Pronovost v. Tierney

 JAMIE PRONOVOST v. MARISA TIERNEY
(AC 38572)
Alvord, Prescott and Bear, Js.
Syllabus
The plaintiff, P, a resident of Connecticut, sought to recover damages from
the defendant, T, a nonresident of Connecticut, arising from a motor
vehicle accident in Maryland caused by the defendant’s alleged negli-
gence. The trial court granted the defendant’s motion to dismiss on the
ground that the relevant long arm statute (§ 52-59b [a] [3] [B]), which
confers personal jurisdiction over a nonresident individual with respect
to a cause of action arising from a tortious act outside Connecticut that
causes injury to a person or property in Connecticut, did not provide
personal jurisdiction over the defendant based on the facts alleged in
the amended complaint and the facts evidenced in the record. The court
concluded that there was no evidence that the defendant, who the
plaintiff claimed maintained a calligraphy and graphic design business
engaged in interstate commerce, derived any revenue from Connecticut
residents and no evidence that the defendant had earned enough revenue
in Connecticut to have a commercial impact in the forum. On the plain-
tiff’s appeal to this court, held that the plaintiff could not prevail on his
claim that the trial court erred in its application of § 52-59b (a) (3) (B)
because the statute only required that the defendant derived substantial
revenue from interstate commerce, and did not additionally require that
the defendant derived substantial revenue from Connecticut: this court
was bound by our Supreme Court’s interpretation of the term ‘‘substan-
tial revenue’’ in Ryan v. Cerullo (282 Conn. 109), as sufficient revenue
to indicate a commercial impact in the forum state, and the plaintiff
here did not allege, and did not produce any evidence in support of his
opposition to the defendant’s motion to dismiss, that the defendant
derived substantial revenue from Connecticut residents, and, therefore,
§ 52-59b (a) (3) (B) did not authorize the assertion of jurisdiction over
the defendant; moreover, the plaintiff’s proposed interpretation of § 52-
59b (a) (3) (B) would have placed the statute in constitutional jeopardy
because the due process clause of the fourteenth amendment to the
United States constitution protects an individual’s liberty interest in not
being subject to binding judgments of a forum with which he or she
had established no meaningful contacts, ties, or relations, and, in the
present case, there was no evidence that the defendant derived any
revenue from Connecticut, and the motor vehicle accident was the only
interaction between the parties upon which the plaintiff relied for the
establishment of personal jurisdiction in Connecticut over the defendant.
Argued March 15—officially released July 4, 2017
(Appeal from Superior Court, judicial district of
Waterbury, Shapiro, J.)
Procedural History
Action to recover damages for the defendant’s alleged
negligence, and for other relief, brought to the Superior
Court in the judicial district of Waterbury, where the
court, Shapiro, J., granted the defendant’s motion to
dismiss and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
Matthew Julian Forrest, for the appellant (plaintiff).
Thomas S. Lambert, with whom, on the brief, was
Robert O. Hickey, for the appellee (defendant).
Opinion
BEAR, J. The plaintiff, Jamie Pronovost, appeals from
the judgment of the trial court dismissing his single
count, amended complaint, in which he alleged negli-
gence against the defendant, Marisa Tierney, arising
from a motor vehicle collision in Maryland. The court
dismissed the plaintiff’s complaint against the defen-
dant, a nonresident of Connecticut at the time that
the action was commenced,1 after determining that the
relevant long arm statute, General Statutes § 52-59b (a)
(3) (B), did not provide jurisdiction over the defendant
based on the facts alleged in the complaint and in an
affidavit filed by the defendant in her reply to the plain-
tiff’s memorandum in opposition to the motion to dis-
miss. On appeal, the plaintiff claims that the court erred
in its application of § 52-59b (a) (3) (B) to the facts as
pleaded in this case. We affirm the judgment of the
court.
