Opinion
No. CV-98-0581210
June 22, 1999
RULING RE: MOTION FOR TERMINATION OF STATUTORY CONTINUANCE (#107)
On March 26, 1999, plaintiff filed a motion for statutory continuance pursuant to General Statutes § 52-87, which was granted by the court. Plaintiff has moved for termination of the statutory continuance, pursuant to General Statutes §§ 52-87 and 52-88, on the basis that defendant "has received notice of [the] action pending against him as evidenced by the signature of his authorized agent on the return receipt" for the certified mailing.
General Statutes § 52-87 (b) provides, in pertinent part: "[i]f the defendant is not an inhabitant or a resident of this state at the commencement of the action and does not appear therein, the court shall continue or postpone it for three months. . . ." See also: Practice Book § 9-1.
General Statutes § 52-87 (d) provides that "[a] continuance or postponement under this section . . . shall terminate if actual notice is shown in accordance with section 52-88." (Emphasis added.) § 52-88 states that "[a] continuance . . . prescribed in Section 52-87 or this section . . . shall terminate whenever the court finds that the absent or nonresident defendant, or his authorized agent or attorney, has received actual notice of the pendency of the case at least twelve days prior to such finding, and thereupon, unless some special reason is shown for further delay, the cause may be brought to trial." (Emphasis added.) See also: Practice Book § 9-2. In order to terminate a continuance granted under § 52-87, "[a]ctual notice to the defendant must be proven by the plaintiff." City of Milford v. Bencivenga, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 032109 (November 7, 1990), citing Phoenix State Bank Trust Co. v. Whitcomb, 121 Conn. 32, 183 A. 5 (1936) and Gaul v. Baker, 108 Conn. 173, 143 A. 51 (1928)
Plaintiff has attempted to serve defendant, a nonresident, by effecting constructive service, as opposed to personal or abode service, sending the process by certified mail, return receipt requested, to an address in North Carolina. Plaintiff now moves to terminate the statutory continuance on the basis that defendant has received actual notice "as evidenced by the signature of his authorized agent on the return receipt." With respect to personal and abode service there is a presumption that the facts alleged in the officer's return are true and, accordingly, a return demonstrating personal or abode service raises the presumption of actual notice and jurisdiction; see R. Bollier, N. Cioffi, K. Emmett, J. Kavanewsky L. Murphy, Stephenson's Connecticut Civil Procedure (3d Ed. 1997) § 14, p. 26; however, actual notice and jurisdiction based on constructive service "can be established only on a showing of facts which do not appear in the return and hence the return alone cannot raise a presumption of jurisdiction" or actual notice. Id.; see City of Milford v. Bencivenga, supra, Superior Court, Docket No. 032109 (noting that plaintiff must prove actual notice to defendant in order to terminate statutory continuance); Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607 fn. 9, 674 A.2d 426 (1996) (discussing distinction between burden of proving jurisdiction for personal or abode service and constructive service); Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 53-54, CT Page 6686 459 A.2d 503 (1983).
General Statutes § 52-57a provides that the method of service of process upon a nonresident defendant is the same as the manner in which service is made within the state, i.e., "by leaving a true and attested copy of [the process] . . . with the defendant, or at his usual place of abode." "`Constructive' service embraces all other methods of handling process so as to obtain in personam jurisdiction of a defendant, whether by delivery to some other person within the state, by delivery (personally or by mail) to the defendant outside the territorial jurisdiction of the court, or by publication." R. Bollier, N. Cioffi, K. Emmett, J. Kavanewsky L. Murphy, Stephenson's Connecticut Civil Procedure 3d Ed. 1997) § 14, p. 25. In order to effect constructive service, a plaintiff must make an application for an order of notice pursuant to Practice Book § 11-4. § 11-4 provides: "Applications for orders of notice, whether made to a court, a judge, a clerk, or an assistant clerk, shall be made in writing, shall state the residence of the party whom the notice is sought to reach or that all reasonable efforts have been made to ascertain the residence and have failed, and shall further state what notice is considered most likely to come to the attention of such person, with the reasons therefore, unless they are evident; and such applications shall become a part of the file of the case." See also: General Statutes § 52-68 ("The Superior Court, and the judges, clerks and assistant clerks thereof, may, except where it is otherwise specially provided by law, make such order as is deemed reasonable, in regard to the notice which shall be given of the institution or pendency of all complaints, writs of error and appeals from probate, which may be brought to or pending in the Superior Court, when the adverse party, or any persons so interested therein that they ought to be made parties thereto, reside out of the state. . . .").
Plaintiff in the present action filed an "Application for Order of Notice," presumably pursuant to Practice Book § 11-4, seeking an order directing that notice of the action be given to defendant by certified mail. Prior to any action by the court upon the application, the plaintiff sent process, via certified mail, to an address in North Carolina.
Here, plaintiff has failed to demonstrate that defendant received actual notice of the pending action. Although "[a] properly authenticated registered mail return receipt card may be used to establish that the defendant received actual notice," plaintiff must "prove that the signature on the registered return receipt is that of the nonresident defendant" or his authorized agent. City of Milford v. Bencivenga, supra, Superior Court, Docket No. 032109. The signature on the registered mail return receipt card attached to the supplemental return is not that of the defendant, and the papers filed by plaintiff provide no evidence that the person who actually signed for the registered mail was in fact defendant's "authorized agent." Therefore, it is not possible for this court to determine whether defendant, in fact, received actual notice of this action. Accordingly, plaintiff's motion to terminate the statutory continuance is hereby denied.
Mulcany, J.