LLC v. Torrington Zoning Board of Appeals et al. (2010)

MEMORANDUM OF DECISION

The plaintiffs, Westside Package Store, LLC and MGZ Partnership, own and operate a package store in Torrington, Connecticut.   Paul A. Baudouin, one of the defendants, is the successful applicant for a change of use issued by the Planning and Zoning Commission of the City of Torrington (“P & Z”), which would permit him to open a package store in Torrington.   The plaintiffs allege that this package store will be within 1500 feet of the plaintiffs' store and within 500 feet of a church in violation of the zoning regulations.   The plaintiffs brought this appeal from the change of use granted to Baudouin, but named Baudouin and the Torrington Zoning Board of Appeals (“ZBA”) as defendants in the citation rather than Baudouin and the P & Z. Service was made on Baudouin, the successful applicant, and on the City Clerk as the statutory agent for the ZBA. The City Clerk is also the statutory agent for the P & Z pursuant to C.G.S. § 8-8(f)(2) and § 52-57(b)(5).

On January 20, 2010, Baudouin moved to dismiss (# 102) this administrative appeal on the ground that the court lacks subject matter jurisdiction.   Specifically, Baudouin argues that the plaintiffs' failure to name the P & Z in the citation renders this appeal subject to dismissal for failure to comply with General Statutes § 8-8.   On January 25, 2010, the plaintiffs moved to substitute the P & Z as a defendant in lieu of the ZBA (# 103), pursuant to General Statutes §§ 52-108 and 8-8(p).  Baudouin filed an objection to the plaintiffs' motion to substitute on January 29, 2010 (# 105), and on February 1, 2010, the plaintiffs filed a memorandum in opposition to Baudouin's motion to dismiss (# 106).   On February 3, 2010, the ZBA filed a motion to dismiss (# 107) on the same grounds as Baudouin's motion to dismiss (# 102).   Finally, on February 11, 2010, the plaintiffs filed an affidavit in support of their opposition to the motion to dismiss.¹  These motions were heard at the short calendar on February 8, 2010.

The first question is whether the court may rule on the motion to substitute before the motions to dismiss.  “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).  “[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of ․ and the court must fully resolve it before proceeding further with the case.”   (Internal quotation marks omitted.)  Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997).   Despite this general rule, some courts have ruled on motions to substitute when motions to dismiss for lack of subject matter jurisdiction were pending.   See, e.g. Allen Construction, Inc. v. Cabanilla, Superior Court, judicial district of Fairfield, Docket No. CV 00 0376419 (June 7, 2001, Rush, J.);   Nygren v. Steier, Superior Court, judicial district of Waterbury, Docket No. CV 00 0156706 (January 10, 2001, Doherty, J.) (28 Conn. L. Rptr. 699).   Such an action is only appropriate in certain circumstances, however.  “A prior ruling on the motion to substitute or amend is especially appropriate in instances where the defect is technical in nature.  Giligan v. Atlantic Coast Cable, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 95 0323793 (February 5, 1998, Maiocco, J.) [ (21 Conn. L. Rptr. 351) ];  see also Pack v. Burns, 212 Conn. 381, 384-85, 562 A.2d 24 (1989) (‘[t]he effect given to such a misdescription usually depends upon the question whether it is interpreted as merely a misnomer or defect in description, or whether it is deemed a substitution or entire change of party;  in the former case an amendment will be allowed, in the latter it will not be allowed’).”   Walker v. Gellert, Superior Court, judicial district of Ansonia-Milford, Docket No. 99 066114 (December 22, 1999, Grogins, J.) [26 Conn. L. Rptr. 171].

