Opinion
No. CV 01 038 26 56
April 21, 2003
MEMORANDUM OF DECISION RE (#106) DEFENDANT'S MOTION TO DISMISS
This matter comes before the court as an application for reassessment of damages and benefits of land belonging to the plaintiffs, Raymond R. Topar and James Edward Garcia. According to the parties, on November 19, 1999, the defendant, James Sullivan, commissioner of transportation, pursuant to General Statutes §§ 13a-73 (b) and 13a-73 (e), filed a notice of condemnation and assessment of damages with the clerk of the Superior Court for the judicial district of Fairfield, for a temporary easement which crossed twenty feet of the plaintiffs' land in Bridgeport, Connecticut. The temporary easement required removal of a garage belonging to the plaintiffs and was necessary for the defendants' work in the excavation and installation of storm pipes essential for improvements to Interstate Route 95. Damages were assessed by the defendants at $13,610.
This court takes judicial notice that the notice of condemnation and assessment of damages was filed under Commissioner of Transportation v. Topar, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0368503, on November 19, 1999.
Pursuant to § 13a-76, the plaintiffs filed an appeal on April 25, 2001, against the defendants. A judgment of default for failure to appear entered against the state on December 6, 2001, and against the commissioner on January 10, 2002. An appearance was then filed on behalf of both defendants on January 15, 2002.
On May 3, 2002, the court granted the plaintiffs' subsequent motion for default against the defendants for failure to plead. On May 23, 2002, the plaintiffs requested a hearing in damages as to the default.
On August 19, 2002, the commissioner filed the present motion to dismiss on the ground that the court lacks subject matter jurisdiction because the plaintiffs filed the appeal outside the time frame mandated by § 13a-76.
The plaintiffs, on August 28, 2002, filed an objection to the defendant's motion to dismiss on the basis that proper statutory notice of the condemnation and assessment was not given to them until April 5, 2001.
In light of the May 3, 2002 default entered against the defendants for failure to plead, the plaintiffs further argue that the court should accept as admitted their allegation that proper statutory notice was not given to them until April 5, 2001.
Lastly, the plaintiffs argue that the defendant waived his argument by not filing his motion to dismiss in a timely manner.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, 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." Gurliacci v. Mayer, 218 Conn. 531, 544 (1991).
As to the plaintiffs' contention that the defendant waived his argument, "[a]ny [party] wishing to contest the court's jurisdiction, may do so . . . but must do so by filing a motion to dismiss within thirty days of the filing of an appearance." Connor v. Statewide Grievance Committee, 260 Conn. 435, 445 (2002); see Practice Book § 10-30.
Practice Book § 10-30 provides in pertinent part: "Any party wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance."
Questions involving subject matter jurisdiction, however, are governed by Practice Book § 10-33, which provides: "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings . . . If at any point, it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed." Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 52 (2002).
The plaintiffs argue that the right to due process and to be compensated for property taken is not one created by statute, but is rather a common-law right which is personal and procedural in nature and not subject matter jurisdictional as argued by the defendants. Therefore, the defendant waived any claim of lateness on the part of the plaintiffs by not properly pleading this claim within the time provided by § 10-30.
"In deciding whether a time limitation contained within a statute is subject to waiver, we must determine whether the limitation is substantive or procedural in nature . . . A statute of limitations is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action . . . Where the limitation is deemed procedural and personal it is subject to being waived unless it is specifically pleaded because the limitation is considered merely to act as a bar to a remedy otherwise available . . . Where, however, a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter." Ecker v. West Hartford, 205 Conn. 219, 231-32 (1987).
The Supreme Court recently addressed the jurisdictional nature of the time limitations contained within § 13a-76, and determined that: "Section 13a-76 . . . provide[s] a statutory mechanism to effectuate the common-law right to just compensation for a taking by the government . . ." Commissioner of Transportation v. Kahn, 262 Conn. 257, 268 (2003). Accordingly, the court held that, "the six month period for filing an application for reassessment under § 13a-76 is not jurisdictional. Rather, it is like a statute of limitations, requiring the commissioner to raise timely the property owner's failure to comply with that provision; failure to do so constitutes a waiver of the defense." Id. Because the defendant's appearance was filed on January 15, 2002, and he did not file the motion to dismiss until August 19, 2002, the defendant's motion is outside the thirty days required by Practice Book § 10-30. Therefore, the defendant has waived his claim to the statute of limitations.
As to whether the plaintiffs' application was timely filed, § 13a-76 provides in relevant part that "[a]ny person claiming to be aggrieved by the assessment of such special damages . . . by the commissioner may, at any time within six months after the same has been so filed, apply to the superior court . . . for a reassessment of such damages . . ."
