Perelli v. Town of Madison

Anthony P. PERELLI v. TOWN OF MADISON et al.

No. CV186080934S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

December 26, 2018

UNPUBLISHED OPINION

Wilson, J.

STATEMENT OF CASE AND PROCEDURAL HISTORY

The plaintiff filed this tax appeal from the Madison Board of Assessment Appeals of the Town of Madison (BAA). The return date was June 22, 2018. The complaint dated May 16, 2016, was returned to court on May 16, 2018. The return of service was filed with the court on June 28, 2018, which states that the town of Madison was served on June 25, 2018.

The defendants have moved to dismiss the plaintiff’s complaint for lack of subject matter jurisdiction. The defendants argue that pursuant to General Statutes § 12-117a, the plaintiff was required to complete service upon the defendant town within two months from the date of the mailing of notice of the BAA’s denial of the plaintiff’s petition. The town of Madison notified the plaintiff of the BAA’s decision by mail on March 23, 2018. The plaintiff did not serve the town until June 25, 2018, more than two months after the town notified the plaintiff of its decision. The plaintiff argues that because he filed his appeal with the court within the two-month period his appeal is timely. The court heard oral argument on the motion on September 17, 2018.

DISCUSSION

"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." (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). "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 § 143, which is now § 10-31. "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." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011). "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

General Statutes § 12-117a provides in relevant part: "Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, with respect to the assessment list for the assessment year commencing October 1 1989, October 1, 1990, October 1, 1991, October 1, 1992 October 1, 1993, October 1, 1994, or October 1, 1995, and with respect to the assessment list for assessment years thereafter, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action."

Pursuant to General Statutes § 12-117a, the plaintiff was required to complete service of the appeal upon the defendants within the two-month appeal period, and the failure to do so deprives the court of subject matter jurisdiction. Chestnut Point Realty, LLC v. East Windsor, 324 Conn. 528, 532-33, 153 A.3d 636 (2017) (affirming Appellate Court’s upholding trial court’s decision granting defendant town’s motion to dismiss because § 12-117a requires service of process within...