Nationstar Mortgage, LLC v. Gabriel

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      NATIONSTAR MORTGAGE, LLC v. ROBERT
                GABRIEL ET AL.
                  (AC 42747)
                      Moll, Suarez and DiPentima, Js.

                                  Syllabus

The plaintiff mortgage company brought a summary process action against
   the defendants, tenants of residential property, seeking immediate pos-
   session of the premises on the ground that the defendants’ rights to
   occupy had terminated. According to the return of service, each defen-
   dant was served with a copy of the notice to quit by abode service.
   Following the defendants’ failure to plead, the trial court granted the
   plaintiff’s motion for default and rendered judgment of possession in
   favor of the plaintiff. The defendants thereafter filed a motion to dismiss
   for lack of subject matter jurisdiction, claiming that the notice to quit
   was not served on all of the designated occupants of the property, as
   required by statute (§ 47a-23). The defendants filed an affidavit of one
   of the occupants in support thereof and also filed a motion to open the
   judgment of possession. The trial court denied both of the defendants’
   motions. On appeal, the defendants claim that the trial court erred in
   denying their request for an evidentiary hearing despite their having
   raised a disputed issue of fact and that the absence of an evidentiary
   hearing led to clearly erroneous findings by the trial court. Held that
   the trial court properly denied the defendants’ motion to dismiss, as
   there was ample evidence to support the court’s finding that the defen-
   dants were served with the notice to quit; the marshal’s return of service
   was prima facie evidence that each defendant had been served by abode
   service, the affidavit submitted by the defendants, which was the only
   evidence submitted in support of their motion, did nothing to create a
   genuine dispute as to any pertinent jurisdictional fact, as it merely
   acknowledged that the affiant was serviced and made no statement
   based on the personal knowledge that the other defendants were not
   served, and there was no affidavit or other documentation from any
   other defendant to demonstrate that he or she had not been served in
   any manner, and, therefore, the court was not required to hold an
   evidentiary hearing before ruling on the motion to dismiss.
        Argued September 10—officially released October 20, 2020

                            Procedural History

  Summary process action, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
Housing Session at Norwalk, and tried to the court,
Spader, J.; judgment for the plaintiff, from which the
defendants appealed to this court. Affirmed.
   Harold R. Burke, for the appellants (defendants).
  Peter A. Ventre, with whom, on the brief, was Crystal
L. Cooke, for the appellee (plaintiff).
                         Opinion

