KNIPPLE v. VIKING COMMUNICATIONS

236 Conn. 602 (1996) | Cited 26 times | Supreme Court of Connecticut | April 16, 1996

This is an appeal from a judgment of dismissal for lack ofpersonal jurisdiction over a foreign corporation and a nonresidentindividual. The issue presented is whether the plaintiffs have satisfiedthe requirements of our long arm statutes.

In April, 1994, the plaintiffs, Michael and Stephanie Knipple, filed afive count complaint against the defendants, Viking Communications, Ltd.(Viking), and James McClelland, a sales director for Viking.1 BothViking,

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     a foreign corporation, and McClelland, a nonresident individual,were constructively served with process.2 Thereafter, the defendantsappeared and filed a motion to dismiss pursuant to Practice Book §§ 142 and143 for lack of personal jurisdiction, forum non conveniens andinsufficient service of process.3 The plaintiffs then, pursuant to §143, filed a memorandum in opposition to the motion to dismiss accompaniedby an affidavit by Michael Knipple. Subsequently, the defendants filed anaffidavit by William Harris, a manager at Viking, in support of theirmotion.4 Although some of the facts pertaining to jurisdiction weredisputed, neither party requested an evidentiary hearing. At shortcalendar, the trial court heard argument on the motion to dismiss, and onOctober 31, 1994, granted the motion on the basis of the plaintiffs'failure to prove the applicability of our state long arm statutes. Wereverse the trial

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     court's judgment dismissing the action as to Viking, butaffirm the judgment as to McClelland.

In their complaint, the plaintiffs alleged the following facts. InJanuary, 1993, the plaintiffs received in their mail at home in Waterbury,Connecticut, a package of postcards soliciting inquiries for variousproducts and services.5 Among the cards was one soliciting inquiriesconcerning vending machines, pay telephones and other businessopportunities. The plaintiffs completed and returned that card. Within afew days, the plaintiffs began receiving postal and telephoniccommunications from representatives of Viking. The various representativesof Viking offered the plaintiffs an opportunity to purchase a "turn-key"business consisting of private pay telephones and promised that Vikingwould provide location and installation assistance. These communicationswere received either at the plaintiffs' home or at Michael Knipple's placeof business in Danbury, Connecticut. In reliance on Viking'srepresentations, the plaintiffs invested in Viking's private pay telephonesby signing, on February 1, 1993, at their home, a document entitled"Purchase Agreement." The agreement was then sent to Viking's office inIllinois where it was countersigned by McClelland. Under the terms of theagreement, the plaintiffs consented to pay Viking $16,350 for the purchaseof private pay telephones. The following year the plaintiffs brought suitalleging that "Viking [had] failed and refused to provide the promisedservices."

"Because a lack of personal jurisdiction may be waived by thedefendant, the rules of practice require the defendant to challenge thatjurisdiction by a motion to dismiss." Standard Tallow Corp. v. Jowdy,

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     190 Conn. 48, 53-54, 459 A.2d 503 (1983). When a defendant files a motionto dismiss challenging the court's jurisdiction, a two part inquiry isrequired. The trial court must first "decide whether the applicable statelong-arm statute authorizes the assertion of jurisdiction over the[defendant]. If the statutory requirements [are] met, its secondobligation [is] then to decide whether the exercise of jurisdiction overthe [defendant] would violate constitutional principles of dueprocess."6 Frazer v. McGowan, 198 Conn. 243, 246, 502 A.2d 905(1986); see Thomason v. Chemical Bank, 234 Conn. 281,286, 661 A.2d 595 (1995); Lombard Bros., Inc. v. General AssetManagement Co., 190 Conn. 245, 250, 460 A.2d 481 (1983). In this case,the trial court went no further than the first inquiry; it found that theplaintiffs had failed to prove that the requirements of Connecticut's longarm statutes — General Statutes § 33-4117 withrespect to foreign

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     corporations and General Statutes § 52-59b8 withrespect to nonresident individuals — had been satisfied.

