175 Conn. App. 757
Conn. App. Ct.2017Background
- In 2008 Salce executed a $500,000 revolving promissory note with TD Bank; plaintiff declared default and demanded payment in July 2014.
- TD Bank sued on September 18, 2014; the marshal left process at Salce’s Fairfield property (abode service), served the Secretary of the State with copies, and mailed certified process to Salce’s Florida address per § 52-59b(c).
- Salce moved to dismiss for lack of personal jurisdiction claiming (1) the Fairfield property was not his usual abode and (2) he never received the certified mail in Florida.
- Judge Gilardi denied the motion to dismiss; Judge Radcliffe later granted summary judgment to TD Bank on liability; following a damages hearing, judgment was entered for TD Bank for $548,557.79.
- On appeal Salce argued (A) service under § 52-59b(c) (and abode service) was insufficient and (B) his promissory estoppel special defense created a triable issue of fact.
- The appellate court affirmed: service complied with § 52-59b(c) and promissory estoppel failed as a matter of law because Salce produced no evidence of a clear, enforceable promise or of detrimental reliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of service on nonresident under § 52-59b(c) | Service was proper: copies left with Sec. of State and mailed by certified mail to last-known Florida address | Service invalid because Salce never actually received certified mail and Fairfield home was not his usual abode | Affirmed: statutory requirements of § 52-59b(c) were met; actual receipt not required by statute |
| Abode service under § 52-57(a) | Not necessary to decide once § 52-59b(c) satisfied; marshal left process at Fairfield property | Argued Fairfield was not his usual place of abode so abode service failed | Court did not reach § 52-57(a) because § 52-59b(c) proper; lower court’s factual finding that service occurred not overturned |
| Viability of promissory estoppel defense (second special defense) | Defendant failed to prove a clear, definite promise or detrimental reliance; plaintiff’s records show modification discussions concerned a different loan | Salce alleged settlement discussions and a promised modification that induced reliance and foreclosed enforcement | Affirmed: no genuine issue of material fact; promissory estoppel elements (clear promise and reliance causing injury) not met |
| Burden of proof on jurisdictional challenge | Plaintiff satisfied burden to show compliance with statutory service for nonresident defendant | Salce argued court impermissibly shifted burden to him to disprove jurisdiction | Court correctly applied law: plaintiff bears burden to prove jurisdiction and did so; no improper burden shift |
Key Cases Cited
- Cogswell v. American Transit Ins. Co., 282 Conn. 505 (Conn. 2007) (standard for resolving jurisdictional motion with supporting affidavits)
- Knipple v. Viking Communications, Ltd., 236 Conn. 602 (Conn. 1996) (plaintiff bears burden to prove jurisdiction over nonresident)
- Myrtle Mews Assn., Inc. v. Bordes, 125 Conn.App. 12 (Conn. App. 2010) (challenge to personal jurisdiction is a question of law reviewed plenarily)
- Doyle Group v. Alaskans for Cuddy, 146 Conn.App. 341 (Conn. App. 2013) (statutory construction principles for service statutes)
- Heisinger v. Cleary, 323 Conn. 765 (Conn. 2016) (standard of review for summary judgment)
- Union Trust Co. v. Jackson, 42 Conn.App. 413 (Conn. App. 1996) (single valid defense can defeat summary judgment)
- GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165 (Conn. App. 2013) (opposing affidavits/documentation required to create genuine issue)
- Bellsite Development, LLC v. Monroe, 155 Conn.App. 131 (Conn. App. 2015) (elements of promissory estoppel)
- Torringford Farms Assn., Inc. v. Torrington, 75 Conn.App. 570 (Conn. App. 2003) (promissory estoppel requires detrimental reliance and change of position)
- Himmelstein v. Windsor, 116 Conn.App. 28 (Conn. App. 2009) (mere assertions without evidentiary support insufficient to raise genuine issue)
- Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379 (Conn. 2008) (bare assertions without evidentiary support insufficient to defeat summary judgment)
- Havis-Carbone v. Carbone, 155 Conn.App. 848 (Conn. App. 2015) (appellate presumption that trial court applied law correctly; burden on appellant to show error)
- Iacurci v. Sax, 139 Conn.App. 386 (Conn. App. 2012) (same principle regarding appellant’s burden to demonstrate trial court error)