No. CV 07 4020726 S
September 12, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS (MOTION 106)
This is an appeal from a decision of the Bridgeport Planning and Zoning Commission denying an application made by the plaintiff.
The plaintiff commenced this appeal by citation on April 19, 2007. On June 12, 2007 the plaintiff filed a Motion of Filing of Amended Citation and Appeal (motion #102).
Both the original and amended appeals do not have a separate page for the prayer for relief.
On June 26, 2007 the defendant, Bridgeport Jai Alai Associates, LLP (hereinafter referred to as Jai Alai) filed a Motion for Extension of Time (motion #105) (in which to file a pleading in response to the plaintiff's amended complaint). This motion was granted.
On July 11, 2007 the defendant, Jai Alai, filed a Motion to Dismiss (motion #106) claiming that the plaintiff did not comply with Practice Book Section 10-20 and Connecticut General Statutes Section 52-91 by not having a separate page for the prayer for relief which was fatal and deprived the court of jurisdiction over this appeal.
"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).
In Sedlak v. Lotto, No 328128 (Apr. 6, 1993, Zoarski, J.) Connecticut Superior Court, Judicial District of New Haven, 1993 Ct.Sup. 3313 the court was confronted with a fact pattern similar to those in the instant case. In their motion the defendant, Lotto, moved the court to dismiss the entire complaint due to the fact that the plaintiffs violated Practice Book 131 and General Statutes 52-91 in not placing the demand for relief on a separate page of the complaint. In opposition plaintiffs argue that a demand is included and that the failure to place it on a separate page is not a jurisdictional defect.
Sedlak, Id., relied on the ruling in Oakridge Builders, Inc. v. Mark F. Reynolds, 3 CSCR 924 (November 3, 1988, Pickett, J.) in which the plaintiffs moved to strike the prayer for relief in the defendant's counterclaim since it was not placed on a separate page in accordance with Practice Book 131. The court in Oakridge, Id. held that "striking of the prayer for relief would amount to form over substance, since the repeal of Practice Book 310, which provided that pleadings be submitted to the jury. The court therefore, denied defendants' motion to strike the prayer for relief.
Therefore, in Sedlak, Id., the motion to dismiss was denied for the same reasons set forth by Judge Pickett in the Oakridge case. See also Rogerson v. LaBelle, 7 CSCR 557, No 057730 (Apr. 23, 1992, Dranginis, J.) [ 6 Conn. L. Rptr. 358] Connecticut Superior Court, Judicial District of Litchfield.
The plaintiff herein also argues that Connecticut General Statute 52-123 provides that: "No 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 plaintiff further argues that Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 414 (2005) states that: "Our Supreme Court has explained that [General Statutes] section 52-123 replaces the common law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer . . . in an original writ, summons or complaint . . . When a misnomer does not result in prejudice to a party, the defect in the writ is circumstantial error."
The prayer for relief was in the original and amended appeal. There is no prejudice or surprise to the defendant, therefore for all the above reasons, the Motion to Dismiss is denied, the Objection sustained.