Enforcement of a Foreign Judgment
Action in the Superior Court in Connecticut Seeking
to Enforce the California Judgment
Default Judgment in California
Personal Jurisdiction
Due Process Clause
Nonsignatory to a Contract Bound
by a Forum Selection Clause
Contained Therein?
Breach of Contract
Full Faith and Credit
Common-Law Enforcement
of a Foreign Judgment
Conflict of Laws
Service of Process (California Law)
This appeal
arises out of a dispute between the plaintiff, Meribear Productions, Inc.,
doing business as Meridith Baer and Associates, and the defendants, Joan E.
Frank and George A. Frank, in connection with a contract for the design,
decoration, and staging for sale of the defendants’ residence at 3 Cooper Lane
in Westport. After the plaintiff staged the defendants’ home by installing
rental furniture, antiques, art, and home décor for the purpose of
enhancing its appearance and, thereby, its prospects for sale, the defendants
defaulted on their contractual payment obligations to the plaintiff. The
plaintiff, a California company, obtained a default judgment against the
defendants in its home state and thereafter filed an action in the Superior
Court in Connecticut seeking to enforce the California judgment or, alternatively,
to recover under the theories of breach of contract or quantum meruit.
The trial
court rendered judgment in favor of the plaintiff against George Frank on the
count seeking to enforce the California judgment and in favor of the plaintiff
against Joan Frank on the breach of contract count. On appeal, the defendants
claim that (1) the California judgment is unenforceable for lack of personal
jurisdiction, (2) the contract is unenforceable under the Home Solicitation
Sales Act (HSSA), General Statutes § 42-134a et seq., and (3) the amount of
damages awarded by the trial court was improper. We affirm the judgment of the
trial court.
The relevant
facts either are undisputed or were found by the trial court following a bench
trial. The plaintiff is a California corporation that provides residential
design and decoration services, including the delivery, staging and leasing of
home furnishings and décor. The defendants are
a married couple who resided in a home owned by Joan Frank at 3 Cooper Lane in
Westport. In an effort to sell their home and make it more attractive to
potential purchasers, Joan Frank, as the homeowner, entered into a ‘‘staging
services and lease agreement’’ (agreement) with the plaintiff on March 13,
2011. Under the terms of the agreement, Joan Frank agreed to pay the plaintiff
a ‘‘ ‘staging fee’ ’’ in the amount of $19,000, which represented a
nonrefundable ‘‘ ‘initial payment’ ’’ due ‘‘prior to the delivery and
installation’’ of the furnishings. After the delivery and installation of the furnishings,
the agreement provided that Joan Frank would make monthly rental payments in
the amount of $1900 beginning on July 23, 2011. The initial term of the
agreement was for four months ‘‘or until the buyer’s contingencies are either
satisfied or waived with respect to the purchase of the property, whichever
comes first.’’ If the property did not sell after four months, then the
agreement would continue on a monthly basis, subject to the right of either
party to terminate the agreement by providing written notice.
Joan Frank was
the sole signatory to the agreement. Although George Frank did not sign the
agreement and was not a party to it, he participated in its negotiation.
Indeed, in negotiating the agreement, the plaintiff dealt exclusively with George
Frank, his office assistant, and the defendants’ realtor. The plaintiff had no
meaningful dealings with Joan Frank other than her execution of the agreement.
In addition to
negotiating the agreement, George Frank signed an addendum to the agreement, addendum
B, which is a credit card authorization expressly made ‘‘a part of the
agreement . . . .’’ Pursuant to the credit card authorization, George Frank
‘‘authorized the plaintiff to charge his Visa credit card a ‘total amount’ of
$19,000.’’ George Frank crossed out language in the addendum providing that he
agreed to personally guarantee ‘‘any obligations that may become due.’’
Although
George Frank was not a party to the agreement, he made substantive
modifications to its terms. Paragraph 19 of the agreement contains a choice of
law provision, which provides that ‘‘this agreement and the rights of the
parties hereunder shall be determined, governed by and construed in accordance
with the internal laws of the state of California without regard to conflicts
of laws principles.’’ Paragraph 19 also contains a forum selection clause,
which provides that ‘‘any dispute under that agreement shall only be litigated
in any court having its situs within the city of Los Angeles, California, and
the parties consent and submit to the jurisdiction of any court located within
such venue.’’ Despite the choice of law provision, George Frank unilaterally
added the following language at the end of paragraph 19: ‘‘Since this is a
contract for an agreement taking place in the state of Connecticut, Connecticut
laws will supersede those of California.’’
