NICOLE C. JACKSON v. JOSHUA PRINCE ET AL.
(AC 46961)
Connecticut Appellate Court
March 25, 2025
Alvord, Suarez and Clark, Js.
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Syllabus
The plaintiff appealed from the judgment of the trial court, rendered following its granting of the defendants’ motions to dismiss her breach of contract action for lack of personal jurisdiction due to, inter alia, insufficient process. The defendants J and M sold certain real property in Fairfield to the plaintiff, and the defendants Z and D were attorneys who represented the parties in the real estate transaction. In their motion to dismiss, J and M claimed, inter alia, that M was served in hand at their home, but that no copy was left for J, nor was he served in hand. Z and D claimed in separate motions that the plaintiff failed to effectuate proper service because the state marshal attempted to serve them by leaving a copy of the summons and complaint at their respective law firms, rather than serving them through in person or abode service, and they had not authorized anyone at their law offices to accept service on their behalf. On appeal, the plaintiff claimed that the court erred in, inter alia, concluding that it lacked personal jurisdiction over J and M on the basis of insufficiency of process and insufficient service. Held:
The trial court erred in concluding that the plaintiff‘s designation of “J and M” on the summons form as one defendant, rather than listing J and M as separate individuals, deprived the court of personal jurisdiction over M and J pursuant to statute (
The trial court erred in dismissing the action as to J for insufficient service of process prior to holding an evidentiary hearing, as there was a factual dispute over whether the state marshal left a copy of the summons and complaint for J, and the court was not permitted to resolve that issue based solely on the parties’ affidavits.
The trial court erred in concluding that it lacked personal jurisdiction over M, as the court found that the state marshal left one copy of the summons and complaint in the hands of M, thereby serving her in a manner allowed by statute (
The trial court properly dismissed the action as to Z and D for lack of personal jurisdiction because the plaintiff failed to properly effectuate service pursuant to
Argued February 3—officially released March 25, 2025
Action to recover damages for breach of contract, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Reed, J., granted the defendants’ motions to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court. Reversed in part; judgment directed in part; further proceedings.
Nicole C. Jackson, self-represented, the appellant (plaintiff).
Christopher J. Jarboe, for the appellees (named defendant et al.).
Michael R. Keller, with whom, on the brief, was Justin R. Bengtson, for the appellee (defendant Amy Zabetakis).
Ryan V. Nobile, with whom, on the brief, was Robert C. E. Laney, for the appellee (defendant John B. Devine).
Opinion
CLARK, J. The self-represented plaintiff, Nicole C. Jackson, appeals from the judgment of the trial court dismissing her action against the defendants, Joshua Prince (Joshua), Melinda Prince (Melinda), Amy Zabetakis, and John B. Devine. On appeal, the plaintiff claims that the court erred in (1) concluding that it lacked personal jurisdiction over Joshua and Melinda on the basis of insufficiency of process and insufficient service of process, (2) failing to hold an evidentiary hearing prior to dismissing the action as to Joshua and Melinda, and (3) concluding that it lacked personal jurisdiction over Zabetakis and Devine on the basis of insufficient service of process. We conclude that the court erred in concluding that it lacked personal jurisdiction over Melinda and in failing to hold an evidentiary hearing prior to dismissing the action as to Joshua. We also conclude that the court properly dismissed the action as to Devine and Zabetakis. Accordingly, we reverse in part and affirm in part the judgment of the trial court.
The following facts as alleged in the pleadings and procedural history are relevant to this appeal. On January 4, 2022, the plaintiff purchased certain real property located in Fairfield (property) from Joshua and Melinda. Zabetakis and Devine are attorneys licensed to practice law in Connecticut. Devine represented Joshua and Melinda in connection with the transaction, and Zabetakis represented the plaintiff. The plaintiff alleges that in August, 2022, she discovered certain defects with the property that were not disclosed at the time of the sale.
