People's United Bank, National Assn. v. Purcell ( 2019 )

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PEOPLE’S UNITED BANK, NATIONAL ASSOCIATION
v. KEVIN PURCELL ET AL.
(AC 40408)
Prescott, Elgo and Bear, Js.
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendant P. A state marshal had served P at his usual
place of abode and, after P was defaulted for failure to appear, the trial
court rendered judgment of foreclosure by sale. P then filed a motion
to open the judgment and to dismiss the plaintiff’s action on the ground
that the court lacked personal jurisdiction over him because he had
never been served with the writ of summons and complaint. The court
conducted an evidentiary hearing in which P provided two addresses
and testified that his usual place of abode had been at a different address
at the time service of process was made. In denying P’s motion, the
court determined that P’s testimony was inconsistent and incredible,
and credited the testimony of the state marshal, finding that it conformed
with and expanded on the information in her return of service. On P’s
appeal to this court, held that the trial court did not abuse its discretion
in denying P’s motion to open the judgment and to dismiss the plaintiff’s
action, as P failed to demonstrate that the court’s factual findings were
clearly erroneous; that court was not required to conclude that service
of process was required to be made at the different address that P
claimed was his usual place of abode, as service of process was valid
at either of P’s addresses, the return of service stated that P was served
at his usual place of abode, and the state marshal testified that a neighbor
of P had told her that P lived at the address where she made service,
which also was identified as P’s address in a letter from P to the plaintiff,
and the court properly weighed the credibility of the witnesses in making
its findings of fact and in concluding that the defendant did not present
sufficient evidence to show insufficient service of process on him by
the state marshal.
Submitted on briefs November 26, 2018—officially released January 29, 2019
Procedural History
Action to foreclose a mortgage on certain real prop-
erty of the named defendant et al., and for other relief,
brought to the Superior Court in the judicial district of
Hartford, where the named defendant was defaulted
for failure to appear; thereafter, the court, Robaina, J.,
granted the plaintiff’s motion for a judgment of foreclo-
sure and rendered judgment of foreclosure by sale; sub-
sequently, the court, Dubay, J., denied the named
defendant’s motion to open the judgment and to dis-
miss; thereafter, the court, Dubay, J., issued an articula-
tion of its decision and denied the named defendant’s
motion for reconsideration, and the named defendant
appealed to this court. Affirmed.
Loida John-Nicholson filed a brief for the appellant
(named defendant).
Robert J. Piscitelli filed a brief for the appellee
(plaintiff).
Opinion
PER CURIAM. The defendant Kevin Purcell1 appeals
following the trial court’s denial of his motion to open
the judgment of foreclosure by sale and to dismiss the
action. Specifically, the defendant claims that the trial
court should have dismissed the action because it
lacked personal jurisdiction over him due to insufficient
service of process on him. We affirm the judgment of
the trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff, People’s United Bank,
National Association, commenced this action against
the defendant on June 3, 2016, seeking to foreclose on
his mortgaged property located at 180 Palm Street in
Hartford. The state marshal’s return of service indicated
that she served the defendant by leaving the writ of
summons and a copy of the complaint at the defendant’s
usual place of abode, the 180 Palm Street address.
On July 26, 2016, the defendant was defaulted for
failure to appear. The court subsequently rendered a
judgment of foreclosure by sale on October 31, 2016.
On February 3, 2017, the defendant filed a motion to
open the judgment and to dismiss the action, arguing
that the court lacked jurisdiction over him because
he was never served with the writ of summons and
complaint.2 After an evidentiary hearing, at which both
the defendant and the marshal who served him by abode
service testified, the court denied the defendant’s
motion to open the judgment and to dismiss the plain-
tiff’s action, and set a new sale date.
The defendant next filed a motion to reargue his
motion to open the judgment and for the court to recon-
sider its ruling, which the court also denied. The defen-
dant then filed this appeal and subsequently moved
for an articulation of the court’s decision denying his
motion to open the judgment and to dismiss the plain-
tiff’s action. In its articulation, the trial court stated that
it had credited the testimony of the marshal, noting that
her testimony conformed with and expanded upon the
information provided in her return of service. Moreover,
the court also found that the defendant’s testimony was
‘‘inconsistent and entirely incredible.’’
On appeal, the defendant argues that the court
improperly denied his motion to open the judgment of
foreclosure by sale and to dismiss the action for lack
of personal jurisdiction. We disagree.
We first set forth the applicable legal principles and
standard of review that guide our analysis. ‘‘We review
a trial court’s ruling on motions to open under an abuse
of discretion standard. . . . Under this standard, we
give every reasonable presumption in favor of a deci-
sion’s correctness and will disturb the decision only
where the trial court acted unreasonably or in a clear
tion marks omitted.) GMAC Mortgage, LLC v. Ford, 178
Conn. App. 287, 294–95, 175 A.3d 582 (2017).