After George
Frank made the initial payment of $19,000, the plaintiff delivered and
installed the rental furnishings and décor pursuant to the
terms of the agreement. Thereafter, the defendants defaulted on their rental
obligation. The plaintiff hired a crew of movers to remove the rental
furnishings and décor from the defendants’ residence, but
the defendants denied the movers access to the premises. The defendants demanded
that the plaintiff provide a written release of all claims, but the plaintiff
refused.
The
litigation began in California. On February 15, 2012, the plaintiff filed suit
against the defendants in the Superior Court of California, county of Los Angeles,
claiming, inter alia, breach of contract and conversion. That action resulted
in a default judgment against the defendants in the amount of $259,746.10. When
the default judgment remained unsatisfied, the plaintiff brought an action
against the defendants in the Superior Court for the judicial district of
Fairfield, seeking to enforce the foreign judgment. Alternatively, the
plaintiff sought recovery against the defendants for breach of contract and
quantum meruit under counts two and three of the complaint, respectively. The
defendants raised various special defenses. In particular, the defendants
claimed that (1) the California judgment was unenforceable for lack of personal
jurisdiction, (2) the agreement was unenforceable under the HSSA because the
plaintiff failed to advise the defendants of their cancellation rights, and (3)
the plaintiff failed to mitigate its damages and breached the covenant of good
faith and fair dealing.
On count one
of the plaintiff’s complaint, seeking enforcement of the California judgment,
the trial court found that the California court lacked personal jurisdiction
over Joan Frank due to insufficient service of process but that ‘‘the
substituted service of process on George Frank was valid.’’ ‘‘To the extent
that George Frank claimed that the California court lacked sufficient minimum
contacts over him’’ to satisfy the due process clause of the federal
constitution, the trial court ‘‘disagreed.’’ The trial court reasoned that
‘‘George Frank admitted that he signed a guarantee of the staging agreement
with a company that has a principal place of business in California and that
the agreement provides that the city of Los Angeles is the appropriate forum.
He disputes only the extent of the guarantee. The California court possessed
personal jurisdiction over George Frank, and its judgment is entitled to full
faith and credit as to him.’’ Therefore, the trial court rendered judgment ‘‘in
favor of the plaintiff and against George Frank on the first count of the
complaint for common-law enforcement of a foreign judgment.’’
The trial
court proceeded to address counts two and three of the plaintiff’s complaint
against Joan Frank for breach of contract and quantum meruit, respectively. In
connection with count two, the trial court found that ‘‘the plaintiff’s
evidence relevant to the claimed breach was credible,’’ that ‘‘the furnishings
were delivered to, and installed in, the residence in March, 2011,’’ and that
‘‘Joan Frank failed to make the July rent payment, and the rent payments and
other charges due thereafter.’’ Moreover, the trial court found that, following
Joan Frank’s default on the rental payments, the plaintiff attempted to remove
the inventory from the defendants’ residence, but the defendants wrongfully
‘‘denied the movers access to their home unless the plaintiff provided them
with a full release of all claims,’’ which the plaintiff ‘‘reasonably refused .
. . .’’ The trial court therefore concluded that Joan Frank had breached the
agreement.
The trial
court rejected Joan Frank’s claim that the agreement was unenforceable under
the HSSA (…)
The trial
court also rejected Joan Frank’s claim that the plaintiff had failed to
mitigate its damages, finding that it was Joan Frank who had ‘‘wrongfully
prevented’’ the removal of the home furnishings and décor. Furthermore,
because ‘‘Joan Frank . . . wrongfully withheld payments under the agreement,
and wrongfully refused the plaintiff’s attempts to reclaim the inventory,’’ the
trial court found that she had breached the covenant of good faith and fair
dealing by ‘‘injuring the rights of the plaintiff to receive the benefits of
the staging agreement.’’ The trial court therefore rendered judgment in favor
of the plaintiff and against Joan Frank on the plaintiff’s breach of contract
claim. Having determined that ‘‘the plaintiff proved that Joan Frank breached
the contract,’’ the trial court stated that it ‘‘need not consider the
alternative claim for quantum meruit.’’
