Opinion
No. CV04 4000999S
April 26, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS
This matter comes before the court to address the defendant's Motion to Dismiss the Complaint on the grounds that subject matter jurisdiction is lacking.
By way of background, this case is an action brought pursuant to C.G.S. § 52-575 in which the plaintiff claims title by adverse possession to a 3,129 square foot parcel of wetlands, the owner of which is the defendant. The relevant background is as follows. The plaintiff owns property located at 35 Thompson Street in Milford, Connecticut, which is adjacent to the defendant's subject property. For twenty years, it is alleged the defendant abandoned the property while the plaintiff exercised dominion and control over it. The complaint also alleges the plaintiff's use of the property was open, visible, notorious, adverse, exclusive and continuous for more than fifteen years.
Procedurally, on December 13, 2004, the defendant was defaulted for failure to plead. In response to the default, the defendant filed an answer and special defenses. On February 2, 2005, the defendant filed an amended answer and special defenses.
The defendant now moves to dismiss the complaint asserting that the court lacks subject matter jurisdiction because the defendant is not the record owner of the property. The plaintiff has filed a memorandum of law objecting to the motion to dismiss on the grounds that it is the record owner of the property.
The court notes that generally, when a party has been defaulted for failure to plead, the party can only file an answer. The right to file a motion to dismiss is waived unless it raises a lack of subject matter jurisdiction as in this case.
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "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); see Practice Book § 10-31. "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002).
In support of its motion, the defendant, Mariners Walk Association, Inc., argues that it was improperly named in this action. The defendant maintains that it does not own any property at the Mariners Walk Condominium development. The defendant relies on the Common Interest Ownership Act, General Statutes § 47-31, to assert that the unit owners of the condominium have an undivided interest in the property and are therefore the proper parties in interest as opposed to the Mariners Walk Association.
"Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). In this case, the court has the authority to adjudicate an adverse possession claim.
The issue of whether the condominium association is the proper defendant does not implicate jurisdiction. Rather, ownership of the subject property is a question of fact to be decided by a trier of fact or by a pretrial motion, such as a motion for summary judgment. "[S]uing the wrong party, if in fact this defendant is the wrong party, is not a jurisdictional defect." (Internal quotation marks omitted.) McDermott v. Seven Stars Express, Superior Court, judicial district of New Haven, Docket No. CV 02 0461183 (September 27, 2004, Zoarski, JTR); Scacco v. P.R. Scott Co., Superior Court, judicial district of Waterbury, Docket No. CV 96 0131648 (November 26, 1996, Pellegrino, J.); see also Arcal Corp. v. Smith, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 97 0159514 (November 23, 1998, Lewis, J.) (naming wrong party in suit does not implicate subject matter jurisdiction); Sternberg v. Botham, Superior Court, judicial district of Middlesex, Docket No. 61187 (June 5, 1992, Austin, J.) ( 7 C.S.C.R. 853) ( 7 Conn. L. Rptr. 630) (suing wrong party does not implicate court's subject matter jurisdiction). As mentioned by the court in McDermott, naming a wrong defendant will not implicate subject matter jurisdiction if the court still retains the authority to oversee the particular legal controversy. McDermott v. Seven Stars Express, supra, Superior Court, Docket No. CV 02 0461183.
The defendant is precluded from filing a motion to strike due to its prior default and subsequent filing of an answer.
Where the plaintiff, however, fails to abide by statutory prerequisites, the court lacks jurisdiction over the case. See Ferguson v. Ga-Na-Den Too Apartments, Superior Court, judicial district of Windham at Putnam, Docket No. CV 00 0063076 (September 20, 2000, Potter, J.) (suing wrong party implicates jurisdiction only if "that party is a statutorily mandated party").
However, the plaintiff's adverse possession claim does not fall within that category. Consequently, this court has subject matter jurisdiction.
The defendant's motion to dismiss is denied.
The Court
By Ronan, J.