Opinion
No. 580975
July 6, 2000
MEMORANDUM OF DECISION
This proceeding is an appeal from the assessment of damage by condemnation that has come to the court on the wrong procedural track, to which it had been directed by the court clerk on instruction from the Civil Court Manager of the Court Operations Division. Instead of being entered on the court records as a separate civil action with payment of the entry fee required by General Statutes Section 52-259, this appeal and application for review of statement of compensation was filed, without payment of the statutory entry fee, as a further pleading in the above-numbered and titled court docket previously created for the deposit with the clerk of the Superior Court of the assessed damages in the amount of $54,500. See City of Bristol v. Sebastiano A. Milano et al., 45 Conn. Sup. 605.
On June 19, 1998, the Commissioner of Transportation filed a notice of condemnation and assessment of damages, pursuant to Sections 13a-73 (b), 13a-73 (e) and 13a-98e of the General Statutes, for the condemnation of premises of Connemara Court, LLC, therein described, consisting of 2.927 acres, more or less, on Nod Road, in the Town of Avon, together with full and perpetual drainage right of way easements over the owner's remaining land, found to be necessary for the layout, alteration, extension, widening, change of grade, drainage and improvement of the highway known as Nod Road. Upon the filing of this notice of condemnation and the accompanying deposit of $54,500, the amount of the assessed damages, with the clerk of the court, that office gave the deposit file the above docket number and title. This was in accordance with the statutory requirements. General Statutes Section 13a-73 (b). In further compliance with the statute, notice of such assessment was given by mail to all persons having an interest of record in such land.
On November 5, 1998, counsel for the owner of the subject property filed an appearance in the docket created by the clerk for the deposit. An appeal from the assessment of damages and benefits under General Statutes Section 13a-76 was thereafter filed on behalf of the owner on December 10, 1998. This was accepted by the clerk without the entry fee of $185 required by General Statutes Section 52-259. Instead of opening a separate docket file and title for this appeal, the procedure formerly required for such appeals under Section 13a-76, the clerk's office, upon the direction of its administrative authorities, processed the appeal for a reassessment of damages as a further pleading in the docket file initially established for the temporary holding of the deposit by the clerk until payment to the rightful beneficiary upon later order of the court in accordance with eminent domain law.
Attached to the pleading was the required order of notice form to be completed by the court for service on behalf of and at the direction of the owner by a proper officer. The notice, as prepared for the owner and issued by the court, required that notice be given to the Commissioner of Transportation by service of the application for reassessment and of the order of notice in the prescribed manner for service of civil process, with a return of service, on or before December 31, 1998. This return of service of the appeal upon the Commissioner of Transportation was never returned or filed in court.
On December 14, 1998, the owner's attorney filed a motion for payment of the deposit held by the clerk. This was denied on January 19, 1999, for want of a certificate of title pertaining to the subject property. A second motion for payment of the deposit with the required certificate of title attached was filed on February 24, 1999. After a hearing, the motion was granted on July 12, 1999, and the deposit was ordered paid to Cormemara Court, LLC.
On motion of the owner, the court on February 4, 2000, appointed the undersigned judge trial referee to hear the appeal for reassessment of damages under the provisions of Section 13 a-76. Thereafter, on March 20, 2000, the Commissioner of Transportation filed a motion requesting the "Court to dismiss the above captioned case" for the reason that he was never served in this matter and the statutory six month statute of limitations had expired. The parties were heard on this motion and briefs were filed.
Disregarding the transposition of the parties in the deposit docket title of this action (see Bristol v. Milano, supra., 45 Conn. Sup. 605, 607-613), the parties have erroneously designated the Commissioner of Transportation plaintiff and Connemara Court, LLC, defendant. This crossover or reversal of their party positions the court will not recognize to avoid judicial confusion. Instead, the owner condemnee will be named appellant, and the Commissioner of Transportation condemnor will be named appellee, to avoid any further confusion of their party status in this proceeding.
The basis of the state's claim for dismissal of the action is that there is no appeal from the assessment of damages pending in this court. The statutory notice under section 13a-76 issued by the court on December 10, 1998, by its terms required service of the application for reassessment and of the order of notice upon the Commissioner of Transportation, with due return of the service of notice to be made to the court on or before December 31, 1998. The return of such service was never filed in court. Therefore, it maintains, the appeal was not brought within the prescribed statutory six-month period after the filing of the assessment by the Commissioner of Transportation on June 15, 1998, and the court is without jurisdiction to hear the owner's appeal from that assessment.
The appellee's legal argument is brief in form and authorities. The case of Karp v. Urban Redevelopment Commission, 162 Conn. 525, 531, is cited to establish that the reason for a short time limitation allowed by law for an appeal from an assessment of damages was to permit the condemning authority to determine its financial responsibilities expeditiously. He relies principally on Celano v. Commissioner of Transportation, Superior Court, Judicial District of New London at New London, Docket No. 515543 (Jan. 23, 1991), affirmed 26 Conn. App. 912, where the court dismissed the appeal from an assessment of damages on the defendant's claim that the court lacked personal jurisdiction because service was made on the Commissioner of Transportation after the expiration of the order of notice and the six-month limitation period.
