Opinion
HHDCV1660655155
05-09-2018
777 Residential, LLC v. Metropolitan District Commission
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Dubay, Kevin G., J.
MEMORANDUM OF DECISION
Dubay, J.
FACTS
The defendant, the Metropolitan District Commission, imposed a supplemental sewer assessment against property owned by the plaintiff, 777 Residential, LLC. The defendant notified the plaintiff of this supplemental assessment on December 23, 2015, and the plaintiff appealed. The plaintiff served the defendant with its summons and appeal on January 13, 2016, and filed its appeal with the Superior Court on January 22, 2016. On February 15, 2018, the defendant filed a motion to dismiss on the ground that the court lacks subject matter jurisdiction over the matter because the plaintiff failed to file its appeal within the applicable twenty-one-day statutory period. The plaintiff filed a memorandum of law in opposition to the motion to dismiss on March 16, 2018. The court heard oral argument on April 2, 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.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). Practice Book § 10-30 provides, in relevant part, that " [a] motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." " 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 subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Sousa v. Sousa, 322 Conn. 757, 770, 143 A.3d 578 (2016). " [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Id.
The defendant argues that the court lacks subject matter jurisdiction over the appeal because the plaintiff failed to take its appeal within twenty-one days as mandated by General Statutes § 7-250. The defendant further argues that Vecchio v. Sewer Authority, 176 Conn. 497, 408 A.2d 254 (1979), is controlling, and that the Vecchio court interpreted § 7-250 as requiring a plaintiff to file their appeal with the Superior Court within the twenty-one-day period. In response, the plaintiff argues that the defendant misapplies Vecchio. The plaintiff also argues that interpreting § 7-250 as requiring plaintiffs to file their appeal with the court within twenty-one days would not make sense given that the statute references a return date.
Section 7-250 governs the procedure that a water pollution control authority must take when imposing an assessment against property. Section 7-250 provides, in relevant part, that " appeals from such assessment must be taken within twenty-one days" and that " any person aggrieved by any assessment may appeal to the superior court for the judicial district wherein the property is located and shall bring any such appeal to a return day of said court not less than twelve nor more than thirty days after service thereof ..." Courts analyzing this statutory language have concluded that § 7-250 merely requires a plaintiff to commence its action by service of process within the twenty-one-day period rather than both serve process and file its appeal with the court. Deary v. Stonington Water Pollution Control Authority, Superior Court, judicial district of New London, Docket No. 526850 (November 19, 1993, Teller, J.) (10 Conn.L.Rptr. 395, 398). In Deary, the court noted that " [u]nless there is a provision to the contrary, the general rule is that administrative appeals are governed by rules which apply to civil actions ... General Statutes § 7-250, however, provides that the appellant shall bring any such appeal to a return day of said court not less than twelve nor more than thirty days after the service thereof ... [I]t is not the province of a court to supply what the legislature chose to omit ... It is evident that if the legislature had intended to require the appeal to be both served and filed within twenty-one days of the filing of the assessment with the town clerk, it could have expressly provided so." (Citations omitted; internal quotation marks omitted.) Id., 396. The Deary court, therefore, concluded that " the legislature’s intent in § 7-250 was to require that the appeal be commenced within twenty-one days by the service of process, and that the return of process not less than twelve or more than thirty days thereafter be made in accord with other relevant statutes." Id., 398.
Moreover, requiring a plaintiff to both serve the defendant with process and file its appeal within twenty-one days under § 7-250 would not make sense given the statute’s full language, which includes a return date. As the Deary court reasoned, " § 7-250 provides that an appellant may ... bring such appeal to a return day of said court not less than twelve nor more than thirty days after service [of the appeal process] ... General Statutes § 52-46a provides, however, that process must be filed in the court clerk’s office at least six days before the return day. Thus, § 7-250, when read together with § 52-46a, as it must, would admit of at least two constructions. The first [construction] ... would require the appellant to both serve and file process no later than the twenty-first day after the filing date of the assessment, yet allows the designation of a return date up to thirty days later. The second construction would provide for service of process within the twenty-one-day limitation and require filing of the appeal in the court clerk’s office at least six days before the return date selected, which could be up to twenty-four days after the twenty-one-day limitation. The first alternative could result in the impossibility of making service and return to court, if a plaintiff were to wait until the twenty-first day to bring the appeal, thereby defacto shortening the twenty-one-day limitation and render § 52-46a nugatory. The latter would allow the sheriff to make service, prepare his return of service and copies thereof, return them to appellant’s counsel to review the sheriff’s return of service, and allow counsel reasonable time to file them in the clerk’s office." Id., 397-98. Reading § 7-250 as requiring a plaintiff to serve process within twenty-one days but allowing them to file an appeal with the court after that period, therefore, offers a " more reasonable construction and allows both parts of § 7-250 to be harmonized with each other and with § 52-46a." Id., 398.
Nevertheless, the defendant argues that the Vecchio court interpreted § 7-250 as requiring that a plaintiff both serve the defendant with process and file its appeal with the court within the twenty-one-day period. In Vecchio, the court upheld the trial court’s dismissal of the plaintiff’s appeal, stating that " the plaintiffs were required to file their appeal within twenty-one days of the date the assessment was filed ... Since the plaintiffs admittedly failed to comply with this statutory directive, and because no claim is made that the actual filing of the assessment or subsequent notice thereof was, in any way, insufficient, the plaintiffs’ appeal was fatally defective." (Citation omitted; emphasis in original.) Vecchio v. Sewer Authority, supra, 176 Conn. 501. The defendant in the present case cites this language in Vecchio as authority for the proposition that § 7-250 requires the plaintiff to both serve process and file its appeal within twenty-one days.
The Vecchio court, however, also appeared to equate the filing of an appeal from a sewer assessment with the commencement of the action by service of process. In another part of its opinion, the court noted that when the plaintiffs received notice of the sewer assessment, they " immediately commenced the present action challenging the assessment and claiming damages. Since the plaintiffs’ appeal from the assessment was not taken within twenty-one days after the filing as required by § 7-250 of the General Statutes, the trial court sustained the defendant’s plea in abatement and dismissed the plaintiffs’ action." Id., 499-500. The Vecchio court, therefore, appears to contradict itself as to whether § 7-250 requires a plaintiff to serve process and file its appeal with the court within twenty-one days. Regardless of this conflicting language, Vecchio is also distinguishable from the present case because the plaintiffs in Vecchio clearly failed to both serve the defendant with process and file its appeal with the court within the statutory twenty-one-day period. In contrast, in the present case, the plaintiff served the defendant with process within twenty-one days, and filed its appeal with the court shortly thereafter. Vecchio thus involves a different factual scenario, and is not controlling. Under the plain language of § 7-250 and its interpretation in Deary, the plaintiff has timely filed its appeal from the supplemental sewer assessment levied against its property. The plaintiff served the defendant with process on January 13, 2016, which was exactly twenty-one days after it was notified of the filing of an assessment against its property. To find that the plaintiff was required to both serve the defendant with process and file its appeal within twenty-one days, as the defendant contends, would contravene § 7-250’s plain language and insert an additional requirement into the statute that the legislature did not itself choose to include. Because the plaintiff timely filed its appeal pursuant to § 7-250, the court, therefore, has subject matter jurisdiction over the appeal. Accordingly, the defendant’s motion to dismiss is hereby denied.