Opinion
No. CV05 4006446S
October 5, 2005
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS (#104)
This is a real estate tax appeal brought by the plaintiff, Arthur L. Fern, II, challenging the valuation placed upon his property located at 179 Duncaster Road in the town of Bloomfield by the town's assessor on the Grand List of October 1, 2004.
The plaintiff commenced this action on June 22, 2005, naming the "Board of Assessment Appeals, Town of Bloomfield" as the defendant. Service was made upon the town clerk of Bloomfield and the chairman of the board of assessment appeals. See marshal's return of service dated June 22, 2005.
On July 29, 2005, the "Board of Assessment Appeals, Town of Bloomfield" filed a motion to dismiss claiming that the court lacked subject matter jurisdiction because the plaintiff failed to name the proper defendant, make proper service or include a citation and proper prayer for relief with the application.
On August 15, 2005, the plaintiff filed a timely "Amendment as of Right" pursuant to Practice Book § 10-59. Simultaneously, the plaintiff filed his objection to the motion to dismiss.
Practice Book § 10-59 provides: "The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day." The court notes that the language of Practice Book § 10-59 is similar to General Statutes § 52-128, which provides: "The plaintiff may amend any defect, mistake or informality in the writ, complaint, declaration or petition, and insert new counts in the complaint or declaration, which might have been originally inserted therein, without costs, within the first thirty days after the return day and at any time afterwards on the payment of costs at the discretion of the court; but, after any such amendment, the defendant shall have a reasonable time to answer the same."
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "[A] motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction. Practice Book § 10-31(a) provides in relevant part: `[A] motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . ." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[O]nce the question of lack of jurisdiction of a court is raised, [however, it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).
The defendant asserts that the court lacked subject matter jurisdiction because the plaintiff failed to:
1) name the town of Bloomfield as the proper defendant pursuant to General Statutes § 12-117a;
2) serve the town clerk as the statutory agent for the town of Bloomfield pursuant to General Statutes § 52-57;
General Statutes § 52-57(b) provides: "Process in civil actions against the following-described classes of defendants shall be served as follows: (1) Against a town, upon its clerk, assistant clerk, manager or one of its selectmen."
3) include a citation pursuant to General Statutes § 12-117a; and
4) place the prayer for relief and ad damnum clause on a separate page of the application pursuant to Practice Book § 10-20 and General Statutes § 52-91.
The plaintiff, on the other hand, argues that the court does have subject matter jurisdiction because he filed a timely "Amendment as of Right" that included a citation and amended application naming the town of Bloomfield as the defendant and including a prayer for relief on a separate page. The plaintiff further argues that the designation of the defendant as the "Board of Assessment Appeals, Town of Bloomfield" is a circumstantial defect which is curable pursuant to General Statutes § 52-123. In support of this, the plaintiff cites to Andover, Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 655 A.2d 759 (1995) (hereinafter also referenced as Andover).
General Statutes § 12-117a provides, in relevant part: "Any person . . . claiming to be aggrieved by the action of . . . the board of assessment appeals . . . in any town may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, with respect to the assessment list for the assessment year . . . to the superior court for the judicial district in which such town . . . is situated, which shall be accompanied by a citation to such town . . . to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action. The authority issuing the citation shall take from the applicant a bond or recognizance . . ."
" [T]he citation is the writ of summons that directs the sheriff or some other proper officer to seek out the defendant agency and to summon it to a particular sitting of a particular court on a specified day. 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 18." Andover, Ltd. Partnership I v. Board of Tax Review, supra, 232 Conn. 394 n. 2. (Emphasis added; internal quotation marks omitted.) "[A] writ of summons is a statutory prerequisite to the commencement of a civil action . . . [I]t is an essential element to the validity of the jurisdiction of the court . . . [T]he writ of summons need not be technically perfect . . . and need not conform exactly to the form set out in the Practice Book . . ." (Internal quotation marks omitted.) Feldmann v. Sebastian, 261 Conn. 721, 729, 805 A.2d 713 (2002).
"General Statutes § 52-123 provides that `[n]o writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.' The purpose of § 52-123 is to afford relief from defects found in the text of the writ itself. It is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects . . . Indeed, § 52-123 . . . protects against just such consequences, by providing that no proceeding shall be abated for circumstantial errors so long as there is sufficient notice to the parties." (Citations omitted; internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 557, 848 A.2d 352 (2004).