The following facts, as alleged in the plaintiff’s com-
plaint,2 and procedural history are relevant to the reso-
lution of this appeal. The plaintiff, a Connecticut
resident, commenced this action in Connecticut against
the defendant on April 9, 2015. In the complaint, the
plaintiff alleged that, on September 13, 2013, the defen-
dant, while operating a motor vehicle, collided with
the rear end of the plaintiff’s vehicle in Maryland. The
defendant’s conduct or actions caused the damages to
the plaintiff’s vehicle in that she (1) was inattentive
because she failed to a keep reasonable and prudent
lookout for other vehicles on the road; (2) failed to
operate the vehicle under reasonable and proper con-
trol to enable her to avoid causing damage to the plain-
tiff’s vehicle; and (3) failed to operate her vehicle as a
reasonably prudent person would have under the cir-
cumstances. The collision caused damages to the plain-
tiff’s vehicle and a corresponding diminution in value to
the automobile. The plaintiff sought $4737 plus interest
from the time of the accident, as well as costs, fees,
and other consequential damages.
On July 2, 2015, the defendant filed a motion to dis-
miss the plaintiff’s complaint, arguing that the court
lacked personal jurisdiction over her under § 52-59b
and that the exercise of jurisdiction would violate the
due process clause of the fourteenth amendment to the
United States constitution. The plaintiff countered in
his memorandum of law in opposition to the motion
that the court had personal jurisdiction under § 52-59b
(a) (3) (B), and he provided evidence purporting to
establish that the defendant had maintained a calligra-
phy and graphic design business engaged in interstate
commerce. In reply, the defendant argued, inter alia,
that the plaintiff had failed to allege or provide evidence
that she derived ‘‘substantial revenue from interstate
. . . commerce’’ under § 52-59b (a) (3) (B), as that
phrase was defined by our Supreme Court in Ryan v.
Cerullo, 282 Conn. 109, 124–25, 918 A.2d 867 (2007),
because there was no allegation or evidence that she
had derived any revenue from Connecticut.
The court heard argument on October 26, 2015. On
October 28, 2015, the court issued its memorandum of
decision granting the defendant’s motion to dismiss.
After setting forth the substantial revenue requirement
under Ryan, the court determined that there was no
evidence that the defendant derived any revenue from
Connecticut residents. Additionally, the court deter-
mined that there was no evidence showing that the
defendant earned enough revenue from Connecticut to
have a commercial impact in the forum. Accordingly,
the court granted the defendant’s motion to dismiss.
This appeal followed.
Before addressing the plaintiff’s claim on appeal, we
set forth the applicable standard of review. ‘‘The stan-
dard 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 [determination]
of the motion to dismiss will be de novo. . . . When
a . . . court decides a jurisdictional question raised
by a pretrial motion to dismiss, it must consider the
allegations of the complaint in their most favorable
light. . . . In this regard, a court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing them in a manner most favorable to the pleader.’’
(Internal quotation marks omitted.) Gold v. Rowland,
296 Conn. 186, 200–201, 994 A.2d 106 (2010).
‘‘When a defendant challenges personal jurisdiction
in a motion to dismiss, the court must undertake a two
part inquiry to determine the propriety of its exercising
such jurisdiction over the defendant. The trial court
must first decide whether the applicable state [long
arm] statute authorizes the assertion of jurisdiction over
the [defendant]. If the statutory requirements [are] met,
its second obligation [is] then to decide whether the
exercise of jurisdiction over the [defendant] would vio-
late constitutional principles of due process.’’ (Internal
quotation marks omitted.) Cogswell v. American Tran-
sit Ins. Co., 282 Conn. 505, 514–15, 923 A.2d 638 (2007).
‘‘Only if we find the [long arm] statute to be applicable
do we reach the question whether it would offend due
process to assert jurisdiction.’’ (Internal quotation
marks omitted.) Matthews v. SBA, Inc., 149 Conn. App.
513, 543, 89 A.3d 938, cert. denied, 312 Conn. 917, 94
A.3d 642 (2014).
