Summary
granting motion to dismiss because defendant was not served within the time to appeal and § 52-593a did not apply because the appeal was not delivered to the marshal within the time to appeal
Summary of this case from Boahen v. TrifilettiOpinion
No. CV09-4019479S
July 21, 2009
MEMORANDUM OF DECISION
This matter is before the court on the defendant's motion to dismiss. The plaintiffs, Raymond and June Antonacci, filed this action with the court May 6, 2009 against the defendant, the Watertown Board of Assessment Appeals. The plaintiffs are appealing the decision by the Watertown Board of Assessment Appeals not to hear their appeal as to the value of their property. Plaintiff's Exhibit A. On May 13, 2009 the defendant filed an appearance and the motion to dismiss (No. 102). The defendant then withdrew this motion (No. 102) and filed a new motion to dismiss and memorandum of law (No. 103) on June 1, 2009. The plaintiffs filed an objection to the motion to dismiss June 26, 2009. Oral argument was held during short calendar, June 29, 2009.
The defendants argue that the motion to dismiss should be granted because of the plaintiffs' failure to file a timely appeal to this court from the Board of Assessment Appeals decision within the statutorily prescribed time period deprives the court of subject matter jurisdiction. The plaintiffs admit that they did not file the appeal within the two-month time period, but assert that General Statutes § 52-593a allows for commencement of the appeal beyond the prescribed time period if the appeal is given to a marshal for service within the time period, and the appeal is served by the marshal within thirty days of receiving the appeal.
The plaintiffs allege in their appeal that the defendant's decision date, and thus the operative date from which to appeal, was February 23, 2009. The process was not served on the defendant until April 29, 2009. In their motion, they argue the following. Marshal Vincent Messina received the appeal April 23, 2009. He is not authorized to serve process in Watertown, so he forwarded the appeal to Marshal Arthur Quinn, who is authorized to serve process in Watertown. Marshal Quinn states in his affidavit of service that he did not receive the appeal until April 29, 2009, and he served the process the same day.
The defendant, in its motion to dismiss, argues that the plaintiff failed to serve process within two months, the prescribed time period from which to appeal an assessment under General Statutes § 12-117a.
"The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "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." (Emphasis in original; 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); Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 234-35, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007); Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
The plaintiffs rely on General Statutes § 52-593a(a) as a saving statute for their failure of the complaint to be served by April 23. It provides: "Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery." (Emphasis added.)
It is undisputed that the defendant was not served within the two-month time period. Further, it is undisputed that the appeal was not delivered to Marshal Quinn within the time period allowed to appeal a property assessment. General Statutes § 12-117a. Marshal Quinn was the only state marshal who received the complaint that was "authorized to serve the process" as required by § 52-593a(a).
Viewing the facts alleged and argued in the light most favorable to the plaintiff, the appeal was not delivered to a state marshal authorized to serve the process within the applicable appeal time period of two months, in other words, by April 23, 2009.
The plaintiffs' objection to the defendant's motion to dismiss is overruled. The defendant's motion to dismiss the appeal is granted.