Finally, the
trial court addressed the issue of damages. On the first count of the
complaint, enforcement of the California judgment against George Frank, the
trial court awarded the plaintiff the full amount of the California judgment:
$259,746.10. On the second count of the complaint, breach of contract against
Joan Frank, the trial court awarded the plaintiff damages for the loss of the
home furnishings and décor in the amount of
$235,598 and an additional $47,508.45 for ‘‘the rental loss and related late
fees,’’ for a total of $283,106.45.
The defendants
jointly appealed from the trial court’s judgment to the Appellate Court,
claiming that (1) the California judgment was unenforceable against George
Frank for lack of personal jurisdiction, (2) the agreement was unenforceable
because it did not provide the defendants with notice of their cancellation
rights under the HSSA, and (3) the damages award was improper because (a) the
trial court awarded double damages against George Frank and Joan Frank for the
same loss, and (b) the trial court incorrectly included damages for conversion
of the home furnishings in the breach of contract award against Joan Frank. See
Meribear Productions, Inc. v. Frank, 165 Conn. App. 305, 311,
316, 321–22, 140 A.3d 993 (2016), rev’d, 328 Conn. 709, 183 A.3d 1164 (2018).
The Appellate Court affirmed the trial court’s judgment, holding that (1) the
California judgment was enforceable as to George Frank because he consented to
personal jurisdiction in California by signing addendum B, which was
incorporated into the agreement; see id., 315; (2) the agreement was not
subject to the provisions of the HSSA because it fell within the statutory
exemption for transactions pertaining to the sale or rental of real property
under § 42-134a (a) (5); see id., 316, 321; and (3) the measure of damages was
proper because (a) the plaintiff may recover the full amount of damages under
either count one or count two of the complaint but may not recover twice for
the same loss; see id., 322; and (b) the amount of damages on the breach of contract
claim was not clearly erroneous in light of the trial court’s factual findings
‘‘that Joan Frank had breached the staging services agreement by failing to pay
the rent due, by wrongfully using the furniture in the defendants’ personal
residence for approximately three years, and by thwarting the plaintiff’s
efforts to retrieve its inventory, thereby resulting in the total loss of that
inventory to the plaintiff.’’ Id., 323.
This court granted the defendants’ joint petition for
certification to appeal. See Meribear Productions, Inc. v. Frank,
322 Conn. 903, 138 A.3d 288 (2016). During the adjudication of that appeal, a
question arose ‘‘whether George Frank’s appeal had been taken from a final
judgment when the trial court’s ruling had not disposed of all counts against
him,’’ namely, the plaintiff’s alternative theories of recovery in counts two
and three of the complaint, breach of contract and quantum meruit. Meribear
Productions, Inc. v. Frank, 328 Conn. 709, 715, 183 A.3d 1164
(2018). Following oral argument and supplemental briefing from the parties, we
determined that the trial court’s judgment was not final given that counts two
and three ‘‘remained unadjudicated’’ as to George Frank and ‘‘presented the
possibility that he could be found liable for additional damages.’’ Id., 726.
Accordingly, we reversed the judgment of the Appellate Court and remanded to
that court with direction to dismiss the defendants’ joint appeal. See id.
On remand to the trial court, the plaintiff withdrew counts
two and three as to George Frank. The defendants thereafter filed a joint
appeal with the Appellate Court, which we transferred to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-2.
The full faith and credit clause of the United States
constitution provides in relevant part that ‘‘Full Faith and Credit shall be
given in each State to the . . . judicial Proceedings of every other State. . .
.’’ U.S. Const., art. IV, § 1.
Of course,
the due process clause sets the outer limits of a state court’s exercise of
personal jurisdiction.