If a challenge to the court's personal jurisdiction is raised by adefendant, either by a foreign corporation or by a nonresident individual,the plaintiff must bear the burden of proving the court's jurisdiction.9Standard

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     Tallow Corp. v. Jowdy, supra, 190 Conn. 54.Under our current rules of procedure, a motion to dismiss "may perform therole of either a motion to erase or a plea in abatement under our formerpractice." Pellegrino v. O'Neill, 193 Conn. 670, 672 n. 4, 480 A.2d 476,cert. denied, 469 U.S. 875, 105 S.Ct. 236, 83 L.Ed.2d 176 (1984). Amotion to erase admitted "all facts which [were] well pleaded, invoke[d]the existing record and [was required to] be decided upon that alone."Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988); 1 E.Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 103. The plea inabatement was the required pleading when an alleged jurisdictional defectcould not be determined on the record. Carpenter v. Planning & ZoningCommission, 176 Conn. 581, 587-88, 409 A.2d 1029 (1979); 1 E. Stephenson,supra, § 103. Under a plea in abatement, once issues of fact were joined,the trial court was required to conduct an evidentiary hearing to determinethe disputed facts necessary to decide the jurisdictional issue. 1 E.Stephenson, supra, § 108(d).

In view of the dual roles of a motion to dismiss — that is, as amotion to erase and as a plea in abatement — this court haspreviously considered the undisputed factual allegations in the complaintas well as the undisputed factual allegations in the various affidavitswhen adjudicating the motion where no evidentiary hearing has beenheld.10 Barde v. Board of Trustees, supra, 207 Conn. 61-62. Becausean evidentiary hearing was not requested in this case by either party,we will accept, as the trial court should, all undisputed factualallegations for the purpose of determining whether the plaintiffs

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     have sustained their burden of proving that the court had personaljurisdiction over either or both of the defendants under the long armstatutes.

I

JURISDICTION OVER A FOREIGN CORPORATION

The plaintiffs argue that the trial court had several bases for findingthat the long arm statutes were satisfied with respect to Viking.11Because we conclude that the plaintiffs have proven that the court hadjurisdiction over Viking under § 33-411 (c)(4), we do not addressthe other statutory jurisdictional provisions invoked by the plaintiffs.

Pursuant to § 33-411 (c)(4), a foreign corporation is subject to suitin Connecticut if the cause of action in question arises "out of tortiousconduct [committed] in this state, whether arising out of repeated activityor single acts . . . ." The plaintiffs alleged that the tortious conductcommitted by Viking in Connecticut included intentional misrepresentationsand fraudulent nondisclosures.

The uncontroverted allegations in the complaint and the affidavitswith respect to Viking's tortious conduct are as follows: After theplaintiffs indicated an interest in learning about Viking's businessopportunities, they received numerous out-of-state communications fromagents of Viking. According to these allegations, Viking not only offeredto sell private pay telephones to the plaintiffs, but also promised toprovide training, to assist in finding locations for installation, and toinstall the telephones. The promotional material sent by Viking to

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     theplaintiffs, which was attached to their affidavit, supports the plaintiffs'allegations. One promotional item, entitled "Viking Advantages," promisedin regard to training: "Full training and factory and back-up support toinsure your total success at all levels of the industry." In regard tolocations, the same item promised: "High traffic locations, with long termcontracts. All your locations will be with your approval." Additionally,a letter from Jan Kraft, an agent of Viking, states: "You will be hearingfrom our route coordinator to help you with your route development."

In their complaint, the plaintiffs alleged that Viking had failed toprovide the training and location selection services promised and that noneof the telephones had been installed. The plaintiffs also alleged thatthey had relied on Viking's representations about the services that Vikingwould provide and that these representations were false, and were known tohave been false, when made.

In response, Viking, in the affidavit of Harris, merely stated: "As amatter of business practice, we do not provide location or installationservices. However, if requested, we can provide a list of people in theindustry who do provide such services." (Emphasis added.) Accordingly,Viking never denied that its agents had made such fraudulent promises tothe plaintiffs, but merely denied that it was its practice to provide theservices allegedly promised.12

False representations entering Connecticut by wire or mailconstitute tortious conduct in Connecticut under § 33-411 (c)(4).Coan v. Bell Atlantic Systems LeasingInternational, Inc., 813 F. Sup. 929, 944-45 (D. Conn. 1990);David v. Weitzman, 677 F. Sup. 95, 98(D. Conn. 1987); Teleco Oilfield Services, Inc. v.

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     Skandia Ins. Co., 656 F. Sup. 753, 758 (D. Conn. 1987);McFaddin v. National Executive Search, Inc., 354 F. Sup. 1166,1171 (D. Conn. 1973). For example, in Teleco Oilfield Services, Inc. v.Skandia Ins. Co., supra, 756, the plaintiff brought an action allegingbreach of an insurance contract and bad faith tortious acts arising fromthe failure to pay the plaintiff's claim by its insurers, several foreigncorporations. The United States District Court for the District ofConnecticut held, inter alia, that the defendant insurers' tortiousconduct was deemed to have occurred in Connecticut, thereby providingthe court with jurisdiction over the defendants under § 33-411(c)(4), because "the alleged misrepresentations of coverage, both activeand passive, would have been made by way of communications sent to andreceived by [the plaintiff] from the [out-of-state] defendants inConnecticut." Id., 758. Similarly, in the present case, based on theplaintiffs' undisputed allegations of misrepresentation by way oftelephonic and postal communications sent to and received in Connecticut,Viking engaged in tortious conduct in this state, thereby satisfying §33-411 (c)(4). We, therefore, hold that the trial court improperlyconcluded that § 33-411 (c)(4) was not satisfied.

