Scient Federal Credit Union v. Rabon ( 2022 )

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SCIENT FEDERAL CREDIT UNION v.
MARK RABON
(AC 43915)
Bright, C. J., and Elgo and Suarez, Js.
Syllabus
The plaintiff sought to recover damages resulting from the defendant’s
alleged breach of a credit card agreement. In its complaint, the plaintiff
alleged that the defendant applied for and received a credit card by
virtue of a credit card agreement, and the defendant defaulted under
the terms of that agreement by failing to make the payments agreed to
therein. The defendant filed a motion to dismiss on the ground that the
trial court lacked personal jurisdiction over him due to insufficient
service of process, which the court denied without issuing a memoran-
dum of decision. Thereafter, the plaintiff filed a motion for summary
judgment as to liability and damages. The plaintiff appended to the
motion an affidavit from H, the director of collections for the plaintiff. H’s
affidavit stated that as a result of the defendant’s credit card application
submitted to the plaintiff, the defendant received two credit cards.
Attached as exhibits to the affidavit were the defendant’s credit card
application, credit card disclosure statements, transaction listings for
the two accounts, and the credit card agreement that allegedly estab-
lished the defendant’s liability to the plaintiff and the amount of the
debt that the defendant owed, $46,812.08. The defendant opposed the
motion for summary judgment, arguing that it differed from the com-
plaint because the complaint referenced only one credit card and under-
lying agreement, while the motion for summary judgment referenced
multiple credit cards with separate debts, along with documents that
indicated the existence of separate agreements. The trial court granted
the plaintiff’s motion for summary judgment and rendered judgment
thereon, from which the defendant appealed to this court. Held:
1. The trial court properly granted the plaintiff’s motion for summary judg-
ment, that court having properly concluded that the plaintiff met its
burden to establish the absence of any genuine issue of material fact
as to the factual basis for the defendant’s liability to the plaintiff and
the amount of damages owed: although the defendant argued that the
complaint referenced only one credit card agreement and one credit
card, the defendant admitted at oral argument before this court that he
held two separate accounts with the plaintiff and that the two accounts
arose from the same application and, therefore, he failed to establish
that there was a genuine issue of material fact with respect to his liability
on the two accounts; moreover, because H’s affidavit asserted that the
plaintiff was owed $46,812.08, which was also reflected in the attached
transaction ledger for each account, and the defendant admitted at
oral argument before this court that the total amount of the debt was
$46,812.08, there was no genuine issue of material fact in dispute as to
the amount of damages.
2. The trial court properly denied the defendant’s motion to dismiss that
alleged that the court lacked personal jurisdiction over him due to
insufficient service of process: pursuant to the applicable rule of practice
(§ 10-30 (b)), a claim of lack of personal jurisdiction as a result of an
insufficiency of service of process is waived unless raised by a motion
to dismiss filed within thirty days of the filing of an appearance; accord-
ingly, because the defendant filed an appearance and failed to file a
motion to dismiss within thirty days of filing his appearance, he waived
any right to challenge the court’s exercise of personal jurisdiction
over him.
Argued January 6—officially released March 15, 2022
Procedural History
Action to recover damages for the breach of a credit
card agreement, and for other relief, brought to the
Superior Court in the judicial district of New London,
where the court, Hon. James J. Devine, judge trial
referee, denied the defendant’s motions to dismiss and
to strike; thereafter, the court, Hon. James J. Devine,
judge trial referee, granted the plaintiff’s motion for
summary judgment and rendered judgment thereon,
from which the defendant appealed to this court.
Affirmed.
Mark E. Rabon, self-represented, the appellant (defen-
dant).
Kyle R. Barrett, for the appellee (plaintiff).
Opinion
SUAREZ, J. In this action seeking to recover credit
card debt, the self-represented defendant, Mark Rabon,
appeals from the judgment rendered by the trial court
in favor of the plaintiff, Scient Federal Credit Union,
following the granting of the plaintiff’s motion for sum-
mary judgment. The defendant claims that the trial
court improperly (1) granted the plaintiff’s motion for
summary judgment and (2) denied the defendant’s
motion to dismiss. We affirm the judgment of the trial
court.
The following facts and procedural history are rele-
vant for our resolution of the defendant’s claims. The
plaintiff initiated this action by a single count complaint,
which was dated July 13, 2017. In the complaint, the
plaintiff alleged that ‘‘[b]y virtue of a Visa credit card
agreement, the defendant applied for and received a
credit card.’’ The plaintiff further alleged that ‘‘[t]he
defendant defaulted under the terms of the credit card
agreement by failing to make the payments agreed to
therein.’’ Finally, the plaintiff alleged that ‘‘the defen-
dant has failed and refused to satisfy the debt owed to
the plaintiff’’ and that, ‘‘[a]s a result of the defendant’s
conduct, the plaintiff has been damaged.’’