The defendant in that condemnation action filed an assessment of damages on January 24, 1990. On June 6, 1990, the clerk of the court issued an order of notice commanding any proper officer to give notice of the plaintiff's appeal from the assessment to the defendant on or before June 29, 1990. According to the return of service filed in court, the sheriff received and served the process on August 6, 1990, thirty-eight days late. Relying on that authority, the appellee here concludes: "Certainly if a reassessment appeal should be dismissed because the Commissioner was not served within six months, then it must be dismissed if the Commissioner was never served at all."
The appellant concedes that the appellee was not served with notice of the appeal and that the return of service ordered by the court was never filed. Citing Laurel, Inc. v. Commissioner of Transportation, 173 Conn. 220, the appellant asserts that the statutory time limitation should not be viewed as jurisdictionally related. That authority, however, is inapposite. As the Celano court observed, that case was premised on a unique set of facts.
The appellant also cites the case of Bristol v. Milano, 45 Conn. Sup. 605, as instructive. Referring to that case, the appellant states: "In Bristol, as was the case here, the Clerk's Office mistakenly filed Connemara Court's appeal in the existing condemnation file instead of docketing it as an entirely new matter as would be appropriate. The result of such error is that the "defendant's" appeal is treated as a motion in the deposit file. See id. at 607. The parties are then reversed in their designation as plaintiff and defendant." Reference is also made to Killingly v. Wells, 18 Conn. App. 508, as being similar to the situation at hand. The appellant, property owner, did not file a separate action, but "certainly" its appeal puts all parties on notice of its intention to appeal.
Concluding that the court clerk failed to abide by the statutory mandates of section 13a-76, citing Bristol v. Milano, supra, 45 Conn. Sup. 612, the appellant claims that "the deficiencies of the Clerk's office should not be construed against the Defendant, Connemara Court, LLC." The appellant's final argument is that since the appeal was timely filed on December 10, 1998, within the time limitation, the failure of the proper officer to make service on the Commissioner of Transportation does not constitute a jurisdictional defect.
In rebuttal to the appellant's claims, the appellee states that they miss the fundamental point of the outstanding issue: (1) the failure to comply with the court's order of notice is not a mistake or deficiency in the clerk's office; (2) if, in fact, the appellant would have rights under General Statutes section 52-592, the accidental failure of suit statute, after the appeal is dismissed, those rights should be addressed at that time; they are irrelevant to the issue of dismissal that is now under consideration.
The legal reasoning and authorities advanced by the appellee in his direct and rebuttal arguments and memoranda are supportive of his motion to dismiss the appeal filed by the appellant for a reassessment of damages and benefits awarded by the state in this condemnation proceeding. The issue of jurisdiction will be considered by the court whenever it is raised. Karp v. Urban Redevelopment Commission, 162 Conn. 525, 528; Carten v. Carten, 153 Conn. 603, 610. Once the question of jurisdiction is raised by a party, the issue must be disposed of by the court no matter in what form it is presented. Castro v. Viera, 207 Conn. 420, 429.
Karp v. Urban Redevelopment Commission, supra, 162 Conn. 525, concerned an appeal for reassessment filed beyond the six-month time limitation in General Statutes section 8-132, the law governing appeals from the statement of compensation in acquisition of real property in redevelopment areas of the state. That statute, enacted in 1955, was patterned after the provisions of section 13a-76, prescribing the mode of appealing from the assessment of damages in proceedings for the condemnation of real estate for state highway purposes now before the court. In Karp, decided under the rules of practice that are no longer in effect, the Supreme Court held that the motion to erase was erroneously granted by the trial court, saying, at page 532: "The motion to erase could not take the place of a timely plea in abatement alleging the facts on which the claim of lack of jurisdiction was predicated."
The reasoning expressed in Karp on the issue of jurisdiction of an appeal under section 8-132 from an eminent domain assessment by a redevelopment agency applies to the appeal under section 13a-76 now before the court from an assessment for a state highway condemnation. Where statutes provide an efficacious procedure for assuring just compensation, that procedure will be followed. The statute provides an efficient procedure for vindicating the common-law right to just compensation for a taking of property by eminent domain. The statute alters the process by which a property owner must seek just compensation, but does not create a right to just compensation that would not otherwise be available. The limitation is on the remedy alone. Compliance with the time requirement is only a limitation analogous to the usual statute of limitation. "`This limitation is to be regarded as creating a condition subsequent, by which an existing right is cut off by the nonperformance of the condition, rather than a condition precedent to a continuing right.' Bulkley v. Norwich W. Ry. Co., 81 Conn. 284, 287, 70 A. 1021." Karp v. Urban Redevelopment Commission, supra, 162 Conn. 529-30.