Consequently, the plaintiffs established, pursuant to § 33-411 (c)(4), that Connecticut's long arm statute was satisfied as to Viking. Thecase must, therefore, be remanded to the trial court for furtherproceedings to determine whether Viking had sufficient contacts withConnecticut so as to comport with due process and to resolve the othergrounds for dismissal alleged in the defendants' motion, i.e., forum nonconveniens and insufficient service of process.

II

JURISDICTION OVER A NONRESIDENT INDIVIDUAL

The plaintiffs argue that, pursuant to § 52-59b (a)(3)(B),the trial court had jurisdiction over McClelland

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     because he had committed "a tortious act outside the state causing injuryto person or property within the state . . . ."13 (Emphasis added.)Jurisdiction under subsection (a)(3)(B) has the additional requirementthat the plaintiff prove that the individual defendant "expects or shouldreasonably expect the act to have consequences in the state and derivessubstantial revenue from interstate or international commerce."14(Emphasis added.)

Even if we assume that McClelland is an agent vicariously liable forthe tortious conduct of Viking,15 the complaint and affidavits aredevoid of any allegations from which it could be determined that McClellandderived substantial revenue from interstate or international commerce.Therefore, the plaintiffs have failed to establish that the court hadpersonal jurisdictionover McClelland.

The judgment of dismissal with respect to Viking is reversed and thecase is remanded for further proceedings consistent with this opinion; thejudgment of dismissal with respect to McClelland is affirmed.

In this opinion the other justices concurred.

1. Against Viking, the plaintiffs alleged common law claims of breach ofcontract and fraud, in addition to violations of the Connecticut BusinessOpportunity Investment Act; General Statutes § 36b-60 et seq.; and theConnecticut Unfair Trade Practices Act. General Statutes § 42-110a et seq.The plaintiffs also alleged that McClelland violated both of those acts.

2. Although the record fails to indicate the state of its incorporation,Viking is neither incorporated in nor registered to do business inConnecticut. Rather, it has its principal place of business in Illinois.It is also undisputed that McClelland is a nonresident of Connecticut.

3. Practice Book § 142 provides in pertinent part: "Any defendantwishing to contest the court's jurisdiction, may do so even after havingentered a general appearance, but must do so by filing a motion to dismisswithin thirty days of the filing of an appearance." Practice Book § 143 provides in pertinent part: "The motion to dismissshall be used to assert . . . (2) lack of jurisdiction over the person, (3)improper venue, (4) insufficiency of process, and (5) insufficiency ofservice of process. This motion shall always be filed with a supportingmemorandum of law, and, where appropriate, with supporting affidavits as tofacts not apparent on the record. "If an adverse party objects to this motion he shall, at least fivedays before the motion is to be considered on the short calendar, file andserve in accordance with Sec. 120 a memorandum of law and, whereappropriate, supporting affidavits as to facts not apparent on the record." Practice Book § 144 provides in pertinent part: "Any claim of lack ofjurisdiction over the person or improper venue or insufficiency of processor insufficiency of service of processis waived if not raised by a motion to dismiss . . . ."

4. e note that the defendants failed to file Harris' affidavit withtheir motion to dismiss as provided for in § 143. Rather, they submittedthe affidavit more than one month later, after the plaintiffs' memorandumin opposition was filed.

5. In their affidavit, the defendants denied that they advertised by wayof "card paks." Accordingly, we do not consider the plaintiffs'allegations regarding this matter in determining whether Connecticut's longarm statutes were satisfied.

6. "The federal due process clause permits state to exercise inpersonam jurisdiction over a nonresident corporate [or individual]defendant that has certain minimum contacts with the forum such that themaintenance of the suit does not offend traditional notions of fair playand substantial justice. . . . A state court will have specificjurisdiction over a nonresident defendant whenever the defendant haspurposefully directed [its] activities at residents of the forum . . . andthe litigation [has] result[ed] from alleged injuries that arise out of orrelate to those activities . . . . Alternatively, [e]ven when the cause ofaction does not arise out of or relate to the foreign corporation's [orindividual's] activities in the forum State, due process is not offended bya State's subjecting the corporation [or individual] to its in personamjurisdiction if the defendant has had continuous and systematic generalbusiness contacts with the state." (Citations omitted; internal quotationmarks omitted.) Thomason v. Chemical Bank, 234 Conn. 281, 287-88,661 A.2d 595 (1995).