The plaintiff commenced the present action on December 21, 2022. The summons, which was completed on the civil summons form published by the Judicial Branch, identifies “Joshua and Melinda Prince” as the “first defendant.” In the return of service, the state marshal attested that he served Joshua and Melinda “by leaving at [their] usual place of abode . . . two true and attested copies of the within [summons and complaint] . . . .” The marshal further attested that he served Zabetakis by leaving a copy of the summons and complaint at “Rucci Law Group, 19 Old Kings [Highway] South, Darien,” and that he served Devine by leaving a copy of the summons and complaint at “Devine & Devine, 65 East [Avenue], Norwalk . . . .”
On March 1 and 3, 2023, Zabetakis and Devine, respectively, moved to dismiss the action for lack of personal jurisdiction due to insufficient service of process. Zabetakis and Devine both argued that the plaintiff failed to effectuate proper service because the state marshal attempted to serve them by leaving the summons and complaint at their respective law firms, rather than
On March 3, 2023, Joshua and Melinda filed a motion to dismiss in which they claimed that the court lacked personal jurisdiction over them due to insufficient process because the summons identified “Joshua and Melinda Prince” as the first defendant, rather than listing them separately. In addition, Joshua claimed that the court lacked personal jurisdiction over him due to insufficient service of process because the marshal provided only a single copy of the summons and complaint to Melinda and did not leave a separate copy for Joshua. Melinda filed an affidavit in which she averred that she was personally served with a single copy of the summons and complaint and that the marshal did not leave a copy for Joshua. Joshua filed an affidavit in which he averred that he was not personally served with a copy of the summons and complaint and that a copy was not left for him at his usual place of abode.
On May 22, 2023, the court, Reed, J., heard argument on the motions to dismiss. On September 12, 2023, the court entered separate orders granting all three motions to dismiss. As to Zabetakis and Devine, the court concluded that it lacked personal jurisdiction over them due to insufficient service of process “because service of process was not effectuated . . . by in hand or abode service in compliance with . . .
“[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. . . . [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. . . . A proper officer serving process must comply with the provisions of . . .
“For service pursuant to
locale is the usual place of abode is a question of fact. . . . When . . . the defendant is a resident of Connecticut who claims that no valid abode service has been made . . . that would give the court jurisdiction over [the defendant‘s] person, the defendant bears the burden of disproving personal jurisdiction. . . . When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise.” (Citations omitted; internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn. App. 332, 338-39, 951 A.2d 632 (2008).
I
The plaintiff first claims that the court erred in concluding that it lacked personal jurisdiction over Joshua and Melinda due to insufficient process and insufficient service of process. The plaintiff argues that she accurately identified Joshua and Melinda as defendants on the civil summons form, and that listing “Joshua and Melinda Prince” on a single line on the form was merely a misnomer that did not render the summons insufficient. The plaintiff further argues that, because there
The following additional procedural history is relevant to this claim. In the memorandum in support of their motion to dismiss, Joshua and Melinda argued that, by identifying “Joshua and Melinda Prince” as the “first defendant” on the civil summons form, the plaintiff had improperly “treat[ed] them as one defendant,” rendering the process insufficient and depriving the court of personal jurisdiction over both of them.
Additionally, Joshua argued that the court lacked personal jurisdiction over him because, contrary to the attestation in the return of service, the marshal did not leave a separate copy of the summons and complaint for him at his usual place of abode. On April 18, 2023, the court scheduled oral argument on the motions to dismiss. On May 18, 2023, Joshua and Melinda filed a request for an evidentiary hearing on their motion to dismiss, in which they requested that, “if the court determines that further evidence is required on the issues raised in their motion, that the evidentiary hearing be held simultaneously with the hearing already scheduled for May 22, 2023.”