  MOLL, J. In this summary process action, the defen-
dants, Robert Gabriel, Pamela P. Gabriel, Elizabeth
Gabriel, John Doe I, John Doe II, Jane Doe I, and Jane
Doe II, appeal from the judgment of possession ren-
dered by the trial court in favor of the plaintiff,
Nationstar Mortgage, LLC, as well as from the court’s
denials of their postjudgment motions to open and to
dismiss for lack of subject matter jurisdiction. On
appeal, the defendants limit their challenge to the
court’s denial of their motion to dismiss. We affirm the
judgment of the trial court.
   The following facts and procedural history are rele-
vant to our resolution of this appeal. In February, 2019,
the plaintiff brought the underlying summary process
action to evict the defendants from residential real prop-
erty located at 21 Richmond Hill Road in Greenwich
(property), after several years of protracted foreclosure
proceedings.1 The notice to quit, dated January 16, 2019,
directed the defendants to quit possession or occupancy
of the property on or before January 30, 2019 (notice
to quit), on the ground that they originally had the right
or privilege to occupy the property but that such right
or privilege had terminated. According to the return of
service completed by the state marshal in connection
with the notice to quit (return of service), each defen-
dant was served on January 21, 2019, with a copy thereof
by way of abode service at the address of the subject
property and ‘‘afterwards, in Bridgeport, on the 21st of
January, 2019’’ (this latter language did not appear in
the return of service with respect to Jane Doe II). The
defendants, through their attorney, filed an appearance
on February 25, 2019, but failed to file an answer or
other responsive pleading. On March 14, 2019, the plain-
tiff filed a motion for default for failure to plead and
for judgment of possession. See General Statutes § 47a-
26a.2 On March 20, 2019, following the defendants’ fail-
ure to plead within three days,3 the trial court granted
the plaintiff’s motion for default and rendered a judg-
ment of possession in favor of the plaintiff.
   On March 25, 2019, the defendants filed a postjudg-
ment motion to dismiss for lack of subject matter juris-
diction, claiming that the notice to quit was not served
on all designated occupants of the property, as required
by General Statutes § 47a-23 (a) and (c).4 In support of
their motion to dismiss, the defendants submitted the
affidavit of Stephen Gabriel,5 in which he acknowledged
residing at the property and accepting service on Janu-
ary 21, 2019, of one copy of the notice to quit. Addition-
ally, on March 25, 2019, the defendants filed a motion
to open the judgment of possession predicated on the
jurisdictional claim raised in their motion to dismiss.
On March 27, 2019, the trial court denied both of the
defendants’ motions without a hearing and issued an
accompanying memorandum of decision. This appeal
followed. Additional facts will be set forth as necessary.
  The defendants claim on appeal that (1) the trial
court improperly denied their request for an evidentiary
hearing despite their having raised a disputed issue of
fact and (2) the absence of an evidentiary hearing led
to clearly erroneous factual findings by the trial court.6
These arguments, which we address together, are
unavailing.7
  ‘‘Our standard of review of a trial court’s findings of
fact and conclusions of law in connection with a motion
to dismiss is well settled. A finding of fact will not be
disturbed unless it is clearly erroneous. . . . [If] the
legal conclusions of the court are challenged, we must
determine whether they are legally and logically correct
and whether they find support in the facts. . . . Thus,
our review of the trial court’s ultimate legal conclusion
and resulting [denial] of the motion to dismiss will be de
novo.’’ (Internal quotation marks omitted.) JPMorgan
Chase Bank National Assn. v. Simoulidis, 161 Conn.
App. 133, 135–36, 126 A.3d 1098 (2015), cert. denied,
320 Conn. 913, 130 A.3d 266 (2016).
   ‘‘Service of a valid notice to quit . . . is a condition
precedent to a summary process action under § 47a-23
that implicates the trial court’s subject matter jurisdic-
tion over that action.’’ (Internal quotation marks omit-
ted.) Lyons v. Citron, 182 Conn. App. 725, 731, 191 A.3d
239 (2018). Service of a notice to quit must comply with
§ 47a-23 (c), which provides in relevant part: ‘‘A copy
of such notice shall be delivered to each lessee or occu-
pant or left at such lessee’s or occupant’s place of resi-
dence . . . .’’ ‘‘The failure to comply with the statutory
requirements deprives a court of jurisdiction to hear
the summary process action.’’ Bridgeport v. Barbour-
Daniel Electronics, Inc., 16 Conn. App. 574, 582, 548
A.2d 744, cert. denied, 209 Conn. 826, 552 A.2d 432
(1988).
    ‘‘Due process does not mandate full evidentiary hear-
ings on all matters, and not all situations calling for
procedural safeguards call for the same kind of proce-
dure. . . . So long as the procedure afforded ade-
quately protects the individual interests at stake, there
is no reason to impose substantially greater burdens
. . . under the guise of due process.’’ (Internal quota-
tion marks omitted.) Property Asset Management, Inc.
v. Lazarte, 163 Conn. App. 737, 748, 138 A.3d 290 (2016).
‘‘[If] 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.’’
Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009);
see also Property Asset Management, Inc. v. Lazarte,
supra, 749 (‘‘[a] court is required to hold an evidentiary
hearing before adjudicating a motion to dismiss only if
there is a genuine dispute as to some pertinent jurisdic-