Further, ‘‘[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. . . .
When . . . the defendant is a resident of Connecticut
who claims that no valid abode service has been made
upon her that would give the court jurisdiction over her
person, the defendant bears the burden of disproving
personal jurisdiction. The general rule putting the bur-
den of proof on the defendant as to jurisdictional issues
raised is based on the presumption of the truth of the
matters stated in the officer’s return. 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.) Knutson
Mortgage Corp. v. Bernier, 67 Conn. App. 768, 771, 789
A.2d 528 (2002).
‘‘Whether a particular place is the usual place of
abode of a defendant is a question of fact. Although
the sheriff’s return is prima facie evidence of the facts
stated therein, it may be contradicted and facts may
be introduced to show otherwise.’’ (Internal quotation
marks omitted.) Tax Collector v. Stettinger, 79 Conn.
App. 823, 825, 832 A.2d 75 (2003).
‘‘It is well established that we review findings of fact
under the clearly erroneous standard.’’ Id., 825. ‘‘A find-
ing of fact is clearly erroneous when there is no evi-
dence in the record to support it . . . or when although
there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed. . . .
Because it is the trial court’s function to weigh the
evidence and determine credibility, we give great defer-
ence to its findings. . . . In reviewing factual findings,
[w]e do not examine the record to determine whether
the [court] could have reached a conclusion other than
the one reached. . . . Instead, we make every reason-
able presumption . . . in favor of the trial court’s rul-
ing’’ (Internal quotation marks omitted.) Gianetti v.
Norwalk Hospital, 304 Conn. 754, 765–66, 43 A.3d
567 (2012).
Our review of the record leads us to conclude that
the defendant has not demonstrated that the court’s
findings of fact were clearly erroneous. The return
states that the marshal served the defendant by leaving
a true and attested copy of the complaint at 180 Palm
Street, the defendant’s usual place of abode. At the
evidentiary hearing, the marshal testified that a neigh-
bor of the defendant, when asked by the marshal, stated
that the defendant lived at 180 Palm Street. Additionally,
the plaintiff produced a letter from the defendant
addressed to the plaintiff, which, in its upper right cor-
ner, stated the defendant’s address as 180 Palm Street.
Conversely, the defendant testified that he had not
lived at 180 Palm Street for fourteen years and that his
usual place of abode at the time of service was 86
Plainfield Street. When the defendant was asked to pro-
vide his name and address for the record, however, he
provided two different addresses.3 Although the defen-
dant submitted an affidavit, his driver’s license, tax
records, and other documents to show that he no longer
resided at 180 Palm Street, and that his place of abode
at the time of service was 86 Plainfield Street, the court
was not required to conclude that service was required
to be made at that location. See Tax Collector v. Stet-
tinger, supra, 79 Conn. App. 827. In fact, ‘‘[o]ne may
have two or more places of residence within a [s]tate
. . . and each may be a usual place of abode. . . .
Service of process will be valid if made in either of the
usual places of abode.’’ (Emphasis in original; internal
quotation marks omitted.) Id.
In summary, the defendant moved to open the judg-
ment of foreclosure by sale and to dismiss the action
for lack of personal jurisdiction over him. The court
held an evidentiary hearing on the motion. The defen-
dant and the marshal testified at the hearing. The court,
after finding that the defendant’s testimony was incon-
sistent and entirely incredible and that the marshal’s
testimony was credible, denied the motion. On appeal,
the defendant has not demonstrated that the court’s
factual findings were clearly erroneous. The court prop-
erly weighed the credibility of the witnesses in making
its findings of fact and in concluding that the defendant
did not present sufficient evidence to show insufficient
service of process on him. The court thus did not abuse
its discretion in denying the defendant’s motion to open
the judgment and to dismiss the action.
The judgment is affirmed and the case is remanded
for the purpose of setting a new sale date.
1
The other named defendants, Connecticut Light & Power Company, the
city of Hartford, Esther Purcell, also known as Ester Purcell, and Saint
Francis Hospital and Medical Center did not participate in this appeal. For
clarity, we refer to Kevin Purcell as the defendant. Nonappearing parties
included Nicole Morant, Unifund CCR Partners, and The Palisades Collec-
tion, LLC.
2
Prior to the filing of the defendant’s motion and the sale date, the court
denied a motion to open the judgment that was filed by Esther Purcell, the
defendant’s mother and a co-owner of the property at issue. The sale date
was subsequently reset for March 25, 2017.
3
The defendant stated on the record that his home address was ‘‘196
Plainfield Street—Colebrook Street’’ in Hartford.