The defendant argues that the time limitation in § 13a-76 requires strict compliance on the part of the plaintiff in filing an appeal. Because the appeal was filed by the plaintiff some eighteen months after the notice and assessment was filed with the court, this court lacks subject matter jurisdiction.
The plaintiff, in opposition, argues that absent notice, the right to appeal is meaningless, and that the time in which an appeal is to be taken does not begin to run until proper notice is received. The plaintiffs claim that they applied to this court immediately upon receiving the copy of the required notice the clerk sent on April 5, 2001. In support of their claim, the plaintiffs submit a copy of the statutory notice of assessment of damages sent to the plaintiffs by the clerk of the court, which document is dated April 5, 2001.
The plaintiffs also claim that because the defendants were defaulted and a hearing in damages scheduled, the court should take as admitted that statutory notice was not given until April 5, 2001.
"[S]tatutes authorizing the exercise of eminent domain are to be strictly construed against the condemner." Laurel, Inc. v. Commissioner of Transportation, 180 Conn. 11, 31 (1980).
Section 13a-73 (b) provides in pertinent part: "The assessment of such damages and of such benefits shall be made by the commissioner and filed by him with the clerk of the superior court in the judicial district in which the land affected is located, and such clerk shall give notice of such assessment to each person having an interest of record there in by mailing to each a copy of the same, postage prepaid, and, at any time after such assessment has been made by said commissioner, the physical construction of such layout, alteration, extension, widening, maintenance storage area or garage, change of grade or other improvements may be made." "It is this statute which empowers the state commissioner of transportation to take land which he finds necessary for the improvement of any state highway. The statute also sets forth the procedures with which the commissioner must comply to take the land and declares the legal effect of those procedures. Paramount among the considerations articulated by the statute and fundamental to both state and federal due process requirements are those portions which ensure that each person who has an interest of record in the land shall receive notice of the taking, and that the commissioner shall sign and file with the town clerk a certificate setting forth the fact of the taking, a description of the real property so taken and the names and residences of the owners from whom it was taken." Laurel, Inc. v. Commissioner of Transportation, supra, 180 Conn. 29.
"The time within which an appeal may be taken does not begin to run until the plaintiff receives notice of the condemnation . . . The fundamental reason for the requirement of notice is to advise all affected parties of their opportunity to be heard and to be apprised of the relief sought . . . Paramount among the considerations articulated by the statute and fundamental to both state and federal due process requirements are those portions which ensure that each person that has an interest of record in the land shall receive notice of the taking." (Citations omitted; internal quotation marks omitted.) Zupaniotis v. Commissioner of Transportation, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 01 0185037 (October 9, 2002, D'Andrea, J.T.R.) ( 33 Conn.L.Rptr. 221, 222). "Indeed, not only would it be manifestly unfair to preclude [the property owner] from obtaining fair compensation for the property taken simply because of the trial court's failure to adhere to the notice requirements under the statute . . . such a conclusion would raise serious due process concerns." (Emphasis in original.) Commissioner of Transportation v. Kahn, supra, 262 Conn. 275-76.
"[T]he entry of a default operates as a confession by the defaulted defendant of the truth of the material facts alleged in the complaint which are essential to a judgment. Thus, the defaulted defendant is precluded from making any further defense to the action." Aetna Casualty Surety Co. v. Jones, 220 Conn. 285, 295 n. 12 (1991). Because the defendant was defaulted on May 3, 2002, for failure to answer the complaint, he is precluded from challenging the plaintiffs' satisfaction of their burden of proof as to the date they received notice from the clerk. In addition, "[t]here is no question . . . concerning our power to take judicial notice of files of the Superior Court, whether the file is from the case at bar or otherwise." Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 317 (1983).
This court takes judicial notice of the fact that the original return of service filed by the Deputy Chief Clerk, in Commissioner of Transportation v. Topar, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 990368503, contains a notation that the file was not brought to his attention until March 28, 2001, and indicates that he mailed notice to the plaintiffs on April 5, 2001, pursuant to § 13a-73.
Therefore, this court finds that the plaintiffs did not receive notice of the defendants' condemnation and assessment in accordance with § 13a-73 until April 5, 2001. As such, the six-month time limitation did not begin running until that date. Since the plaintiffs filed the appeal on April 25, 2001, this court finds that the appeal was timely filed.
For the foregoing reasons, the defendant's motion to dismiss is hereby denied.
JOSEPH W. DOHERTY, JUDGE