TD Bank, N.A. v. Salce
TD Bank, N.A. v. Salce
Opinion of the Court
*759In this action seeking to collect on a promissory note, the defendant, Anthony H. Salce, Jr.,
A review of the record reveals the following facts. On April 18, 2008, the parties *321executed a revolving term *760promissory note (note) in which the defendant promised to repay the plaintiff $500,000 with interest. The note contained default and demand provisions. In a letter dated July 11, 2014, the plaintiff stated that the defendant was in default under the terms and conditions of the note and demanded payment in full on the outstanding balance.
On September 18, 2014, the plaintiff commenced the present action with a single count complaint to recover payment, alleging that the defendant had defaulted under the terms of the note. The return of service attests that the marshal left the writ, summons, complaint, affidavit, and direction for attachment at the defendant's usual place of abode in Fairfield (Fairfield property). On the same day, the marshal left two copies of those documents with the Secretary of the State and mailed a copy of them, via certified mail, return receipt requested, to the defendant's Naples, Florida residence.
On November 13, 2014, the defendant filed a motion to dismiss for lack of personal jurisdiction, which was denied by Judge Gilardi on January 20, 2015. On January 27, 2016, the plaintiff filed a motion for summary judgment, which was granted as to liability only, by Judge Radcliffe on March 7, 2016. After conducting a hearing in damages on June 7, 2016, Judge Stodolink rendered judgment for the plaintiff, ordering recovery against the defendant for $548,557.79 in damages. This appeal followed. On August 31, 2016, Judge Gilardi issued an articulation on the denial of the motion to dismiss. Additional facts and procedural history will be set forth as necessary.
I
The defendant claims that the trial court erred in denying his motion to dismiss for lack of personal jurisdiction due to insufficient service of process. The defendant presents two arguments in support of his claim.
*761First, he asserts that although he owned the real property in Fairfield at which the abode service was made, the Fairfield property was not his usual place of abode. Second, he did not receive the certified mail containing the writ, summons, complaint, affidavit, and direction for attachment at his Florida residence. The plaintiff responds that service of process was properly effectuated by service over a nonresident individual pursuant to General Statutes § 52-59b(c),
*322We begin by setting forth the applicable standard of review. "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.... The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that *762alone.... Where, however, as here, the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ...." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co. ,
As an initial matter, the defendant did not challenge before the court that § 52-59b(a) authorized personal jurisdiction over him as a nonresident individual so long as its provisions were complied with.
The defendant's claim that he must have received the documents constituting process in order for service to *763be effective presents a question of statutory construction that requires plenary review. Doyle Group v. Alaskans for Cuddy ,
Section 52-59b(c) provides in relevant part that, "[t]he process shall be served ... upon the Secretary of the State ... at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at the defendant's last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon ...." In the present case, the statute does not require what the defendant claims, i.e., that he must receive the documents constituting process in order for service to be effective. The marshal's affidavit states that service was *764made upon the defendant pursuant to § 52-59b(c) on September 18, 2014, by leaving two true and attested copies of the process with the Secretary of the State and sending, via certified mail, return receipt requested, a true and attested copy of the process to the defendant's Florida address.
Nonetheless, the marshal's supplemental return included a certified mail return receipt from the delivery of the process to the defendant's Florida address. The return receipt contained a signature in the section designated for the addressee. The plaintiff also submitted a Florida property tax bill and a Florida property appraisal summary, both of which contained the defendant's name and the same Florida address. Additionally, the plaintiff's demand letter dated July 11, 2014, was sent, via certified mail, to this same Florida address, and confirmation of delivery was verified by a signed return receipt.
In his articulation, Judge Gilardi wrote, "[t]he court finds it significant that aside from his two self-serving statements, the defendant did not submit a single affidavit or any documentary evidence in support of his claims not on the record."
II
The defendant also claims that the trial court improperly rendered summary judgment in favor of the plaintiff because his second special defense of promissory estoppel raised a genuine issue of material fact. In his second special defense, the defendant alleged that "[t]he [p]laintiff is estopped from prosecuting this lawsuit in that the [p]laintiff agreed to a note modification and stated that appropriate documentation would be prepared and issued to the [d]efendant, however, the [p]laintiff then failed or refused to issue said documents." The plaintiff contends that the defendant has failed to substantiate his claim and failed to present proper evidence establishing the existence of a genuine issue of material fact.
