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*********************************************** 
ERIC STEVENS v. EDWARD KHALILY ET AL.

(AC 41801)

DiPentima, C. J., and Alvord and Flynn, Js.

Syllabus

The plaintiff sought to recover damages for, inter alia, intentional infliction

of emotional distress from the defendants E and T, who filed a motion

to dismiss for lack of personal jurisdiction due to improper service of

process as a result of the plaintiff’s failure to serve them at their last

known addresses, and neither of whom was a resident of this state. The

trial court granted the motion to dismiss and rendered judgment in

part thereon, concluding that where, as here, there was a challenge to

personal jurisdiction of nonresident individuals, it was the plaintiff’s

burden to produce evidence adequate to establish such jurisdiction, and

that the plaintiff had failed to use diligent and persistent efforts to

properly serve E and T at their last known addresses. On the plaintiff’s

appeal to this court, held that the trial court properly granted the motion

to dismiss filed by E and T: because there was a dispute as to the

location of the last known addresses of E and T, once their affidavits

raised a factual question challenging the court’s jurisdiction for insufficient service of process, the burden shifted to the plaintiff to prove the

court’s jurisdiction over the nonresident defendants, the plaintiff did

not cite to any counter authority to disclaim his burden to prove jurisdiction, nor did he provide evidence of his diligent and persistent efforts

to locate the last known addresses of E and T within a reasonable time

of his attempt to serve process on them, as mere notice of the action

is not sufficient to confer personal jurisdiction over a party who has

not been properly served, and the plaintiff failed to account for his

efforts to remain current on the whereabouts of E and T before

attempting service of process to commence this action; accordingly,

because the plaintiff failed to sustain his burden that he properly served

E and T at their respective last known addresses and that he made a

reasonably diligent search to find out their last known addresses, within

a reasonable time, before attempting service of process, the court lacked

personal jurisdiction over E and T.

Argued September 24—officially released December 3, 2019

Procedural History

Action to recover damages for, inter alia, intentional

infliction of emotional distress, and for other relief,

brought to the Superior Court in the judicial district

of Hartford, where the court, Shapiro, J., granted the

motion to dismiss for lack of personal jurisdiction filed

by the named defendant et al. and rendered judgment

in part thereon, from which the plaintiff appealed to

this court. Affirmed.

Norman A. Pattis, for the appellant (plaintiff).

Sarah F. D’Addabbo, with whom was Matthew G.

Conway, for the appellees (defendants).
Opinion

PER CURIAM. The plaintiff, Eric Stevens, appeals

from the judgment of the trial court granting the motion

to dismiss filed by the defendants Tiffany Khalily and

Edward Khalily,1 which was based on lack of personal

jurisdiction due to improper service of process in that

the plaintiff did not serve the defendants at their last

known addresses. Specifically, the plaintiff argues that

the trial court improperly relied on ‘‘conclusory and

self-serving affidavits of the defendants which were

insufficient to rebut the presumption of proper service.’’

We disagree and affirm the judgment of the trial court.

For the first time on appeal, the plaintiff claims that

in assessing his due diligence in determining the defendants’ last known addresses: (1) the court should have

conducted an evidentiary hearing, despite the court’s

finding that he had never requested one; (2) the court

should have considered that the plaintiff is a victim of

a crime; and (3) the defendants have ‘‘fled to parts

unknown.’’ The plaintiff did not raise these issues

before the trial court and we, therefore, decline to

review them for the first time on appeal. See Histen v.

Histen, 98 Conn. App. 729, 737, 911 A.2d 348 (2006).

The following facts are relevant to this appeal. The

plaintiff commenced this matter on October 10, 2017.

On December 20, 2017, the defendants filed a motion

to dismiss the complaint for lack of personal jurisdiction due to insufficient service of process. Neither

defendant in this case is a resident of Connecticut.