During oral argument on the motion to dismiss, counsel for Joshua and Melinda reiterated the arguments set forth in their written motion, namely, that the court should dismiss the action as to both Joshua and Melinda due to insufficiency of process and that the action “should be dismissed as to Joshua . . . based on insufficiency of service of process.” With respect to the latter argument, counsel noted that the affidavits submitted by Joshua and Melinda disputed the marshal‘s attestation that he had left two copies of the summons and complaint at their residence. Counsel further argued “that [the affidavits leave] us currently with a factual dispute” and noted that Joshua and Melinda were available to testify. The court responded that “[t]his is not an evidentiary hearing. . . . We‘ve not set aside time sufficient for evidence if it‘s needed. So, we‘re not going to do that today.”
On September 12, 2023, the court entered an order dismissing the action as to Joshua and Melinda without holding an evidentiary hearing. With respect to the contention that the summons failed to identify Joshua and Melinda separately, the court determined that “the summons and complaint improperly identify Joshua and [Melinda] jointly as one defendant. Yet, they are, in fact,
separate individuals, and not a business or corporate entity called ‘Joshua and Melinda Prince.’ The legal process is defective in treating them as one defendant. It is axiomatic that individual persons who are claimed to be liable for damages should be listed as separate defendants so that they may appear and plead in their individual capacities and assert such rights and defenses that may individually apply.” The court further noted that ”
in his return of process that he served [Joshua] and [Melinda] by leaving two true and attested copies of the process at their usual place of abode, this is contradicted by Joshua and [Melinda] in their affidavits. In her affidavit, [Melinda] states that the state marshal . . . served her with one copy in hand,4 and that the state marshal did not give her or leave a true and attested copy of the summons and complaint for her husband, [Joshua]. [Joshua] states in his affidavit that he was never served in hand, and the return of process submitted by the state marshal does not claim that he served [Joshua] in hand (or by reading it). Rather, the marshal claims that he served [Joshua] and [Melinda] by abode with two true and attested copies. The fact that the marshal actually served [Melinda] in hand, while stating in his return that he served her by abode, shows that the return is inaccurate, and gives reason to doubt that he left two true and attested copies at the abode. The better evidence is that the marshal left one copy only in the hands of [Melinda], thereby serving her in a manner allowed by . . .
“The fact that the civil summons lists Joshua and [Melinda] as one defendant . . . and that the complaint describes them as ‘Defendant 1,’ suggests that the plaintiff might not have been aware that individual persons who are being sued in their individual capacities, as opposed to a business or corporate entity named ‘Joshua and Melinda Prince,’ should be listed as separate defendants. The plaintiff‘s listing of them together
suggests that the plaintiff considered them as one, leading to a reasonable inference that the plaintiff would have given the marshal only one copy of the process to be served on [them] jointly. This manner of service does not comply with
We first address the court‘s conclusion that it lacked personal jurisdiction over Joshua and Melinda due to insufficiency of process.
“When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of [personal] jurisdiction if the defendant was actually served
and knew he or she was the intended defendant. This is in contradistinction to the case in which the plaintiff has misconstrued the identity of the defendant and has therefore named and served the wrong party. The issue, then, is whether a misnomer is a designation of the right party in a way which may be inaccurate but which is still sufficient for identification purposes or whether the wrong person has been designated as a party.” (Internal quotation marks omitted.) Lussier v. Dept. of Transportation, 228 Conn. 343, 350, 636 A.2d 808 (1994). “Service is proper despite a misnomer if the complaint is not susceptible to any reasonable doubt or confusion about who it was the plaintiff intended to sue.” (Internal quotation marks omitted.) Gaddy v. Mount Vernon Fire Ins. Co., 192 Conn. App. 337, 346, 217 A.3d 1082 (2019).