See, e.g., Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 923, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011) (‘‘the due process
clause of the fourteenth amendment sets the outer boundaries of a state
tribunal’s authority’’ to exercise personal jurisdiction over defendant); WorldWide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S. Ct. 559, 62
L. Ed. 2d 490 (1980) (‘‘a judgment rendered in violation of due process is void
in the rendering state and is not entitled to full faith and credit
elsewhere’’). Consistent with the requirements of the full faith and credit
clause, however, we first must determine whether the exercise of jurisdiction
comports with the applicable law of the foreign state. Under some
circumstances—including the present case, as we shall see—we need go no further
than an examination of state law because, if jurisdiction is established under
state law, then the due process clause is satisfied.
The defendants first
claim that the foreign judgment against George Frank is unenforceable for lack
of personal jurisdiction because George Frank’s sole contact with California
was ‘‘signing a single credit authorization in Connecticut, and every relevant
action the plaintiff took with regard to George Frank was taken in Connecticut.
‘‘The defendants contend that, under these circumstances, George Frank lacked
sufficient minimum contacts with California and that the assertion of personal
jurisdiction over him in that state offended traditional notions of fair play
and substantial justice in violation of the due process clause of the United
States constitution. See, e.g., Burger King Corp. v. Rudzewicz,
471 U.S. 462, 478, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985) (‘‘an individual’s
contract with an out-of-state party alone cannot automatically establish
sufficient minimum contacts in the other party’s home forum’’ (emphasis in
original)). The defendants further argue that George Frank did not consent to
jurisdiction in California because he was not a party to the agreement, and,
therefore, the forum selection clause in the agreement ‘‘cannot form a proper
basis for jurisdiction.’’
The full faith and credit clause of the United States
constitution governs an action to enforce a foreign judgment. ‘‘The full faith and credit clause requires a state court to accord to the judgment of another state the
same credit, validity and effect as the state that rendered the judgment would
give it. . . . This rule includes the proposition that lack of jurisdiction
renders a foreign judgment void. . . . A party can therefore defend against the
enforcement of a foreign judgment on the ground that the court that rendered
the judgment lacked personal jurisdiction, unless the jurisdictional issue was
fully litigated before the rendering court or the defending party waived the
right to litigate the issue.’’ (Citations
omitted.) Packer Plastics, Inc. v. Laundon, 214 Conn. 52, 56, 570
A.2d 687 (1990). The party raising a jurisdictional claim as a defense
against the enforcement of a foreign judgment bears the burden of proving, ‘‘by
a preponderance of the evidence, facts that demonstrate that the foreign court
lacked jurisdiction.’’ Maltas v. Maltas, 298 Conn. 354, 364
n.11, 2 A.3d 902 (2010).
On appeal, we defer to the trial court’s factual findings
but exercise plenary review over the ultimate question of personal jurisdiction. See Ryan v. Cerullo, 282 Conn. 109, 118, 918
A.2d 867 (2007). ‘‘The question of whether another state’s court properly
exercised personal jurisdiction is determined with reference to the law of that
state.’’ Maltas v. Maltas, supra, 298 Conn. 367; see, e.g., Smith
v. Smith, 174 Conn. 434, 438–39, 389 A.2d 756 (1978); J. Corda
Construction, Inc. v. Zaleski Corp., 98 Conn. App. 518, 524, 911
A.2d 309.
In
California, ‘‘a civil court gains jurisdiction over a person through one of
four methods. There is the old-fashioned method—residence or presence within
the state’s territorial boundaries. . . . There is minimum contacts—activities
conducted or effects generated within the state’s boundaries sufficient to
establish a ‘presence’ in the state so that exercising jurisdiction is
consistent with ‘ ‘‘traditional notions of fair play and substantial justice.’
’’ . . . A court also acquires jurisdiction when a person participates in a
lawsuit in the courthouse where it sits, either as the plaintiff initiating the
suit . . . or as the defendant making a general appearance . . . . Finally, a
party can consent to personal jurisdiction, when it would not otherwise be
available.’’
(Citations omitted; footnote omitted.) Global Packaging, Inc. v. Superior
Court, 196 Cal. App. 4th 1623, 1629, 127 Cal. Rptr. 3d 813 (2011).
We need not address the defendants’ minimum contacts
argument because we conclude that George Frank consented to personal jurisdiction in California.