Following the commencement of the present case,
the defendant filed a motion to dismiss and a supporting
memorandum of law on March 8, 2018. The defendant
moved to dismiss this action on the ground that the
court lacked personal jurisdiction over him due to insuf-
ficient service of process.1 The plaintiff filed an objec-
tion to the motion to dismiss on April 18, 2018. The
court, Hon. James J. Devine, judge trial referee, denied
the motion to dismiss on May 1, 2018, and sustained
the plaintiff’s objection to the motion on the same day
without issuing a memorandum of decision.
On September 27, 2018, the defendant filed a motion
to strike, to which the plaintiff objected. In his motion
to strike, the defendant alleged that ‘‘[t]he complaint
[did] not properly plead facts with enough specificity’’
and that ‘‘[t]he complaint [alleged] conclusions that
[were] unsupported by the facts alleged.’’ The court,
Hon. James J. Devine, judge trial referee, sustained the
plaintiff’s objection to the motion on February 4, 2019,
and the motion was denied on February 6, 2019.
On May 30, 2019, the plaintiff filed a motion for sum-
mary judgment claiming that no genuine issues of mate-
rial fact existed and that it was entitled to judgment as
a matter of law as to both liability and damages. In
support of its motion for summary judgment, the plain-
tiff submitted the affidavit of Irvine Hagewood, the
director of collections for the plaintiff. The affidavit
stated that the defendant submitted a ‘‘Loanliner Visa
credit card application’’ to the plaintiff and, as a result
of that application, the defendant received two credit
cards. The plaintiff extended the credit accounts to the
defendant on or about April 4, 2013. The defendant
thereafter defaulted on the accounts by failing to pay
the amounts that were due under the agreement. The
affidavit further stated that the defendant was indebted
to the plaintiff in the total amount of $46,812.08.2 The
affidavit provided that the defendant had failed to pay
the plaintiff the balance due, which constituted the out-
standing balances under both accounts. The plaintiff
attached to its affidavit several exhibits, including the
defendant’s application, credit card disclosure state-
ments, transaction listings for the two accounts, and
the credit card agreement.
In its memorandum of law in support of the motion
for summary judgment, the plaintiff argued that,
because ‘‘the defendant has raised no special defenses
and the plaintiff’s affidavit in support of summary judg-
ment establishes the defendant’s liability to the plaintiff
and the amount of damages owed, summary judgment
is proper as there are no genuine issues of material fact
left in dispute and the plaintiff is entitled to judgment
as a matter of law.’’
On November 12, 2019, the defendant filed his objec-
tion to the motion and a memorandum in opposition to
the motion for summary judgment. In the memorandum,
the defendant argued that genuine issues of material
fact existed for several reasons. The defendant asserted
that the plaintiff’s complaint referenced only one credit
card agreement that had been breached and indicated
that the defendant had received only one credit card.
Although not stated in the complaint, the plaintiff’s
memorandum of law in support of the motion for sum-
mary judgment asserted that the total amount of dam-
ages being sought reflected a combination of debts from
two separate credit card accounts. The defendant also
asserted in an affidavit, which was filed with his objec-
tion to the motion for summary judgment, that he
received more than one credit card from the plaintiff.
The defendant’s memorandum further asserted that
both the plaintiff’s complaint and Hagewood’s affidavit
failed to identify which credit card agreement had been
breached. The defendant argued that the motion for
summary judgment and the complaint ‘‘stand in stark
contradiction’’ because the complaint referenced only
one credit card and underlying agreement, while the
motion for summary judgment referenced multiple
credit cards with separate debts, along with documents
indicating the existence of separate agreements.3
Despite raising these arguments, the defendant
admitted in his affidavit, and he does not dispute on
appeal, that he held multiple credit card accounts with
the plaintiff. In his memorandum in opposition to the
motion for summary judgment, the defendant also
admitted that he owed the total amount being sought of
$46,812.08, and that this amount reflected the combined
balance of multiple credit cards.4
On November 12, 2019, the court, Calmar, J., ordered
the defendant to refile his memorandum because it
contained personal identifying information. The memo-
randum was refiled with redactions but without sub-
stantive changes on November 21, 2019. Prior to the
defendant’s refiling of the memorandum, on November
15, 2019, the court, Hon. James J. Devine, judge trial
referee, granted the plaintiff’s motion for summary judg-
ment. The defendant filed a motion to reargue on
November 21, 2019, which the court denied on January
22, 2020. The defendant also filed a motion for articula-
tion on November 21, 2019, which the court denied on
January 22, 2020.
