Opinion
No. FST CV 09 4016758 S
March 18, 2010
MEMORANDUM OF DECISION MOTION TO DISMISS #101
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff, Lourdes Elias, filed a complaint on July 22, 2009 with a return date of July 28, 2009 naming the defendant, City of Stamford (City). The plaintiff as the owner of property at 177 Ocean Drive West appeals the assessment of the property based upon the October 1, 2007 Grand List of the City of Stamford. The City contends that the plaintiff failed to serve the town clerk with any suit papers and the summons provided to the court was not signed. Additionally, the defendant contends that the court lacks subject matter jurisdiction because the plaintiff failed to file an appeal with the Board of Assessment Appeals related to the Grand List of October 1, 2007 which is the subject of the instant action to this court. The defendant has submitted a memorandum of law in support of its Motion to Dismiss with accompanying affidavits in support of the motion. The plaintiff submitted an opposition dated October 23, 2009 to the Motion to Dismiss. The defendant filed a reply to the opposition dated October 30, 2009. This matter was scheduled for the short calendar on November 30, 2009, at which time the parties argued the motion.
The plaintiff owns property which was assessed on the City of Stamford Grand List in the year 2007 for $1,511,970. The plaintiff alleges that the assessed value is contrary to the values assessed in an earlier appeal in May 2007. The plaintiff contends that the agreed upon assessment after an appeal in May 2007 should have been applied to the October 2007 Grand List. However, the plaintiff does not provide any allegation of an appeal to the Board of Assessment Appeals for the October 2007 assessment. The plaintiff does allege that there was a 2009 Appeal of the assessment.
The Motion to Dismiss was filed within the thirty-day time limit of the Practice Book § 10-30 because the appearance for the defendant was filed on September 15, 2009 followed by this motion dated September 16, 2009.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court . . ." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001). "Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss . . . If a defendant challenges the court's personal jurisdiction, the plaintiff bears the burden of proving the court's jurisdiction . . . Finally, a motion to dismiss admits all facts well pleaded and invokes supporting affidavits that contain undisputed facts." (Citations omitted; internal quotation marks omitted.) Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825-26, 917 A.2d 959 (2007). "Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). "One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003).
A Motion to Dismiss is the proper procedure to contest jurisdiction. Practice Book § 10-30. To obtain jurisdiction over a municipality in Connecticut, service of process must be made by delivery of the complaint to the "clerk, assistant clerk, manager or one of its selectman." General Statutes § 52-57(b)(1). The plaintiff in her response does not claim that service was made upon any of the authorities for service.
The court reviewed the documents returned to the court and noted that there was no return of service or any notation that would support a finding that the plaintiff provided any service of process to the defendant. The defendant has submitted, as an exhibit, the affidavit of the Town and City Clerk for the City of Stamford. This affidavit supports the position of the City that there were no legal papers filed with the City in reference to the present appeal. The clerk specifically noted a search of a time period of May 22, 2009 and June 22, 2009 as consistent with time of filing in the court of the present action. The plaintiff does not provide any documents in opposition to the motion that would contradict this affidavit. A review of the court file also indicates that there is an unsigned summons and no return of service to the court. Instead, the plaintiff argues that the court should allow an amended service of the complaint. The plaintiff has provided a number of cases that she alleges support the position that this court should permit the plaintiff to serve the defendant. However, each of the cases cited by the plaintiff involve technical defects that can be corrected, unlike the instant defect of lack of personal jurisdiction because of absolutely no service. A review of the legal authority provided by the plaintiff does not support the plaintiff's position that she can amend by now serving the complaint. The cases of Concept Association v. Guilford Tax Review Board, 229 Conn. 618, 642 A.2d 1186 (1994), Ervin v. Avallone, Superior Court, judicial district of New Britain, Docket No. CV 06022058 (May 11, 2006, Bentivegna, J.) and DaDonna v. Kaufman, Superior Court, judicial district of New Haven at New Haven, NNH CV 044002533 (December 21, 2005, Jenkins-Pittman, J.) are factually distinct from the instant action. In each of these matters the plaintiff did serve the defendant in some respect, but the service in those matters had a technical defect. In Concept Assoc. and Ervin, the service was defective because the return date was not in accordance with the practice book. In those cases, the court determined that that defect could be corrected by simply providing a new return date. In DaDonna, the defendant was served with a motion for a prejudgment remedy and a hearing was conducted but the service by the sheriff after the prejudgment hearing was made to an address that was no longer correct. In each of these situations § 52-57(a) and the courts' interpretation of the allowance of an amendment was applicable. That is not the situation for the present case where the facts demonstrate that there is nothing to amend because technically there is no legal action without including a return of service. The Superior Court case of DaDonna, supra, cited by the plaintiff, clearly states that lack of service of process cannot be corrected. The court stated: "The rules of practice regarding appearance, however they are construed, do not override the requirements of the statutes for serving process upon a defendant, General Statutes § 52-45, and are to be served by leaving a copy of the process with the defendant or at his usual place of abode. General Statutes § 52-57. There does not appear to be any exception to the statute to this mandatory statutory procedure for an in-state defendant . . . whose whereabouts are ascertainable." DaDonna, supra. Therefore, the motion to dismiss for lack of personal jurisdiction is granted.
Although the decision of the court as to the lack of personal jurisdiction is dispositive of the action, the defendant has also argued that the action should be dismissed for lack of subject jurisdiction because the plaintiff failed to file an appeal to the Board of Assessment Appeals during the time permitted pursuant to § 12-117. The complaint does not allege nor does the plaintiff contradict this claim by the defendant. Once again, the only defense of the plaintiff is a statement that they can amend the complaint. In this regard, the time for the appeal of the decision of assessment is limited by statute. General Statute § 12-112 states: "No appeal from the doings of the assessors in any town shall be heard or entertained by the board of assessment appeals unless referred to it at one of its meetings during the month of September in the case of an appeal related to motor vehicles assessment or unless written appeal is made on or before February twentieth in accordance with section 12-111." General Statutes § 12-112 permits an extension of the date but it is limited. It states: "If an extension is granted to any assessor or board of assessors pursuant to section 12-117, the date by which a taxpayer shall be required to submit a written request for appeal to the board of assessment appeals shall be extended to March twentieth . . ." The plaintiff's complaint fails to include any facts to support an appeal to the Board of Assessment Appeals. The affidavit of Sue Greene, the Account Clerk, from the office of assessment and tax collection indicates that the plaintiff has not filed an appeal of the 2007 Grand List. Pursuant to these statutes, the plaintiff has failed to timely file an appeal. This cannot be amended or corrected. Therefore, the court finds that the motion to dismiss for lack of subject matter should be granted.
CONCLUSION
Based upon the above, the plaintiff has failed to serve the defendant and failed to file a timely appeal with the Board of Assessment Appeals and thus the motion to dismiss is granted.