‘‘Due process permits the exercise of personal jurisdiction over a nonresident
defendant . . . when the defendant consents to jurisdiction. . . . A party,
even one who has no minimum contacts with a state, may consent to jurisdiction
in a particular case. . . . Agreeing to resolve a particular dispute in a
specific jurisdiction, for example, is one means of expressing consent to the
personal jurisdiction of courts in the forum state for purposes of that
dispute. . . . Although subject matter jurisdiction cannot be conferred by
consent, personal jurisdiction can be so conferred, and consent may be given by
a contract provision.’’ (Citation omitted; internal quotation marks
omitted.) Rockefeller Technology Investments (Asia) VII v. Changzhou
SinoType Techonology Co., Ltd., 9 Cal. 5th 125, 140, 460 P.3d 764, 260 Cal.
Rptr. 3d 442, cert. denied, U.S. , 141 S. Ct. 374, 208 L. Ed. 2d 98 (2020); see
also Burger King Corp. v. Rudzewicz, supra, 471 U.S. 472 n.14
(‘‘Because the personal jurisdiction requirement is a waivable right, there are
a variety of legal arrangements by which a litigant may give express or implied
consent to the personal jurisdiction of the court. . . . For example,
particularly in the commercial context, parties frequently stipulate in advance
to submit their controversies for resolution within a particular jurisdiction.
. . . When such forum selection provisions have been obtained through freely
negotiated agreements and are not unreasonable and unjust . . . their
enforcement does not offend due process.’’ (Citations omitted; internal
quotation marks omitted.)).
In the present case, the agreement expressly provided in
relevant part that ‘‘any dispute under the agreement shall only be
litigated in any court having its situs within the city of Los Angeles,
California, and the parties consent and submit to the jurisdiction of any
court located within such venue.’’ (Emphasis added.) The defendants do not
dispute that the forum selection clause in the agreement is valid and
enforceable and,
therefore, that its ‘‘enforcement does not offend due process.’’ Burger King
Corp. v. Rudzewicz, supra, 471 U.S. 472 n.14. Instead, they
contend that George Frank is not bound by the forum selection clause because he
did not sign the agreement. We disagree.
Generally,
a nonsignatory to a contract is not bound by a forum selection clause contained
therein.
See, e.g., Berclain America Latina S.A., de C.V. v. Baan Co. N.V.,
74 Cal. App. 4th 401, 404–405, 409, 87 Cal. Rptr. 2d 745 (1999) (holding
that nonsignatory to contract lacked standing to enforce forum selection clause).
An exception to this general rule exists, however, for non-signatories who
are ‘‘so closely involved in the agreement or associated with a party to the
transaction as to be functionally equivalent to that party.’’ Id., 403; see
Net2Phone, Inc. v. Superior Court, 109 Cal. App. 4th 583, 589,
135 Cal. Rptr. 2d 149 (holding that forum selection clause was enforceable
against nonsignatory on ground that it was ‘‘ ‘closely related’ to the
contractual relationship because it stands in the shoes of those whom it
purports to represent’’), review denied, Docket No. S117411 (Cal. August
27, 2003); Bancomer, S. A. v. Superior Court, 44 Cal. App. 4th
1450, 1461, 52 Cal. Rptr. 435 (1996) (to demonstrate that nonsignatory is ‘‘
‘so closely related to the contractual relationship’ that it is entitled to
enforce the forum selection clause, it must show by specific conduct or express
agreement that (1) it agreed to be bound by the terms of the . . . agreement, (2)
the contracting parties intended the nonsignatory to benefit from the . . .
agreement, or (3) there was sufficient evidence of a defined and intertwining
business relationship with a contracting party’’); Lu v. Dryclean-U.S.A.
of California, Inc., 11 Cal. App. 4th 1490, 1494, 14 Cal. Rptr. 2d 906
(1992) (holding that nonsignatories were bound by forum selection clause
because they were ‘‘closely related to the contractual relationship’’ in that
they allegedly ‘‘participated in the fraudulent representations that induced
the plaintiffs to enter into the agreement’’).
Under the
‘‘closely related’’ doctrine, a nonsignatory to a contract may be bound by a
forum selection clause if the nonsignatory was so intimately involved in the
negotiation, formation, execution, or ratification of the contract that it was
reasonably foreseeable that he or she would be bound by the forum selection
clause.
