Connecticut National Bank, Trustee U/W/O Otto Wilhelm Heise (Bank of America) v. Town of Newtown et al. (2010)

RULING ON MOTION TO DISMISS (# 101.00)

The plaintiff, Connecticut National Bank, Trustee U/W/O/ Otto Wilhelm Heise (Bank of America), commenced this tax appeal by summons and complaint dated May 17, 2010 and made returnable to the Superior Court on June 8, 2010.   Thereafter, the defendants filed the present motion to dismiss on June 18, 2010 on the ground that the court lacks jurisdiction due to insufficiency of service of process.

“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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007);  Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007).  “Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.”  (Emphasis in original;  internal quotation marks omitted.)  Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).  “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.”  (Internal quotation marks omitted.)  Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003);  Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 234-35, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000).

FACTS

The plaintiff's summons and complaint cited both the town of Newtown and the Newtown board of assessment appeals (board) as defendants.   The summons listed as the address for Newtown, “Debbie A. Aurelia, Town Clerk, Newtown Municipal Center, 3 Primrose Street, Newtown, CT 06470” and for the board, “Newtown Municipal Center, 3 Primrose Street, Newtown, CT 06470.”   The return of service by Marshal Ronald Z. Kadar dated May 17, 2010 and appended to the summons and complaint recites that service of the writ, summons and complaint was made “by leaving a true and attested copy of the original for TOWN OF NEWTOWN BOARD OF ASSESSMENT APPEALS by leaving two attested copies of the original in the hands of Town Clerk Debbie A. Aurelia at Newtown Municipal Center, 3 Primrose Street, Newtown, CT.” Subsequent to the filing of the defendants' motion to dismiss, the plaintiff on August 31, 2010 filed a “Notice of Filing of an Amended State Marshal's Return.”   Appended to the notice was an amended return by Marshal Ronald Z. Kadar dated May 17, 2010 purporting to correct the prior return of service to indicate that service was made on both Newtown as well as the Town of Newtown Board of Assessment Appeals.   The amended or corrected return recites that service of the writ, summons and complaint was made “by leaving a true and attested copy of the original for TOWN OF NEWTOWN (BOARD OF ASSESSMENT APPEALS) and TOWN OF NEWTOWN by leaving two attested copies of the original in the hands of Town Clerk Debbie A. Aurelia at Newtown Municipal Center, 3 Primrose Street, Newtown, CT.”

DISCUSSION

In his brief filed prior to the filing of the amended marshal's return, counsel for the defendants asserts that Newtown was never served and because General Statutes § 12-117a provides that the proper party to an appeal of a municipal tax assessment is the municipality and not the municipal board or commission, the appeal must fail for insufficiency of service of process.   Counsel did not file a written response to the amended return but addressed it in oral argument to the court.   It is counsel's position that because General Statutes § 52-57(b)(1) and (5) requires the service of one copy of the process upon the town clerk for service on a municipality and two copies upon the town clerk for service on a municipal board or commission that the marshal's return must be read as reflecting service only on the board and not on Newtown.   Counsel did not dispute the propriety of, and cites no authority as prohibition against, the filing of an amended return.

In response the plaintiff asserts that any errors in either the marshal's initial return or his amended return are circumstantial errors and as such shall not be abated under the provision of General Statute § 52-123 which provides as follows:  “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”

In applying the provision of the statute the court must first consider whether the plaintiff intended to sue the proper party.   Next the court must consider “three factors to determine whether the error was a misnomer and therefore a circumstantial defect under § 52-123:(1) whether the proper defendant had actual notice of the institution of the action;  (2) whether the proper defendant knew or should have known that it was the intended defendant in the action;  and (3) whether the proper defendant was in any way misled to its prejudice.”  Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 397, 655 A.2d 759 (1995).

The court finds that because the plaintiff in fact properly cited Newtown in both its summons and complaint that it intended to sue the proper party.   The court also finds that by the recitations of the marshal's amended return, he did intend to effect service upon the town clerk for Newtown.   Further, the court finds that Newtown had actual notice of the institution of the action, that it knew or should have known that it was the intended defendant, and that it has not in any way been mislead to its prejudice.   For these reasons, any errors in the marshal's amended return as to service on Newtown are circumstantial.   The defendants' motion to dismiss is therefore denied.

Michael G. Maronich, Judge

Maronich, Michael G., J.