In the present case, it is apparent from our review of the record that the designation of Joshua and Melinda as “Joshua and Melinda Prince” could not reasonably have resulted in any confusion about the identity of the defendants. The complaint describes Joshua and Melinda as “the previous owners and sellers of the property.” Attached to the complaint are copies of a rider to the real estate sales agreement and the residential property condition report from the sale of the property, both of which identify the sellers as “Joshua and Melinda Prince.” Moreover, Joshua and Melinda do not dispute that they received actual notice of the action and do not claim that there was any confusion that they were the intended defendants or that they suffered any prejudice from the plaintiff‘s failure to list them separately on the summons. See, e.g., Lussier v. Dept. of Transportation, supra, 228 Conn. 348-49, 352 (designation in summons of defendant as “State of Connecticut, Department of Transportation” rather than “Commissioner of Transportation” did not deprive court of jurisdiction where commissioner was named in complaint and received actual notice); Ryan v. Cassella, 180 Conn.
App. 461, 474-75, 184 A.3d 311 (2018) (summons that misspelled defendant‘s name was circumstantial defect that did not deprive court of jurisdiction where defendant received actual notice and claimed no prejudice as result of defect). Accordingly, we conclude that the designation of Joshua and Melinda as “Joshua and Melinda Prince” was a
B
We next address the plaintiff‘s contention that the court erred by failing to hold an evidentiary hearing prior to dismissing the action as to Joshua and Melinda on the basis of insufficient service of process. We first note that, although the court concluded that it lacked personal jurisdiction over both Joshua and Melinda due to insufficient service of process, Melinda did not move to dismiss the action on that basis. In their joint motion to dismiss, Joshua and Melinda both claimed that the action should be dismissed due to insufficiency of process, but only Joshua sought dismissal on the basis of lack of personal jurisdiction due to insufficient service of process. In her affidavit filed in support of the joint motion, Melinda conceded that she “was served by a state marshal in hand with one copy of the summons and complaint,” and the trial court found that the state marshal “left one copy [of the summons and complaint] in the hands of [Melinda], thereby serving her in a manner allowed by . . .
With respect to Joshua, it is well settled that “where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided
on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts.” (Internal quotation marks omitted.) Godbout v. Attanasio, 199 Conn. App. 88, 97, 234 A.3d 1031 (2020). “When issues of fact are necessary to the determination of a court‘s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 833, 826 A.2d 1102 (2003). “It [is] axiomatic . . . that in a case where the pleadings and submissions of the parties themselves necessarily raise a dispute about a fact that is central to the court‘s jurisdictional determination, the court has an independent duty, even in the absence of a part[y‘s] request, to hold an evidentiary hearing prior to resolving the factual dispute.” 307 White Street Realty, LLC v. Beaver Brook Group, LLC, 216 Conn. App. 750, 772 n.13, 286 A.3d 467 (2022).
In the present case, the court‘s conclusion that the plaintiff failed to effectuate proper service on Joshua rested on its determination that the state marshal left only one copy of the summons and complaint with Melinda when he served her in person. The papers submitted by the parties, however, indicate that there was a factual dispute as to that issue: the marshal attested in the return of service that he left two copies at Joshua and Melinda‘s usual place of abode, but Joshua and Melinda averred in their affidavits that no copy was left for Joshua. In the order granting the motion to dismiss, the court relied solely on the papers submitted by the parties to support its determination that “[t]he better evidence is that the marshal left one copy [of the summons and complaint] only in the hands of [Melinda] . . . without leaving a true and attested copy [of the process] for [Joshua].” Likewise, Joshua argues on appeal that “the evidence regarding service of process
was not equally balanced, but weighed in [Joshua‘s] favor” because Joshua and Melinda “filed two affidavits . . . showing that the state marshal‘s return was erroneous.”