The court granted the defendants’ motion to dismiss,

concluding that when there is a challenge to the personal jurisdiction of nonresident individuals, ‘‘ ‘it [is]

the plaintiff’s burden to produce evidence adequate to

establish such jurisdiction,’ ’’ citing Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515–16, 923 A.2d

638 (2007). The court held that the plaintiff had failed

to meet the statutory requirements of using ‘‘ ‘diligent

and persistent efforts’ ’’; Matthews v. SBA, Inc., 149

Conn. App. 513, 533, 89 A.3d 938, cert. denied, 312 Conn.

917, 94 A.3d 642 (2014); to properly serve the defendants

at their last known addresses. See General Statutes

§ 52-59b (c). This appeal followed.

The plaintiff claims that the trial court improperly

granted the defendants’ motion to dismiss for lack of

personal jurisdiction based solely on the affidavits of

the defendants, asserting that the affidavits were insufficient to rebut the presumption of proper service. The

defendants counter that the court properly found from

the affidavits that the plaintiff failed to follow the

requirements of § 52-59b.

We first set forth the appropriate standard of review.

‘‘The standard of review for a court’s decision on a

motion to dismiss is well settled. 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.’’ (Internal quotation marks omitted.) Cogswell v. American

Transit Ins. Co., supra, 282 Conn. 516.

Although it is generally a defendant’s burden to disprove personal jurisdiction, our Supreme Court has

explained that this burden can shift in two ways. Id.,

515. In particular, the court noted: ‘‘When a motion to

dismiss for lack of personal jurisdiction raises a factual

question which is not determinable from the face of

the record, the burden of proof is on the plaintiff to

present evidence which will establish jurisdiction. . . .

If the defendant challenging the court’s personal jurisdiction is a . . . nonresident individual, it is the plaintiff’s burden to prove the court’s jurisdiction.’’ (Citation

omitted; internal quotation marks omitted.) Id.

At issue in this appeal is the requirement, pursuant

to Connecticut’s long arm statute, § 52-59b,2

that the

plaintiff serve the nonresident defendants at their ‘‘lastknown address[es].’’ General Statutes § 52-59b (c). With

respect to this requirement, our Supreme Court has

stated that ‘‘last-known address does not mean the last

address known to the plaintiff but does mean the last

address of the defendant so far as it is known, that is,

by those who under the ordinary circumstances of life

would know it. Unless the defendant has departed for

parts unknown, it means his actual address; if he has

disappeared it means his last address so far as it is

reasonably possible to ascertain it. This address the

plaintiff must learn at his peril and only if the copy is

mailed to it is there a compliance with the statute. . . .

Interpreted in the sense which the legislature intended,

our statute, if complied with, will certainly bring about

a reasonable probability of actual notice of the pendency of the action to the defendant.’’ (Internal quotation marks omitted.) Cadlerock Joint Venture II, L.P.

v. Milazzo, 287 Conn. 379, 393, 949 A.2d 450 (2008).

This court has noted that ‘‘[a] plaintiff must use diligent and persistent efforts . . . to determine the actual

address of the defendant and unless a defendant has

departed for parts unknown, the plaintiff must learn

the defendant’s actual address at his peril.’’ (Citation

omitted; internal quotation marks omitted.) Matthews

v. SBA, Inc., supra, 149 Conn. App. 533.

In support of his motion to dismiss the defendant

Edward Khalily swore in his affidavit that he had left

New York in 2014 and changed his address from that

state, and that he was not registered to vote in that

state or licensed to drive in New York.

In support of her motion to dismiss, the defendant

Tiffany Khalily swore in her affidavit that she moved

from 4 Portico Court, New York, New York, in November, 2016, and has lived at her present address since
January, 2017, where she received forwarded mail.

As previously noted, it is generally the defendant’s

burden to disprove jurisdiction. However, our Supreme

Court held in Standard Tallow Corp. v. Jowdy, 190

Conn. 48, 53–54, 459 A.2d 503 (1983), that ‘‘[t]he general

rule putting the burden 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. . . . There should be no presumption of

the truth of the plaintiff’s allegation of the additional

facts necessary to confer jurisdiction. . . . Placing the

burden on the plaintiff to prove contested factual issues

pertaining to jurisdiction is in accord with rulings in

other states which have addressed the same question.’’