7. General Statutes § 33-411 provides in pertinent part: "(b) Everyforeign corporation which transacts business in this state in violation ofsection 33-395 or 33-396 shall be subject to suit in this state upon anycause of action arising out of such business. "(c) Every foreign corporation shall be subject to suit in this state,by a resident of this state or by a person having a usual place of businessin this state, whether or not such foreign corporation is transacting orhas transacted business in this state and whether or not it is engagedexclusively in interstate or foreign commerce, on any cause of actionarising as follows: (1) out of any contract made in this state or to beperformed in this state; or (2) out of any business solicited in this stateby mail or otherwise if the corporation has repeatedly so solicitedbusiness, whether the orders or offers relating thereto were acceptedwithin or without the state; or (3) out of the production, manufacture ordistribution of goods by such corporation with the reasonable expectationthat such goods are to be used or consumed in this state and are so used orconsumed, regardless of how or where the goods were produced, manufactured,marketed or sold or whether or not through the medium ofindependent contractors or dealers; or (4) out of tortious conduct in thisstate, whether arising out of repeated activity or single acts, and whetherarising out of misfeasance or nonfeasance. . . ."

8. General Statutes § 52-59b (a) provides: "As to a cause of actionarising from any of the acts enumerated in this section, a court mayexercise personal jurisdiction over any nonresident individual, or foreignpartnership, or his or its executor or administrator, who in person orthrough an agent: (1) Transacts any business within the state; or (2)commits a tortious act within the state, except as to a cause of action fordefamation of character arising from the act; or (3) commits a tortious actoutside the state causing injury to person or property within the state,except as to a cause of action for defamation of character arising from theact, if he (A) regularly does or solicits business, or engages in any otherpersistent course of conduct, or derives substantial revenue from goodsused or consumed or services rendered, in the state, or (B) expects orshould reasonably expect the act to have consequences in the state andderives substantial revenue from interstate or international commerce; or(4) owns, uses or possesses any real property situated within the state."

9. This general rule is different with respect to determining whetherthe court has jurisdiction over a defendant that is served personally orthrough abode service. In those situations, as opposed to situations whereservice is constructive, i.e., service on a foreign corporation ornonresident individual by mail, the defendant bears the burden ofdisproving personal jurisdiction. "`The general rule putting the burden ofproof on the defendant as to jurisdictional issues raised is based on thepresumption of the truth of the matters stated in the officer's return.When jurisdiction is based on personal or abode service, the matters statedin the return, if true, confer jurisdiction. When jurisdiction is based onconstructive service, jurisdiction cannot arise solely from the actsrecited in the [officer's] return. . . .' 1 Stephenson, Conn. Civ. Proc.(2d Ed.) § 96, p. 390." Standard Tallow Corp. v. Jowdy, supra,190 Conn. 53.

10. Where the facts necessary to determine jurisdiction are disputed,"due process requires that a trial-like hearing be held, [at the request ofeither party] in which an opportunity is provided to present evidence andto cross-examine adverse witnesses." Standard Tallow Corp. v. Jowdy,supra, 190 Conn. 56. Furthermore, the trial court must allow a reasonablecontinuance for discovery when it determines that discovery is warranted.Id., 60.

11. The plaintiffs assert that § 33-411 (c)(1), (2) and (4) of thegeneral long arm statute; see footnote 7; and General Statutes §§ 36b-62(c) and 36b-74 (c) of the Connecticut Business Opportunity Investment Act;see footnote 1; are satisfied, each of which independently provides the

12. If this allegation had been disputed, it would have been appropriatefor the plaintiffs to request an evidentiary hearing to resolve thedispute. See footnote 10.

13. Although the plaintiffs alleged that Viking committed a tortious actwithin the state, the plaintiffs rely solely on their assertion thatMcClelland committed a tortious act outside the state for jurisdiction overMcClelland.

14. See footnote 8.

15. The plaintiffs seek to hold McClelland individually liable as anagent of Viking for its alleged tortious violation of the ConnecticutBusiness Opportunity Investment Act. General Statutes § 36b-61 (4)("[s]eller means a person who is engaged in the business of selling oroffering for sale business opportunities or any agent or representative ofsuch person").Page 613

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