tional fact’’).
   In the present case, there was no genuine dispute
as to any jurisdictional fact necessary to find that the
defendants had been served with the notice to quit. The
record before the court revealed that all defendants
had been served. First, the marshal’s return of service
was prima facie evidence that each defendant had been
served, at a minimum, by abode service. See Jenkins
v. Bishop Apartments, Inc., 144 Conn. 389, 390, 132
A.2d 573 (1957) (‘‘[t]he return is prima facie evidence
of the facts stated therein’’). Second, as a result of the
entry of default against the defendants for their failure
to plead, all material facts in the complaint were deemed
admitted. See Catalina v. Nicolelli, 90 Conn. App. 219,
221, 876 A.2d 588 (2005). Such allegations included the
following: ‘‘On January 21, 2019, the plaintiff caused
a notice to be duly served on the defendants to quit
possession of the premises on or before January 30,
2019, as required by law. The original notice to quit is
attached hereto and marked [as] exhibit A.’’ As the
trial court correctly observed, the affidavit of Stephen
Gabriel, which was the only evidence that the defen-
dants submitted in support of their motion to dismiss,
did nothing to create a genuine dispute as to any perti-
nent jurisdictional fact. The affidavit merely acknowl-
edges that Stephen Gabriel was in fact served and
makes no statement based on any personal knowledge
that the other defendants were not served. The aver-
ment in the affidavit stating that Stephen Gabriel
received only one copy has little, if any, probative value,
as only one copy of the notice to quit was necessary to
effect service on him, and there was no representation
made in the marshal’s return of service that seven cop-
ies were left with Stephen Gabriel. Finally, and perhaps
most notably, there was no affidavit or other documen-
tation from any defendant to demonstrate that he or
she had not been served in any manner. In light of
the foregoing, the court was not required to hold an
evidentiary hearing before ruling on the defendants’
motion to dismiss. Because there was ample evidence
to support the court’s finding that the defendants were
served with the notice to quit, the court properly denied
the motion to dismiss.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     In a previous foreclosure action filed in 2010 against Robert Gabriel and
Pamela P. Gabriel, a judgment of foreclosure entered in favor of the plaintiff
in 2013, and in October, 2018, the plaintiff obtained title to the subject
property. See Aurora Loan Services, LLC v. Gabriel, Superior Court, judicial
district of Stamford-Norwalk, Docket No. CV-XX-XXXXXXX-S (April 24, 2018).
   2
     General Statutes § 47a-26a provides: ‘‘If the defendant appears but does
not plead within two days after the return day, the complainant may file a
motion for judgment for failure to plead, served upon the defendant in the
manner provided in the rules adopted by the judges of the Superior Court
for the service of pleadings. If the defendant fails to plead within three days
after receipt of such motion by the clerk, the court shall forthwith enter
judgment that the complainant recover possession or occupancy with his
costs.’’
   3
     Practice Book § 17-30 (b) provides: ‘‘If the defendant in a summary
process action appears but does not plead within two days after the return
day or within three days after the filing of the preceding pleading or motion,
the plaintiff may file a motion for judgment for failure to plead, served in
accordance with Sections 10-12 through 10-17. If the defendant fails to plead
within three days after receipt of such motion by the clerk, the judicial
authority shall forthwith enter judgment that the plaintiff recover possession
or occupancy with costs.’’
   4
     General Statutes § 47a-23 provides in relevant part: ‘‘(a) When the owner
. . . desires to obtain possession or occupancy of any land or building . . .
and . . . (3) when one originally had the right or privilege to occupy such
premises but such right or privilege has terminated . . . such owner . . .
shall give notice to each . . . occupant to quit possession or occupancy of
such land, building, apartment or dwelling unit . . . before the time speci-
fied in the notice for the lessee or occupant to quit possession or occupancy.
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   ‘‘(c) A copy of such notice shall be delivered to each . . . occupant or
left at such . . . occupant’s place of residence . . . . Delivery of such
notice may be made on any day of the week. . . .’’
   5
     Stephen Gabriel is one of the Doe defendants.
   6
     The defendants do not challenge on appeal the contents of the notice
to quit, the granting of the motion for default for failure to plead, or the
entry of judgment of possession. Their sole claim relates to the denial of
their motion to dismiss on the ground of lack of service of the notice to
quit on all defendants.
   7
     We pause to note that, although the defendants failed to analyze in their
appellate brief the court’s denial of their motion to open the judgment, we
nonetheless address the merits of their claim that the trial court improperly
denied their motion to dismiss. We do so because the motions, which were
based on nearly identical grounds and sought the same basic relief, were
inextricably intertwined and, under the circumstances of the present case,
to dispose of the defendants’ appeal on the basis of an overly technical
application of mootness principles would exalt form over substance.
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