(Citation omitted; internal quotation marks omitted.)

In the present case, because there is a dispute as to

the location of the defendants’ last known addresses,

once the defendants’ affidavits raised a factual question

challenging the court’s jurisdiction for insufficient service of process, the burden shifted to the plaintiff to

prove the court’s jurisdiction. Furthermore, because

the defendants are nonresident individuals and they

challenge personal jurisdiction, the burden lies with the

plaintiff to prove the court’s jurisdiction. See Cogswell

v. American Transit Ins. Co., supra, 282 Conn. 515. In

his counter affidavit the plaintiff swore, inter alia, that

he had relied on information from ‘‘common people

[the parties] know,’’ including Jessie Popowich, to help

him locate where his daughter was residing. Popowich

told him in October, 2016, that his daughter resided

with the defendant Tiffany Khalily at 4 Portico Court,

Great Neck, New York. Furthermore, he has had no

contact with the defendant Edward Khalily since 2012,

but was told in the fall of that year that he resided at

845 United Nations Plaza, Unit 77C, New York, New

York. The plaintiff does not cite to any counter authority

to disclaim his burden to prove jurisdiction nor does

he provide evidence of his ‘‘diligent and persistent

efforts’’ to locate the defendants’ last known addresses

within a reasonable time of his attempt to serve process

on the defendants. He simply asserts that because the

defendants received actual notice of the summons and

complaint, he has met the requirements of § 52-59b.

However, this court held in Matthews v. SBA, Inc.,

supra, 149 Conn. App. 539, that a defendant’s ‘‘[m]ere

notice of an action is not sufficient to confer personal

jurisdiction’’ over a party who has not been properly

served. (Internal quotation marks omitted.)

In its memorandum of decision, the trial court stated

that ‘‘[r]egardless of [the] steps that the plaintiff took

to find the defendants’ addresses, even if the court were

to find that the plaintiff’s efforts in 2012 and 2016 were

reasonably diligent, the plaintiff has failed to account

for his efforts to remain current on their whereabouts
before attempting service of process in October, 2017,

to commence this present action. Here, the plaintiff

relied on information that was approximately a year

old for [Tiffany] Khalily and five years old for [Edward]

Khalily. Thus, it appears that the plaintiff relied on old

information without attempting to verify that the

addresses he had were still current. Such reliance indicates that the plaintiff was not reasonably diligent in

attempting to determine the last known addresses of

the defendants. . . . The plaintiff, therefore, has failed

to meet his burden of proving that he used reasonably

diligent efforts to find the defendants’ last known

address[es] and that the court can exercise personal

jurisdiction over them.’’

The record and law support the trial court’s judgment

that it lacked personal jurisdiction over these nonresident defendants. The plaintiff has failed to sustain his

burden that he properly served the defendants at their

respective last known addresses and that he made a

reasonably diligent search to find out their last known

addresses, within a reasonable time, before attempting

service of process. We, therefore, conclude that the

trial court properly granted the defendants’ motion to

dismiss.

The judgment is affirmed.

1 Although there were other defendants named at trial, only Tiffany Khalily

and Edward Khalily filed the motion to dismiss. We, therefore, refer to them

as the defendants in this opinion.

2 General Statutes § 52-59b (a) provides in relevant part that ‘‘a court may

exercise personal jurisdiction over any nonresident individual . . . who in

person or through an agent: (1) [t]ransacts any business within the state;

(2) commits a tortious act within the state. . .; (3) commits a tortious act

outside the state causing injury to person or property within the state. . . .;

(4) owns, uses or possesses any real property situated within the state; or

(5) uses a computer, as defined in subdivision (1) of subsection (a) of section

53-451, or a computer network, as defined in subdivision (3) of subsection

(a) of said section, located within the state.’’

Subsection (c) of § 52-59b explains the proper service of process on

nonresident individuals, providing, in relevant part: ‘‘Any nonresident individual . . . 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 . . . .

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.’’