In Giligan, for example, the court heard the motion to substitute before the motion to dismiss when the defendants claimed, inter alia, that one of the plaintiffs lacked standing because she was incorrectly named as “administratrix” of the estate rather than as “executor,” her proper title.   Giligan v. Atlantic Coast Cable, supra, Superior Court, Docket No. 95 0323793 (21 Conn. L. Rptr. 351, 351-52).   Likewise, in Pack, which the plaintiffs in the present matter cite in support of their motion to substitute, the plaintiff named the town of Fairfield and the “State of Connecticut Transportation Commission” as defendants, and later moved to cite in “Commissioner of Transportation, J. William Burns as the proper party defendant” instead of the “State of Connecticut Transportation Commission.”   Pack v. Burns, supra, 212 Conn. 382-83.   The court ruled that naming the transportation commission rather than the commissioner as a defendant was a technical defect and reasoned:  “In Servatius v. United Resorts Hotels, 85 Nev. 371, 455 P.2d 621 (1969), the Nevada Supreme Court considered three factors in determining if an amendment simply corrects a misnomer, rather than substitutes a new party.  ‘They are that the proper party defendant (1) have actual notice of the institution of the action;  (2) knew that it was the proper defendant in the action, and (3) was not in any way misled to its prejudice.’   In the matter before us, it is evident that the plaintiff intended to sue the commissioner of transportation and that the commissioner knew that he was the intended defendant.   First, all the parties agree that there is no such entity as the transportation commission.   It can be fairly assumed that the plaintiff did not intend to sue a nonexistent commission ․ Second, the statutory notice required by General Statutes § 13a-144 was properly furnished in this case and was directed to the ‘Honorable J. William Burns, Commissioner of Transportation.’   Third, service of the process that began the action was made at the office of the commissioner of transportation, upon an employee of the commissioner, who was authorized to accept service for him.”   (Citation omitted.)  Id., 385-86.

The problem presented by the facts of the present case is that the motion to substitute proposes an entire change of party, from the ZBA to the P & Z, both of which are functioning municipal boards.   This cannot be characterized as a mere defect in description.   On the other hand, the facts of this case satisfy the three factors approved in the Pack case for determining if an amendment simply corrects a misnomer.   Service was made on the Torrington City Clerk who is the agent for service for the P & Z and the ZBA. The appeal papers went to the city land use office and to the City Planner where it must have been obvious that the plaintiff mistakenly named the wrong board, and where the P & Z would have received actual notice of the appeal.   The appeal refers to a change of use application granted to Paul A. Baudouin and published in the Waterbury Republican American.   Change of use applications are handled by the P & Z, not the ZBA. Only the P & Z granted a change of use application to Paul A. Baudouin which was published in the Waterbury Republican American.   It would have been clear to the P & Z that it was the proper party.   The P & Z was not misled in any way to its prejudice because the City Planner is simply holding the papers waiting for further instructions.   The P & Z has not taken any action which will compromise its ability to defend the appeal on its merits.

Although utilization of the three-pronged analysis announced in Pack stretches the meaning of a misnomer to its limit, and beyond what other courts have permitted, the court will grant the plaintiffs' motion to substitute before acting upon the defendants' motions to dismiss.   In taking this action the court is furthering the intent expressed in C.G.S. § 8-8(p):  “The right of a person to appeal a decision of a board to the Superior Court and the procedure proscribed in this section shall be liberally interpreted in any case where strict adherence to the rules would work surprise or injustice.”   The court is also mindful of the following admonition expressed by the Appellate Court:  “Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court.   Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure ․ For that reason, [a] trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of the appeal.”  (Citations omitted;  internal quotation marks omitted.)  Egri v. Foisie, 83 Conn.App. 243, 249-50, cert. denied, 271 Conn. 931 (2004).

Having granted the plaintiffs' motion to substitute (# 103), the grounds for the two motions to dismiss have been corrected.   Therefore, the motions to dismiss (# 102 and # 107) are denied.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. In the affidavit, Paul J. Krenitsky attests:  “I am the State Marshal that served the process in the above captioned matter.   This process was delivered to the Torrington City Clerk on December 8, 2009 and the applicant for the site approval on December 9, 2009.   On February 12, 2010, I visited the City of Torrington Planning & Zoning Office and spoke with the City Planner, Martin J. Connor.   Mr. Connor advised me that he was in possession of the paperwork served by me in the above captioned matter and was awaiting word from the Corporation Counsel.”.  FN1. In the affidavit, Paul J. Krenitsky attests:  “I am the State Marshal that served the process in the above captioned matter.   This process was delivered to the Torrington City Clerk on December 8, 2009 and the applicant for the site approval on December 9, 2009.   On February 12, 2010, I visited the City of Torrington Planning & Zoning Office and spoke with the City Planner, Martin J. Connor.   Mr. Connor advised me that he was in possession of the paperwork served by me in the above captioned matter and was awaiting word from the Corporation Counsel.”

Pickard, John W., J.