"The standard of review of a trial court's decision to grant summary judgment is well established. [W]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The test is whether a party would be entitled to a directed verdict *766on the same facts.... This court's review of the trial court's decision to grant summary judgment in favor of the defendants is plenary." (Citation omitted; internal quotation marks omitted.) Heisinger v. Cleary ,
This court has previously held that "a single valid defense may defeat recovery, [and thus a] claimant's motion for summary judgment should be denied when any defense presents significant fact issues that should be tried." (Internal quotation marks omitted.) Union Trust Co. v. Jackson ,
"[U]nder the doctrine of promissory estoppel, [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a *767promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all.... Further, *325the promise must reflect a present intent to commit as distinguished from a mere statement of intent to contract in the future.... [A] mere expression of intention, hope, desire, or opinion, which shows no real commitment, cannot be expected to induce reliance ...." (Citation omitted; internal quotation marks omitted.) Bellsite Development, LLC v. Monroe ,
In the present case, the defendant's affidavit states that he participated in settlement discussions with "TD Bank and Silverpoint Capital regarding a resolution of all of [his] outstanding obligations to TD Bank." He further states that he "was led to believe that the settlement which was reached encompassed all of [his] loans, including the loan which forms the basis of the lawsuit in this case." As support for his assertion, the defendant *768provided a copy of a letter that he sent to the plaintiff dated November 12, 2014, listing dates and names of employees whom the defendant spoke with regarding a "note modification for the subject property."
The plaintiff, through an affidavit and business records, countered that the loan modification referred to by the defendant was for a different loan. The plaintiff also asserted that the defendant stopped making payments in 2011, whereas the alleged loan modification was not discussed, and allegedly did not occur, until 2014.
Regarding the second special defense, Judge Radcliffe determined as a matter of law that "the elements of promissory estoppel have not been met," and that there was, with respect to the claims advanced by the defendant, no genuine issue of fact as to such elements of promissory estoppel or to the defendant's lack of reliance. The court noted in support of its conclusion that the defendant had not raised genuine issues of material fact concerning the elements of promissory estoppel or reliance, that the defendant had stopped making payments in 2011, that the settlement discussions held three years later in 2014 were "merely a promise to negotiate, not a promise to do something concrete," and that "there [was] no written document which indicate[d] that this note ever became part and parcel to any global or, perhaps more accurately, hemispheric settlement." In other words, the defendant had not satisfied his burden of establishing a genuine issue of material fact or that there was any disputed question of law concerning the application of promissory estoppel as set forth in his second special defense.
"[I]t is not enough ... merely to assert the existence of such a disputed issue ... [instead] the genuine issue aspect requires the party to bring forward before trial evidentiary facts, or substantial evidence *769outside of the pleadings, from which the material facts alleged in *326the pleadings can warrantably be inferred.... Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue." (Internal quotation marks omitted.) Himmelstein v. Windsor ,
We are mindful that, "[g]enerally, appellate courts presume that the trial court knows and has applied the law correctly in the absence of evidence to the contrary.... [I]t is the burden of the appellant to show to the contrary." (Citation omitted; internal quotation marks omitted.) Havis-Carbone v. Carbone ,
Moreover, a necessary element of promissory estoppel requires that "the other party must change its position in reliance on those facts, thereby incurring some injury." (Internal quotation marks omitted.) Torringford Farms Assn., Inc. v. Torrington , supra,
In summary, we conclude that because the defendant failed to raise a genuine issue of material fact, or to establish that summary judgment was not appropriate *770as a matter of law, the court properly granted the plaintiff's motion for summary judgment.
The judgment is affirmed.
The codefendant, John J. Quinn, is a nonappearing party. Throughout this opinion, all references to the defendant are to Salce.
General Statutes § 52-59b(c) provides in relevant part: "Any nonresident individual ... over whom a court may exercise personal jurisdiction, as provided in subsection (a) of this section, shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual ... may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual ... personally. The process shall be served by the officer to whom the same is directed upon the Secretary of the State by leaving with or at the office of the Secretary of the State, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at the defendant's last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State. The officer serving such process upon the Secretary of the State shall leave with the Secretary of the State, at the time of service, a fee of twenty-five dollars, which fee shall be taxed in favor of the plaintiff in the plaintiff's costs if the plaintiff prevails in any such action. The Secretary of the State shall keep a record of each such process and the day and hour of service."
General Statutes § 52-57(a) provides: "Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state."
General Statutes § 52-59b(a) states in relevant part: "[A] court may exercise personal jurisdiction over any nonresident individual ... who in person or through an agent ... (4) owns, uses or possesses any real property situated within the state ...."
The defendant has not raised any due process claims in this appeal; see Cogswell v. American Transit Ins. Co., supra,
The plaintiff's summons specified a return date of October 14, 2014; thus, service was made before the twelve day statutory requirement.
The defendant attested that (1) he owned the Fairfield property, but it was not his abode; and (2) he never received service of process at his Florida address.
In making this determination, the court seems to suggest that a factual dispute exists between the plaintiff and the defendant as to whether the evidence submitted by the plaintiff satisfied the jurisdictional requirements under § 52-59b(c). Because § 52-59b(c) does not require proof of actual receipt of service of process so long as its requirements are met, whether the plaintiff received service of process is not necessary to our analysis, although we note that the court's finding that the defendant actually received the process has not been challenged as clearly erroneous.
Because we determine that the court properly found that service of process was effectuated pursuant to § 52-59b, we do not address the issue of abode service under § 52-57(a).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.