The defendant filed the present appeal on February
10, 2020. Subsequent to filing this appeal, the defendant
moved for the court to issue a written decision pursuant
to Practice Book § 64-1, and the court issued its memo-
randum of decision on February 25, 2020. In its memo-
randum of decision, the court stated that, because the
‘‘defendant has raised no special defenses and the plain-
tiff’s affidavit in support of summary judgment estab-
lishes the defendant’s liability to the plaintiff and the
amount of damages owed, summary judgment is proper
as there are no genuine issues of material fact left in
dispute and the plaintiff is entitled to judgment as a
matter of law.’’ This appeal followed.
I
The defendant first claims that the trial court improp-
erly granted the plaintiff’s motion for summary judg-
ment. Specifically, the defendant claims that he demon-
strated that there were genuine issues of material fact
in dispute and, therefore, the court should not have
granted the plaintiff’s motion. Because the record estab-
lishes that there was no genuine issue of material fact
as to whether the defendant applied for and received
two separate credit accounts from the plaintiff by virtue
of a single application or as to the total amount of the
debt that the defendant owed on the two accounts, we
conclude that the court properly granted the plaintiff’s
motion for summary judgment.
We now set forth the legal principles and standard
of review relevant to this claim. ‘‘The fundamental pur-
pose of summary judgment is preventing unnecessary
trials. . . . If a [party] is unable to present sufficient
evidence in support of an essential element of his cause
of action at trial, he cannot prevail as a matter of law.
. . . To avert these types of ill-fated cases from advanc-
ing to trial, following adequate time for discovery, a
[party] may properly be called upon at the summary
judgment stage to demonstrate that he possesses suffi-
cient counterevidence to raise a genuine issue of mate-
rial fact as to any, or even all, of the essential elements
of his cause of action. . . .
‘‘Practice Book § [17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . .
‘‘It is not enough . . . for the opposing party merely
to assert the existence of such a disputed issue. Mere
assertions of fact . . . are insufficient to establish the
existence of a material fact and, therefore, cannot refute
evidence properly presented to the court. . . . [T]ypi-
cally [d]emonstrating a genuine issue requires a show-
ing of evidentiary facts or substantial evidence outside
the pleadings from which material facts alleged in the
pleadings can be warrantably inferred. . . . Only if the
. . . moving party has submitted no evidentiary proof
to rebut the allegations in the complaint, or the proof
submitted fails to call those allegations into question,
may the [nonmoving party] rest upon factual allegations
alone. . . .
‘‘[I]ssue-finding, rather than issue-determination, is
the key to the procedure. . . . [T]he trial court does
not sit as the trier of fact when ruling on a motion for
summary judgment. . . . [Its] function is not to decide
issues of material fact, but rather to determine whether
any such issues exist. . . . Our review of the decision
to grant a motion for summary judgment is plenary.
. . . We therefore must decide whether the court’s con-
clusions were legally and logically correct and find sup-
port in the record.’’ (Internal quotation marks omitted.)
Carolina Casualty Ins. Co. v. Connecticut Solid Sur-
face, LLC, 207 Conn. App. 525, 532–33, 262 A.3d 885(2021).
The plaintiff’s complaint sounds in breach of con-
tract. ‘‘The elements of a breach of contract action are
the formation of an agreement, performance by one
party, breach of the agreement by the other party and
damages.’’ (Internal quotation marks omitted.) Ameri-
can Express Centurion Bank v. Head, 115 Conn. App.
10, 15–16, 971 A.2d 90 (2009).
We first conclude that there was no genuine issue of
material fact in dispute as to whether the defendant
was liable to the plaintiff for breaching his contract
with respect to two separate credit accounts. As noted
previously in this opinion, the plaintiff submitted with
its motion for summary judgment an affidavit prepared
by Hagewood, which stated that the defendant became
indebted to the plaintiff by virtue of a credit card appli-
cation in which the defendant applied for two credit
cards. Following the defendant’s submission of the
application, the plaintiff and the defendant entered into
an agreement, and the plaintiff then extended the two
credit accounts to the defendant. The defendant subse-
quently defaulted under the accounts and has failed to
pay the balance due, which totals $46,812.08. On the
basis of these facts, the plaintiff has established the
defendant’s liability as to the two credit accounts.
Moreover, the defendant did not allege any defense
to liability or otherwise establish any genuine issue
of material fact that would eliminate his obligation to
satisfy the debt claimed by the plaintiff. Although the
defendant argues that the complaint referenced only
one credit card agreement and one credit card, the
defendant admitted at oral argument that he did in fact
hold two separate accounts with the plaintiff and that
the two accounts arose from the same application.
Despite the defendant’s argument that the complaint
only references the breach of a singular credit card
agreement, it is clear that both of the defendant’s
accounts arose from that same application and agree-
ment. We therefore conclude that the defendant has
not raised a genuine issue of material fact with respect
to his liability on the two credit accounts.