‘‘The motion to dismiss . . . admits all facts which
are well pleaded, invokes the existing record and must
be decided upon that alone.’’ (Internal quotation marks
omitted.) Gold v. Rowland, supra, 296 Conn. 201. The
court may also consider undisputed facts evidenced in
the record established by affidavits submitted in sup-
port or opposition, other types of undisputed evidence,
and/or public records of which judicial notice may be
taken. Cuozzo v. Orange, 315 Conn. 606, 615, 109 A.3d
903 (2015).
On appeal, the plaintiff claims that the court erred
in its application of § 52-59b (a) (3) (B). Specifically, he
argues that the statute does not require that substantial
revenue be derived from Connecticut-based commerce;
such revenue need only be derived from interstate com-
merce. We disagree.
Section 52-59b (a) provides in relevant part: ‘‘As to
a cause of action arising from any of the acts enumer-
ated in this section, a court may exercise personal juris-
diction over any nonresident individual . . . who in
person or through an agent . . . (3) commits a tortious
act outside the state causing injury to person or prop-
erty within the state . . . if such person or agent . . .
(B) expects or should reasonably expect the act to
have consequences in the state and derives substantial
revenue from interstate or international commerce
. . . .’’ A trial court, therefore, has personal jurisdiction
over a defendant under § 52-59b (a) (3) (B) when (1)
the defendant, himself or through an agent, commits a
tortious act outside Connecticut, (2) that act causes
injury to a person or property in Connecticut, (3) that
act gives rise to the cause of action claimed by the
plaintiff, (4) the defendant expected or reasonably
should have expected that the act would have conse-
quences in Connecticut, and (5) the defendant derives
substantial revenue from interstate or international
commerce. See Ryan v. Cerullo, supra, 282 Conn. 123–
24. In the present case, the court, in addressing the fifth
prong, determined that the plaintiff had failed to provide
evidence that the defendant derived substantial revenue
from interstate commerce under Ryan.
In Ryan, our Supreme Court for the first time deter-
mined the meaning of ‘‘derives substantial revenue from
interstate or international commerce’’ under § 52-59b:
‘‘Although this court never has been required to deter-
mine the meaning of derives substantial revenue from
interstate or international commerce for purposes of
§ 52-59b (a) (3) (B), New York courts have concluded,
in interpreting their identically worded long arm statute,
that the substantial revenue requirement is designed to
narrow the [long arm] reach to preclude the exercise
of jurisdiction over nondomiciliaries who might cause
direct, foreseeable injury within the [s]tate but whose
business operations are of a local character . . . . Put
differently, substantial revenue means enough revenue
to indicate a commercial impact in the forum, such
that a defendant fairly could have expected to be haled
into court there. . . . Because of the indefinite nature
of the substantial revenue requirement, the determina-
tion of whether that jurisdictional threshold has been
met in any particular case necessarily will require a
careful review of the relevant facts and frequently will
entail an evaluation of both the total amount of revenue
involved and the percentage of annual income that that
revenue represents. Compare Founding Church of Sci-
entology of Washington, D.C. v. Verlag, 536 F.2d 429,
432–33 (D.C. Cir. 1976) (1 percent of magazine’s gross
revenue, or $26,000, [from sales in forum] constituted
substantial revenue on basis of low unit price of maga-
zines) with Murdock v. Arenson International USA,
Inc., 157 A.D. 2d 110, 113–14, 554 N.Y.S.2d 887
(1990) ([sales in forum of] 0.05 percent of corporate
defendant’s total sales, totaling $9000, did not satisfy
substantial revenue requirement).’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
Ryan v. Cerullo, supra, 282 Conn. 124–25.
In the present case, the plaintiff argues that he need
not demonstrate that the defendant’s business dealings
had any impact in Connecticut, but must only demon-
strate that the defendant was engaged in interstate com-
merce under § 52-59b (a) (3) (B). This is in direct
contradiction to how our Supreme Court has defined
‘‘substantial revenue’’ as ‘‘enough revenue to indicate a
commercial impact in the forum, such that a defendant
fairly could have expected to be haled into court there.’’