The statutory condition subsequent for an appeal to be taken in a condemnation proceeding under section 13a-76 is tripartite. First, the appellant or property owner must, within six months of the filing, June 15, 1998 here, of the assessment of damages by the Commissioner of Transportation with the clerk of court under section 13a-74 (b), "apply to the superior court" for a reassessment of such damages. This is the statute of limitation referenced by the commissioner in his motion to dismiss. The record discloses that the appellant met this condition by "applying for a reassessment of damages" in its filing of December 10, 1998.
Second, the court must "caus[e] notice of the pendency of such application to be given to said commissioner." This was done by the court here on December 10, 1998, in its order of notice given to the appellant for service upon the appellee in accordance with General Statutes section 52-52 (a). This was addressed as follows: "To Any Proper Officer: . . . it is hereby ordered that you give notice thereof to the Commissioner of Transportation of the State of Connecticut by serving a true and attested copy of the application and of this order on the Commissioner in the matter (sic) prescribed for the service of civil process and make due return to this court on or before Dec. 31, 1998."
Third, after service of the order of notice issued by the court on December 10, 1998, by a proper officer within the three weeks designated and extending sixteen days beyond the statute of of limitation referenced by the appellee, a return of such service or proof of compliance with the order of notice was to be filed with the clerk in accordance with section 52-52 (c), and the clerk "shall note such fact upon the docket, and such proof and order shall be preserved as part of the case file."
The second and third parts of the limitation or condition subsequent for an appeal by the appellant for the reassessment of damages under section 13a-76 were not met or complied with. The appellant acknowledges in argument and its brief that the sheriff failed to serve the duly filed appeal on the Commissioner of Transportation as ordered by the court on December 10, 1998. Consequently, there could be no statutory return of service upon the commissioner filed by the officer. For these reasons the court lacks jurisdiction to hear this appeal.
Similar jurisdictional issues have been raised in other statutory appeals and court proceedings. The ruling in this appeal under section 13a-76 is akin to holdings under the Uniform Administrative Procedure Act, Section 4-183 (b). In Hilicroft Partners et al. v. Commission on Human Rights Opportunities, 205 Conn. 324, the court ruled: "Because it is conceded that Schifini was never served, the dispositive issue is whether she was a party of record upon whom service of the petition appealing from the CHRO was required by 4-183 (b). If the complainant was such a party, the failure to follow the statutory mandate to serve her was a jurisdictional defect warranting dismissal of the appeal. We have held that `[a] statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.' Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979). `The appeal provisions of the statute are jurisdictional in nature, and, if not complied with, render the appeal petition subject to dismissal.' Basilicato v. Department of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1985); Minichino v. Freedom of Information Commission, 6 Conn. App. 148, 149, 503 A.2d 1189 (1986); Newtown v. Department of Public Utility Control, 3 Conn. App. 416, 419, 488 A.2d 1286 (1985)." Hillcroft Partners, supra, 326. Finding that the complainant was a party of record whom the plaintiffs were obliged to serve in bringing their appeal, "[w]e agree with the trial court that the failure to serve her necessitated dismissal of the appeal for lack of jurisdiction." Id., 331.
A comprehensive review of the principles of law determinative of the jurisdictional issue now before the court and in similar jurisdictional contexts is found in General Motors Acceptance Corporation v. Pumphrey et al., 13 Conn. App. 223. There GMAC brought suit on a retail instalment contract when payments by the defendants ceased after a collision involving the financed vehicle. The defendant's motion to implead the collision insurance carrier, Aetna Casualty Surety Company, was granted by the trial court. The trial record indicated that Aetna was served with a copy of the third party complaint, the order granting the motion to implead, and a copy of the original writ of attachment and complaint against the third party plaintiffs. The order granting the motion to implead contained a return date, but Aetna was never served with a third party writ of summons.
GMAC's motion for default against Aetna for failure to appear was entered by the trial court on October 15, 1984. The required notice of its grant was not sent to Aetna. Judgment was rendered by the trial court on December 10, 1985. Again, Aetna did not receive the required notice of judgment. On April 24, 1986, the third party plaintiffs applied for a bank execution against Aetna. Its subsequent grant resulted in satisfaction of the judgment. Aetna filed an appearance and a motion to open the judgment on June 23, 1986, alleging that the judgment of the court was void for lack of in personam jurisdiction because Aetna was never served with a third party writ of summons. The trial court denied the motion to open judgment for lack of reasonable cause for its failure to file the motion within four months following judgment as required by General Statutes section 52-212 (a) and Practice Book section 326. On appeal, the Appellate Court found error and set aside the judgment against Aetna with a remand for further proceedings in accordance with its opinion.
Service of process on a party in accordance with the statutory requirements is a prerequisite to a court's exercise of in personam jurisdiction over that party. Until notice is given the defendant of the action or proceedings against him, and he is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment against him, even though it may have jurisdiction of the subject matter. 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, and is powerless to render a judgment if it lacks jurisdiction of the parties, or of the subject matter. A judgment rendered without jurisdiction may be opened at any time under the court's inherent authority. Id., 227-29.
The appellee's motion to dismiss the appeal is granted.
William C. Bieluch Judge Trial Referee