It is well established, however, that “an officer‘s return of abode service is prima facie evidence of the facts stated therein . . . [and] a defendant who contests the facts stated in the return bears the initial burden of disproving personal jurisdiction.” (Citation omitted; emphasis in original.) Jimenez v. DeRosa, supra, 109 Conn. App. 341. Where a court‘s jurisdictional determination requires resolution of a factual dispute, “[a]n evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.” (Internal quotation marks omitted.) Godbout v. Attanasio, supra, 199 Conn. App. 97. “Affidavits are insufficient to determine factual issues raised on a motion to dismiss unless . . . they disclose that no genuine issue as to a material fact exists. . . . If a motion to dismiss turns on disputed issues of fact, an evidentiary hearing must be held to afford the parties an opportunity to present evidence and to cross-examine adverse witnesses.” (Citation omitted; emphasis added; internal quotation marks omitted.) Adolphson v. Weinstein, 66 Conn. App. 591, 594 n.3, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002). Because the dispute over whether the marshal left a copy of the summons and complaint for Joshua was critical to the court‘s jurisdictional determination, the court was not permitted to resolve that issue solely on the basis of the affidavits. See, e.g., Weinstein & Wisser, P.C. v. Cornelius, 151 Conn. App. 174, 182-83, 94 A.3d 700 (2014) (remanding for evidentiary hearing where
affidavits raised disputed factual issue regarding whether defendant was served at his usual place of abode). Accordingly, we conclude that the court erred by granting the motion to dismiss as to Joshua without holding an evidentiary hearing.
II
The plaintiff next claims that the court erred in concluding that it lacked personal jurisdiction over Zabetakis and Devine. The plaintiff does not challenge the court‘s determination that she failed to serve Zabetakis and Devine either in person or at their usual place of abode but argues that the court failed to consider evidence that Zabetakis and Devine “evad[ed] service by withholding their residential addresses . . . thus compelling the plaintiff to serve them at their last known professional addresses.” The plaintiff further argues that Practice Book § 10-13 authorizes service of process on an attorney at his or her last known professional address. We disagree.
The following additional procedural history is relevant to this claim. As discussed previously, Zabetakis and Devine moved to dismiss the action for lack of personal jurisdiction on the basis that the state marshal attempted to serve them by leaving the summons and complaint at their respective law firms, rather than serving them through in person or abode service. On March 17, 2023, the plaintiff filed an objection to the motions to dismiss, in which she argued that it was proper to serve Zabetakis and Devine at their place of employment because they did not provide her with information concerning their place of abode. The plaintiff indicated that she had emailed Zabetakis on two occasions to request “legal malpractice contact information,” and that Zabetakis never responded to such emails. The plaintiff attached an affidavit to her objection, in
appropriate notice to the defendants given the information provided and to the best extent possible in accordance with . . . [
This court has recognized that, “if a putative party can be shown to have been evading service of process, [n]otice of a complaint coupled with good faith attempted service is sufficient to confer jurisdiction.” (Internal quotation marks omitted.) Jimenez v. DeRosa, supra, 109 Conn. App. 339-40. “[W]here facts occur which would convince a reasonable man that personal service of process is being attempted, service cannot be avoided by denying service and moving away without consenting to take the document in hand; and service may be effected by depositing the paper in some appropriate place in his presence where it will be most likely to come into his possession . . . .” (Internal quotation marks omitted.) Bove v. Bove, 93 Conn. App. 76, 82, 888 A.2d 123, cert. denied, 277 Conn. 919, 895 A.2d 788 (2006), quoting 72 C.J.S. 629, Process § 43 (b) (1987).
“Whether a defendant has engaged in such evasive maneuvers is a question of fact.” Jimenez v. DeRosa, supra, 109 Conn. App. 340 n.3. When a defendant submits uncontested evidence demonstrating that the plaintiff failed to effectuate service in accordance with statutory requirements, a plaintiff claiming that the defendant evaded service bears the burden of proof. Id., 341.