(Emphasis added; internal quotation marks omitted.)
Id., 125. We are bound by this interpretation. The plain-
tiff did not allege, and did not produce any evidence in
support of his opposition to the defendant’s motion to
dismiss, that the defendant derived substantial revenue
from this state’s residents. The applicable state long
arm statute, § 52-59b (a) (3) (B), thus does not authorize
the assertion of jurisdiction over the defendant.
Moreover, the plaintiff’s proposed interpretation of
the statute, if accepted by this court, could place the
statute in constitutional jeopardy. See Cogswell v.
American Transit Ins. Co., supra, 282 Conn. 523 (‘‘[a]s
articulated in the seminal case of International Shoe
Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90
L. Ed. 95 (1945), the constitutional due process standard
requires that, in order to subject a defendant to a judg-
ment in personam, if he be not present within the terri-
tory of the forum, he have certain minimum contacts
with it such that the maintenance of the suit does not
offend traditional notions of fair play and substantial
justice’’ [internal quotation marks omitted]).
In the present case, the defendant had no contact with
Connecticut relating to or arising out of the automobile
accident in Maryland, and there is no evidence that the
defendant derived any revenue from Connecticut with
respect to her interstate commerce activities. That auto-
mobile accident is the sum total of the interaction
between the parties upon which the plaintiff relies for
the establishment of personal jurisdiction in Connecti-
cut over the defendant. For the plaintiff to assert that
the court has personal jurisdiction over the nonresident
defendant under these circumstances is problematic.
See Cogswell v. American Transit Ins. Co., supra, 282
Conn. 523 (due process clause protects individual’s lib-
erty interest in not being subject to binding judgments
of forum with which he has established no meaningful
contacts, ties, or relations).
‘‘[A] court has a duty to avoid interpreting statutes in
a manner that places them in constitutional jeopardy.’’
Turn of River Fire Dept., Inc. v. Stamford, 159 Conn.
App. 708, 719, 123 A.3d 909 (2015). Accordingly, the
court did not err in declining the plaintiff’s invitation
to expand the ambit of § 52-59b (a) (3) (B) in order to
obtain personal jurisdiction over the defendant beyond
what is permitted by the due process clause of the
United States constitution. Because the court properly
determined that the plaintiff had not proved all of the
requirements of § 52-59b (a) (3) (B) for long arm juris-
diction over the defendant, and because the court’s
exercise of jurisdiction over the defendant in this case
would violate the due process clause of the United
States constitution, the court properly rendered judg-
ment dismissing the plaintiff’s single count complaint.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff alleged in the complaint that the defendant was a resident
of Virginia when this action commenced, but the defendant’s affidavit filed
in support of her reply to the memorandum in opposition to the motion to
dismiss asserts that she was a resident of Maryland at the time the action
was commenced. Regardless of whether she is in fact a Maryland or Virginia
resident on the date that this action commenced, it is undisputed that she
was not a resident of Connecticut on that date or on the date of the accident,
and there is no claim that she owns or owned real property in Connecticut.
2
In reviewing ‘‘the trial court’s decision to grant a motion to dismiss, we
take the facts to be those alleged in the complaint, including those facts
necessarily implied from the allegations, construing them in a manner most
favorable to the pleader.’’ (Internal quotation marks omitted.) May v. Coffey,
291 Conn. 106, 108, 967 A.2d 495 (2009). ‘‘We also recognize that a motion
to dismiss invokes any record that accompanies the motion, including sup-
porting affidavits that contain undisputed facts.’’ (Emphasis omitted; internal
quotation marks omitted.) Connors v. Rolls-Royce North America, Inc., 161
Conn. App. 407, 409, 127 A.3d 1133 (2015).