See, e.g., Carlyle Investment Management, LLC v. Moonmouth Co. SA,
779 F.3d 214, 219 (3d Cir. 2015) (‘‘even if the defendants are not parties to
the agreement or third-party beneficiaries of it, they may be bound by the
forum selection clause if they are closely related to the agreement in such a
way that it would be foreseeable that they would be bound’’); Lipcon v.
Underwriters at Lloyd’s, London, 148 F.3d 1285, 1299 (11th Cir. 1998) (nonsignatories
who signed letters of credit to provide collateral for signatories were bound
by forum selection clause because their ‘‘interests . . . in the dispute are
completely derivative of those of the signatories—and thus ‘directly related
to, if not predicated upon’ the interests of the signatories’’), cert.
denied, 525 U.S. 1093, 119 S. Ct. 851, 142 L. Ed. 2d 704 (1999); Hugel v.
Corp. of Lloyd’s, 999 F.2d 206, 209 (7th Cir. 1993) (‘‘in order to bind
a nonparty to a forum selection clause, the party must be ‘closely related’ to
the dispute such that it becomes ‘foreseeable’ that it will be bound’’); Manetti-Farrow,
Inc. v. Gucci America, Inc., 858 F.2d 509, 514 n.5 (9th Cir. 1988)
(nonsignatories were bound by forum selection clause because they were ‘‘so
closely related to the contractual relationship’’). In determining whether a
nonsignatory may be bound by a forum selec- tion clause, ‘‘courts consider the
nonsignatory’s . . . relationship to the signatory and whether the nonsignatory
received a direct benefit from the agreement.’’ Carlyle Investment Management, LLC v. Moonmouth Co. SA,
supra, 219.
Applying these factors, we conclude that George Frank was so
closely related to the agreement that he is bound by the forum selection clause
explicitly providing that the ‘‘the parties consent and submit to the
jurisdiction of any court located within’’ the city of Los Angeles, California.
First, the record reflects that George Frank participated in the negotiation of
the agreement prior to its execution. Indeed, even though Joan Frank was ‘‘the
sole signatory to the agreement,’’ she had no ‘‘meaningful dealings concerning
the matter’’ and ‘‘was not involved in the process other than signing the
agreement.’’ Instead, George Frank negotiated the agreement, ‘‘took charge of
the project and dealt with the plaintiff.’’ George Frank was a party to the
agreement in all but name.
Second, George Frank made substantive changes to the agreement
prior to its execution. Specifically, ‘‘George Frank unilaterally added the
following language to the end of paragraph 19,’’ which is the portion of the
agreement that contains the forum selection clause and the choice of law
provision: ‘‘Since this is a contract for an agreement taking place in the
state of Connecticut, Connecticut laws will supersede those of California.’’
Notably, George Frank made no amendments to the forum selection clause.
Third, in addition to negotiating and amending the agreement,
George Frank executed addendum B, which is a credit card authorization that
expressly was made ‘‘a part of the agreement . . . .’’ Pursuant to addendum B,
George Frank authorized a onetime credit card payment in the amount of $19,000,
which represented the ‘‘initial payment’’ or ‘‘staging fee’’ due under the
agreement. By doing so, George Frank authorized the sole payment made to the
plaintiff and prompted the plaintiff’s full performance of its contractual
obligations under the terms of the agreement.
Lastly, we
consider George Frank’s relationship with the parties and whether he benefited
from the agreement. As we previously explained, George Frank is married to Joan
Frank and resided with her at 3 Cooper Lane—where the home furnishings and décor
were installed and remained for years. See footnote 3 of this opinion. Given
that George Frank plainly enjoyed the use and benefit of the home furnishings
and décor and shared his wife’s desire to enter into the
agreement for the purpose of selling their marital residence, we have no
trouble concluding that he received a direct benefit under the agreement.
For the foregoing reasons, we conclude that George Frank
consented to personal jurisdiction in California. Accordingly, the trial court
properly found that the California judgment is enforceable against George Frank
under the full faith and credit clause.