"Section 52-123 is a remedial statute and therefore it must be liberally construed in favor of those whom the legislature intended to benefit . . . The statute applies broadly to any writ issued in a civil action, and a citation, by definition, is a writ. Therefore, in [a] civil action, the plaintiff may invoke § 52-123 to amend the citation . . . if its error may be construed as circumstantial." (Citations omitted; emphasis added; internal quotation marks omitted.) Andover, Ltd. Partnership I v. Board of Tax Review, supra, 232 Conn. 396. "[T]he effect given to such a misdescription usually depends upon the question whether it is interpreted as merely a misnomer or defect in description, or whether it is deemed a substitution or entire change of party; in the former case an amendment will be allowed, in the latter it will not be allowed." (Internal quotation marks omitted.) Id., 397. In order to employ § 52-123 to save the action, the court first determines "whether the plaintiff had intended to sue the proper party or whether it had erroneously misdirected its action." Id. "Whether the plaintiff has misconstrued the identity of his or her intended defendant or merely the intended defendant's legal name or nature is a question that may be answered only after all the circumstances have been examined." Lussier v. Dept. Of Transportation, 228 Conn. 343, 351, 636 A.2d 808 (1994).
The Andover court then used a three-part test to analyze "whether the error was a misnomer and therefore a circumstantial defect under § 52-123:
(1) whether the proper defendant had actual notice of the institution of the action;
(2) whether the proper defendant knew or should have known that it was the intended defendant in the action; and
(3) whether the proper defendant was in any way misled to its prejudice."
Andover, Ltd. Partnership I v. Board of Tax Review, supra, 232 Conn. 397.
The issue in Andover, whether "the plaintiff's designation of the board of tax review of the town of West Hartford instead of the town of West Hartford as the defendant deprived the trial court of subject matter jurisdiction[,]" is analogous to the present case. Id., 393. In that case, the plaintiff served the town clerk and subsequently filed an amendment. The trial court in Andover ruled that the jurisdictional defect could not be cured and granted the defendant's motion to dismiss. The Supreme Court reversed, concluding that "the naming of the board instead of the town was a circumstantial error, mistake or defect under § 52-123." Id., 401.
The defendant relies upon Southern New England Telephone Co. v. Board of Tax Review, 31 Conn.App. 155, 162, 623 A.2d 1027 (1993) (hereinafter SNET), a decision of the Appellate Court predating the Supreme Court's decision in Andover, supra, and not discussed therein. In SNET, the court held that a jurisdictional defect existed because the plaintiff named Bloomfield's board of tax review as defendant and only served the chairperson of the board. SNET, however, is distinguishable from the facts at hand. In the present case, as in Andover, the plaintiff served the town's statutory agent, the town clerk. Apparently, the court in Andover saw no distinction in the town clerk accepting service on behalf of the board.
Because the plaintiff listed "Town of Bloomfield, Board of Assessment Appeals" in the caption of the original application, it is clear that the plaintiff intended to appeal the decision of the town of Bloomfield's board of assessment appeals and does not now seek a change of party. While the plaintiff originally served the writ of summons JD-CV-1 form, the information on the form provided the marshal the same direction to summon the defendant that a citation format would provide. In addition, the information on the form provided the defendant with necessary information: the court location, the return date, instruction on filing an appearance and proof of recognizance. As a result, proper service was made on the town clerk pursuant to § 52-57(b). To clarify, the plaintiff also filed a timely amendment to the application and included a citation.
Furthermore, the designation of the defendant in the plaintiff's original filing is a misnomer as indicated by the following circumstances. First, the town of Bloomfield had actual notice of the action because the plaintiff served the town clerk who is the statutory agent for service of process. Moreover, the town of Bloomfield knew or should have known that it was the intended defendant because the plaintiff alleges in his application that the town's assessor made an excessive assessment to property located in the town of Bloomfield. Finally, the defendant has failed to demonstrate that the town of Bloomfield was prejudiced by the designation of the defendant as "Board of Assessment Appeals, Town of Bloomfield" on the original writ of summons.
Accordingly, because the court finds that the misnomer of naming the "Board of Assessment Appeals, Town of Bloomfield" instead of the town of Bloomfield in the original filing is a circumstantial error that is saved by the application of § 52-123; that proper service of process was made upon the town clerk as statutory agent for the town and that the plaintiff's timely amendment to his application pursuant to Practice Book § 10-59 and General Statutes § 52-128 cured defects therein, the motion to dismiss is denied.
Arnold W. Aronson
Judge Trial Referee