265 Conn. 650 | Conn. | 2003
Opinion
The plaintiff, Frank Chimblo,
The record reveals the following relevant facts and procedural history. On April 11, 2001, the plaintiff initiated the present action to recover damages stemming from the allegedly improper conduct of the defendant with respect to the sale of several properties owned by a family partnership. A Stamford constable effected service of process pursuant to General Statutes § 52-59b
The defendant filed a motion to dismiss the plaintiffs action for lack of personal jurisdiction on the ground that service of process allegedly was defective. Specifically, the defendant claimed that the plaintiffs service of process on the defendant under § 52-59b, which applies only to nonresident individuals and foreign partnerships or the executors or administrators thereof; see footnote 2 of this opinion; was improper because the defendant was a resident of this state. The defendant also maintained that the personal service of process at her home in Cos Cob was ineffective because a Stamford constable is not authorized to serve process in Cos Cob. Although the trial court noted that the plaintiff had exercised “great diligence” in attempting to serve the defendant, the court nevertheless concluded that
Thereafter, the plaintiff filed a second action against the defendant that differs from the present action only in the manner and date of service and the return date.
On appeal to this court, the plaintiff claims that the appeal in the present action is not moot because the second action, unlike the present action, is subject to the potential assertion of a statute of limitations defense as a result of the plaintiffs belated filing of that action subsequent to the trial court’s dismissal of the present action. We conclude that the Appellate Court properly dismissed the plaintiffs appeal.
Nonetheless, “under this court's long-standing mootness jurisprudence . . . despite developments during the pendency of an appeal that would otherwise render a claim moot, the court may retain jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur. . . . [T]o invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Whe[n] there is no direct practical relief
The plaintiff maintains that the Appellate Court improperly dismissed his appeal as moot. In support of his claim, the plaintiff maintains that he may obtain practical relief if he prevails in his appeal because the second action, unlike the present action, is subject to the potential assertion of a statute of limitations defense as a result of the delay in the filing of the second action, which was occasioned by the dismissal of the present action for ineffective service of process. The defendant contends that there is no reasonable possibility that the second action will be barred by the statute of limitations because General Statutes § 52-592 (a),
At oral argument before this court, counsel for the defendant acknowledged that, as a matter of law, § 52-
In this opinion the other justices concurred.
The plaintiff, Frank Chimblo, brought this action in his individual capacity and as executor of the estate of his father, August D. Chimblo, Sr. We refer to Frank Chimblo as the plaintiff throughout this opinion.
General Statutes § 52-59b provides in relevant part: “(a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual, foreign partnership or over the executor or administrator of such nonresident individual or foreign partnership, who in person or through an agent: (1) Transacts any business within the state; (2) commits a tortious act within the state . . . [or] (4) owns, uses or possesses any real property situated within the state .... -
The trial court specifically concluded that because the defendant was not a “nonresident” of this state, as that term is used in § 52-59b, she could “not be served under § 52-59b.” In addition, the trial court specifically concluded that the Stamford constable lacked statutory authority to effect personal service on the defendant in Cos Cob.
The second action currently is pending. The propriety of service of process in that action is not in dispute.
General Statutes § 52-592 (a) provides: “If any action, commenced -within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”
Based on when the second action was filed, it is undisputed that, but for the accidental failure of suit statute, the second action would be subject to the assertion of a viable statute of limitations defense.
Indeed, although the defendant was not willing to enter into a formal agreement or stipulation to that effect during the pendency of this appeal, the defendant acknowledged as much in her brief filed in this court. We note that the plaintiff represented in his brief to this court that he would have been willing to concede that the appeal in the present action was moot if the defendant would have agreed to not assert any statute of limitations defense in the second action that was not available to her in the present action.
Inasmuch as our conclusion regarding the mootness of the plaintiffs appeal is predicated on representations made by counsel for the defendant before this court, we need not address the issue of whether the Appellate Court’s order of dismissal of the plaintiffs appeal as moot was proper when it was issued.