In the present case, Zabetakis and Devine submitted affidavits averring that they were not served in person or at their usual place of abode, and that they had not authorized anyone at their law offices to accept service on their behalf. The plaintiff did not contest the information contained in those affidavits but, instead, claimed that she was excused from serving Zabetakis and Devine in accordance with
The plaintiff‘s failure to provide evidence to support her assertion that Zabetakis and Devine evaded service is fatal to that claim. See, e.g., Jimenez v. DeRosa, supra, 109 Conn. App. 341 (burden is on plaintiff to prove that defendant evaded service of process). Moreover, even if the plaintiff had presented evidence in support of her claim, the mere fact that a defendant does not voluntarily provide the plaintiff with information concerning his or her place of abode, without more, is insufficient to establish that the defendant evaded service of process. Rather, to establish
Bove v. Bove, supra, 93 Conn. App. 80-81 (plaintiff‘s good faith attempt to serve defendant was sufficient to confer personal jurisdiction where defendant evaded service by running away from sheriff who was attempting to serve him and then, after witnessing sheriff leave process in mailbox, calling postal service to remove process rather than retrieving it). In the present case, there is no evidence that the marshal made any effort to serve Zabetakis or Devine in person, or that either defendant took any action to prevent the plaintiff from effectuating service. See, e.g., Prenderville v. Sinclair, supra, 164 Conn. App. 456 (defendant did not evade service by changing business address without notifying Secretary of the State; “[i]t was instead the plaintiffs’ failure to use an alternative method of service once their original attempt failed that caused the untimely service and return of process“). Accordingly, the record does not support the plaintiff‘s claim that Zabetakis and Devine evaded service of process.
The plaintiff‘s contention that Practice Book § 10-13 authorizes service of process on an attorney at his or her last known professional address also is misplaced. The plaintiff relies on language in § 10-13 providing that “[s]ervice upon the attorney or upon a self-represented party, except service pursuant to Section 10-12 (c), may be by delivering a copy or by mailing to the last known address of the attorney or party. Delivery of a copy within this section means handing it to the attorney or to the party; or leaving it at the attorney‘s office with a person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein . . . .” This court has recognized, however, that § 10-13 does not provide a substitute for compliance with statutory rules of service. Rather, “[§] 10-13 describes the acceptable methods of service of the documents identified in Practice Book § 10-12.” Ciara v. Atlantic Motors, LLC, 223 Conn. App. 164, 170, 307 A.3d 962 (2024), cert. denied, 348
Conn. 951, 309 A.3d 303 (2024). Section 10-12, in turn, provides in relevant part that “[i]t is the responsibility of counsel or a self-represented party filing the same to serve on each other party who has appeared one copy of every pleading subsequent to the original complaint, every written motion . . . and every paper relating to discovery, request, demand, claim, notice or similar paper . . . .” (Emphasis added.) Thus, the provision in § 10-13 allowing for service at an attorney‘s office applies to the service on a “party who has appeared” of pleadings and other papers filed “subsequent to the original complaint“; it does not provide a substitute means of serving process for purposes of commencing an action.5
The plaintiff also argues that, as attorneys, Zabetakis and Devine had an ethical obligation to provide her with information concerning their usual place of abode. In support of that contention, the plaintiff relies on rule 1.4 (a) (4) of the Rules of Professional Conduct, which provides that “[a] lawyer shall . . . promptly comply with reasonable requests for information . . . .” We note that the plaintiff did not present any evidence that she asked Zabetakis and Devine for their home addresses. More importantly, as the commentary makes clear, rule 1.4 governs communication during the attorney-client relationship and is intended to ensure that “the client effectively [is able] to participate in the representation.” Rules of Professional Conduct 1.4, commentary. The rule does not impose on attorneys an obligation to disclose their home address to a plaintiff in the context of an impending lawsuit.6 Accordingly, we conclude that the trial court properly dismissed the action as to Zabetakis and Devine for lack of personal jurisdiction.7
The judgment is reversed with respect to the order dismissing the action as to Joshua Prince and Melinda Prince and the case is remanded with direction to deny the motion to dismiss as to Melinda Prince and for an evidentiary hearing to determine whether the plaintiff properly effectuated service of process on Joshua Prince; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.