The concurring and dissenting opinion objects to our
reliance on the closely related doctrine to affirm the trial court’s
enforcement of the foreign judgment against George Frank, arguing that ‘‘the
plaintiff did not advance this theory, either in the trial court or before this
court,’’ and that the plaintiff did not raise it as an alternative ground for
affirmance under Practice Book § 63-4 (a). It is true that the plaintiff did
not frame its jurisdictional argument using the line of cases discussed in this
opinion. In all but name, however, the gravamen of the plaintiff’s argument
throughout this litigation has been that George Frank was so closely related to
the transaction that he should be bound by the forum selection clause in the
agreement signed by his wife, Joan Frank. The record reveals that the plaintiff
consistently has maintained that George Frank consented to personal
jurisdiction in California via the forum selection clause, even though he was
not a signatory to the agreement. In support of this argument, the plaintiff
always has emphasized George Frank’s close involvement in the negotiation and
execution of the agreement, pointing out that he signed addendum B and ‘‘made
specific, handwritten changes to the agreement in certain places, including to
the forum selection clause, which . . . expressly included the selection of
California for litigation arising under the agreement, yet did not alter or
delete his consent to California jurisdiction.’’
The
plaintiff’s failure to cite the applicable, governing case law is not fatal to
its claim because it is well established that ‘‘we may . . . review legal
arguments that differ from those raised’’ by the parties ‘‘if they are subsumed
within or intertwined with arguments related to the legal claim before the
court.’’ (Internal quotation
marks omitted.) Jobe v. Commissioner of Correction, 334 Conn.
636, 644 n.2, 224 A.3d 147 (2020); see State v. Santiago, 318
Conn. 1, 124, 122 A.3d 1 (2015) (‘‘We generally do not consider claims or
issues that the parties themselves have not raised . . . but in cases too
numerous to mention, we have considered arguments or factors pertaining
to those claims or issues that were not expressly identified by the parties.’’
(Citation omitted; emphasis in original.)). This is because, ‘‘when a case is
properly before the court, the court is not limited to the particular legal
theories advanced by the parties, but rather retains the independent power to
identify and apply the proper construction of governing law . . . .’’ (Internal
quotation marks omitted.) Blumberg Associates Worldwide, Inc. v. Brown
& Brown of Connecticut, Inc., 311 Conn. 123, 148, 84 A.3d 840 (2014);
see In re David B., 167 Conn. App. 428, 448 n.10, 142 A.3d 1277 (2016)
(‘‘in resolving a claim raised by the parties, we are not required to constrain
our analysis to the law relied on by the parties’’). Our independent power to
identify and apply the proper construction of the governing law is particularly
important in a case such as the present one, given our constitutional
obligation to afford full faith and credit to the California judgment. See,
e.g., State v. Santiago, supra, 124 (emphasizing importance of
our power to identify and apply proper construction of governing law ‘‘when
plenary consideration is necessary to thoroughly address and accurately decide
constitutional claims and other matters of substantial public importance’’). In
light of the clear applicability of the closely related doctrine to the facts
marshaled by the parties and found by the trial court, we affirm the trial
court’s judgment enforcing the California judgment against George Frank.
Service of Process
The plaintiff ‘‘attempted constructive service on the
defendants’’ at the office of LCP Homes, Inc., ‘‘located at 1175 Post Road East
in Westport.’’ LCP Homes, Inc., ‘‘is a corporation owned by George Frank, and
in which he and Joan Frank are corporate officers.’’ The trial court determined
that service of process on Joan Frank was insufficient under § 415.20 (b) of
the California Code of Civil Procedure because ‘‘Joan Frank is not an owner or
operator of the company, and, moreover, there is no evidence that she was ever
present at the office.’’ See Cal. Civ. Proc. Code § 415.20 (b) (Deering Supp.
2020) (providing that, in lieu of personal service, ‘‘a summons may be served
by leaving a copy of the summons and complaint at the person’s . . . usual
place of business’’). With respect to George Frank, the trial court found that
substituted service of process was sufficient on the ground that ‘‘he is an
owner of LCP Homes Inc. and Andy Frank Builders, which shared the office at
1175 Post Road East,’’ and ‘‘he had a presence at the office at the time of
service . . . .’’
(Connecticut Supreme Court, Jan. 11, 2022, Meribear
Productions, Inc. v. Frank, SC 20473)
