereabouts
before attempting service of process in October, 2017,
to commence this present action. Here, the plaintiff
relied on information that was approximately a year
old for [Tiffany] Khalily and five years old for [Edward]
Khalily. Thus, it appears that the plaintiff relied on old
information without attempting to verify that the
addresses he had were still current. Such reliance indi-
cates that the plaintiff was not reasonably diligent in
attempting to determine the last known addresses of
the defendants. . . . The plaintiff, therefore, has failed
to meet his burden of proving that he used reasonably
diligent efforts to find the defendants’ last known
address[es] and that the court can exercise personal
jurisdiction over them.’’
The record and law support the trial court’s judgment
that it lacked personal jurisdiction over these nonresi-
dent defendants. The plaintiff has failed to sustain his
burden that he properly served the defendants at their
respective last known addresses and that he made a
reasonably diligent search to find out their last known
addresses, within a reasonable time, before attempting
service of process. We, therefore, conclude that the
trial court properly granted the defendants’ motion to
dismiss.
The judgment is affirmed.
1
Although there were other defendants named at trial, only Tiffany Khalily
and Edward Khalily filed the motion to dismiss. We, therefore, refer to them
as the defendants in this opinion.
2
General Statutes § 52-59b (a) provides in relevant part that ‘‘a court may
exercise personal jurisdiction over any nonresident individual . . . who in
person or through an agent: (1) [t]ransacts any business within the state;
(2) commits a tortious act within the state. . .; (3) commits a tortious act
outside the state causing injury to person or property within the state. . . .;
(4) owns, uses or possesses any real property situated within the state; or
(5) uses a computer, as defined in subdivision (1) of subsection (a) of section
53-451, or a computer network, as defined in subdivision (3) of subsection
(a) of said section, located within the state.’’
Subsection (c) of § 52-59b explains the proper service of process on
nonresident individuals, providing, in relevant part: ‘‘Any nonresident indi-
vidual . . . as provided in subsection (a) of this section, shall be deemed
to have appointed the Secretary of the State as its attorney and to have
agreed that any process in any civil action brought against the nonresident
individual . . . may be served upon the Secretary of the State and shall
have the same validity as if served upon the nonresident individual . . . .
The process shall be served by the officer to whom the same is directed
upon the Secretary of the State by leaving with or at the office of the
Secretary of the State, at least twelve days before the return day of such
process, a true and attested copy thereof, and by sending to the defendant
at the defendant’s last-known address, by registered or certified mail, postage
prepaid, return receipt requested, a like true and attested copy with an
endorsement thereon of the service upon the Secretary of the State. The
officer serving such process upon the Secretary of the State shall leave with
the Secretary of the State, at the time of service, a fee of twenty-five dollars,
which fee shall be taxed in favor of the plaintiff in the plaintiff’s costs if
the plaintiff prevails in any such action. The Secretary of the State shall
keep a record of each such process and the day and hour of service.’’