We also determine that there is no genuine issue of
material fact in dispute as to the plaintiff’s damages.
Hagewood’s affidavit asserts that the plaintiff is owed
$46,812.08 related to the agreement. Specifically, the
defendant owed the plaintiff $26,655.04 on one account
and $20,157.04 on the other account, which totaled
$46,812.08. The amounts of the debts were reflected on
the true and accurate copies of the transaction ledger
for each account. Before the trial court, the defendant
never disputed the total amount of the debt. In fact,
the defendant admitted at oral argument before this
court that the total amount of the debt was $46,812.08.
Accordingly, we conclude that there is no genuine issue
of material fact in dispute as to the amount of damages.
The court’s conclusion that there was no genuine issue
of material fact and that the plaintiff was entitled to
summary judgment as a matter of law was therefore
logically and legally correct.
II
The defendant also claims that the trial court improp-
erly denied his motion to dismiss. We disagree.
We begin by setting forth the legal principles and
standard of review relevant to this claim. ‘‘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 Con-
necticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).
‘‘A defect in process . . . implicates personal juris-
diction . . . . [W]hen a particular method of serving
process is set forth by statute, that method must be
followed. . . . Unless service of process is made as
the statute prescribes, the court to which it is returnable
does not acquire jurisdiction.’’ (Internal quotation
marks omitted.) Pedro v. Miller, 281 Conn. 112, 117,
914 A.2d 524 (2007).
‘‘[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. . . . Accordingly,
jurisdiction over a person can be obtained by waiver.’’
(Citation omitted; internal quotation marks omitted.)
Foster v. Smith, 91 Conn. App. 528, 536, 881 A.2d 497(2005). Practice Book § 10-30 (b), which governs
motions to dismiss, provides that ‘‘[a]ny defendant,
wishing to contest the court’s jurisdiction, shall do so
by filing a motion to dismiss within thirty days of the
filing of an appearance.’’ (Emphasis added.) As our
Supreme Court has explained, § 10-30 (b) ‘‘specifically
and unambiguously provides that any claim of lack of
jurisdiction over the person as a result of an insuffi-
ciency of service of process is waived unless it is raised
by a motion to dismiss filed within thirty days . . . .
Thus, thirty-one days after the filing of an appearance
. . . a party is deemed to have submitted to the jurisdic-
tion of the court. Any claim of insufficiency of process
is waived if not sooner raised.’’ (Citation omitted;
emphasis omitted; footnote omitted.) Pitchell v. Hart-
ford, 247 Conn. 422, 433, 722 A.2d 797 (1999).
In the present case, the defendant filed a self-repre-
sented appearance on January 16, 2018. The defendant’s
motion to dismiss was not filed until March 8, 2018,
which was fifty-one days after the defendant filed his
appearance in the present matter. The defendant, there-
fore, has waived any potential defects in the court’s
personal jurisdiction over him. Considering the untime-
liness of the defendant’s motion to dismiss, it is unnec-
essary for this court to examine the merits of the defen-
dant’s argument with respect to any improper service
of process. Because the defendant filed his motion to
dismiss more than thirty days after he filed an appear-
ance, the defendant had submitted to the jurisdiction
of the court. The defendant’s motion to dismiss was
untimely and, therefore, we conclude that the court
properly denied the motion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant makes several arguments as to why the service of process
was insufficient in the present case. Because we conclude that the court’s
denial of the defendant’s motion to dismiss was proper on the basis of the
untimeliness of the motion, it is unnecessary for us to address the merits
of the defendant’s claims with respect to improper service of process.
2
Although not specified in the affidavit, the plaintiff’s memorandum in
support of the motion for summary judgment clarifies that the defendant
owed $26,655.04 on one credit account and $20,157.04 on the other credit
account, which totaled $46,812.08 in debt.
3
In this regard, the defendant essentially argued before the trial court
and argues before this court that the allegations in the complaint do not
align with the relief requested in the plaintiff’s motion for summary judgment.
The defendant, however, did not file a request to revise to clarify the allega-
tions in the complaint. Moreover, although the defendant focuses on the
fact that the complaint references a single credit card, the uncontroverted
evidence presented by the plaintiff in support of its motion for summary
judgment reflects that it sought in its complaint to recover balances incurred
by him by the use of two separate credit cards, which the defendant received
after he filed a single application.
4
During oral argument before this court, the defendant once again
acknowledged that he did in fact hold two separate accounts at the plaintiff,
which were created simultaneously following the plaintiff’s approval of the
defendant’s single application. The defendant also acknowledged at oral
argument that he owed $46,812.08 on the two accounts, which was the same
amount that the plaintiff claimed in damages related to the accounts.