Opinion
No. CV05-4002111-S
February 15, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS #110
This memorandum of decision addresses the Motion to Dismiss (#110) and accompanying Memorandum on Motion to Dismiss filed by the defendants, Joseph S. Mencarini and Patricia C. Mencarini (Mencarini defendants) on July 31, 2006. The motion arises from a condemnation proceeding through which, upon application by the plaintiff City of Meriden (city), the clerk of the court issued a certificate of taking regarding certain portions of property to which the Mencarini defendants previously asserted title, located at 141 Riverside Drive in Meriden, Connecticut (the property). Through their motion, the Mencarini defendants assert that the underlying condemnation proceeding is fatally flawed and the certificate of taking is void. They claim that the judgment of condemnation is subject to dismissal as "the court lacks subject matter jurisdiction due to plaintiff's failure to negotiate with defendants prior to instituting the action as required by Connecticut General Statutes 48-12." (#110.)
Section 48-12 provides: "The procedure for condemning land or other property for any of the purposes specified in sections 48-3, 48-6, 48-8 and 48-9, if those desiring to take such property cannot agree with the owner upon the amount to be paid him for any property thus taken, shall be as follows: The Comptroller in the name of the state, any town, municipal corporation or school district, or the trustees or directors of any state institution in the name of the state, shall proceed in the same manner specified for redevelopment agencies in accordance with sections 8-128, 8-129, 8-129a, 8-130, 8-131, 8-132, 8-132a and 8-133."
On August 21, 2006, the plaintiff city filed its Objection to Defendant's Motion to Dismiss (#116) along with a Memorandum of Law in Support of the City of Meriden's Objection to Defendant's Motion to Dismiss (Memorandum in Support) (#117). Generally, the city asserts that the condemnation proceeding constitutes a final judgment that had previously been entered against the defendants; that the defendants failed to timely move to open that judgment; that title to the property at issue rested with the plaintiff city prior to the condemnation proceeding; and that, pursuant to the issued certificate of taking, title to the property at issue was again vested with the city.
For the following reasons, the court finds this matter, as with the consolidated matters, in favor of the City, and therefore DENIES the Mencarini defendants' motion to dismiss (#110), while SUSTAINING the city's objection (#116).
I. PROCEDURAL HISTORY AND FACTUAL FINDINGS
As a preliminary issue, a review of the court file reflects that on August 28, 2006, the Mencarini's case was ordered consolidated with two other cases: Meriden v. Childs, Docket No. CV 05 4002109 (Childs case); and Meriden v. Mongillo, Docket No. CV 05 4002110 (Mongillo case). In its Memorandum of Decision re: Motion to Consolidate, the court (Shluger, J.) noted that in each proceeding, "[t]he defendants are . . . land owners who have been [a]ffected by the eminent domain taking of a portion of their residential real estate to make way for . . . the `Quinnipiac River Linear Trail.' The defendants are all represented by the same attorney and the City of Meriden is represented by the same attorney as well [in each action]." (#118.) In ordering consolidation, the court adopted the defendants' "compelling argument to justify the consolidation of the cases in the interest of judicial economy." (#118.) Mirroring the motion to dismiss in the Mencarini case, motions to dismiss (#110) have been filed in both the Childs and Mongillo cases; for clarity, separate memoranda of decision have been issued in each case.
See generally, C. Tait, Connecticut Evidence (3d Ed. 2001) § 2.16.5, Judicial Proceedings and Records.
The motion to dismiss and objection thereto was presented to the court at short calendar sessions held on September 11, 2006 and again on November 1, 2006. Vigorous oral argument and evidentiary submissions were tendered on both occasions; the motions to dismiss in the consolidated matters were also the subject of argument and evidentiary presentations on those dates. Upon deliberation, close review of the procedural history of this matter, the contents of the court file and Exhibit 1, presented at the hearing on September 11, 2006, along with consideration of the written and oral arguments of counsel support the following conclusions:
In reaching its determination in this matter, the court drew no conclusions from additional exhibits tendered by the city at the hearing on November 1, 2006.
Through its correspondence dated September 29, 2004, the city notified the Mencarini defendants of its intentions with regard to the property at issue. (Exhibit 1.) At oral argument on September 11, 2006, the parties stipulated that like correspondence was sent by the city to the Childs defendants and also to the Mongillo defendants, who received the notice of the city's intentions. The city advised the defendants of its plans and its claimed assertion of clear title to the property, explaining its intention "to construct a linear trail on the abandoned railroad line which runs through your property. Title to the property comes to the City through an unbroken chain of deeds going back more than 120 years." (Emphasis added.) (Exhibit 1; see also Stipulation of September 11, 2006.) Through this correspondence, the city further notified the defendants of its claims that "[a]lthough the City has full title to the property on which the linear trail will be located, your deeds constitute a cloud on that title which must be cleared for the project to proceed." (Exhibit 1.) Thereby, the city further notified the defendants of its intention to pursue an "eminent domain action authorizing the condemnation of any interest you may have in the linear trail property. This is the most efficient manner in which to eliminate the cloud on the City's title. The condemnation action will not affect your title to your property in any respect, but will confirm the city's title to the property on which the linear trail will be constructed. After the City Counsel authorizes this action, you will be served with the condemnation lawsuit. Again, what the City will be requesting in this lawsuit is only that the Court issue a certificate to the City which will be recorded on the land records, thus confirming the City's ownership of the linear trail property." (Exhibit 1.) At oral argument on September 11, 2006, the parties further stipulated that the letter of September 29, 2004, constitutes the city's sole involvement in any "negotiations" with the three defendants, including the Mencarini defendants, concerning the taking of the property at issue.
On February 2, 2005, the city filed its statutory notice regarding the property, thus instituting its eminent domain proceeding. This notice, with an accompanying statement of compensation regarding the property dated February 2, 2005, and Exhibit A (Description of Property to be Taken) was duly served at the usual place of abode of Joseph S. Mencarini and Particia C. Mencarini by State Marshal Matthew Ross on February 9, 2005; the marshal returned his service to court on that date. On March 18, 2005, the Chief Clerk of the Judicial District of New Haven at Meriden issued his authorized certificate of taking regarding the property at issue. In pertinent part, the clerk's certificate stated: "The taking has now been completed, upon the recording of this Certificate in the Office of the Town Clerk of each town in which such property is located, [the interest in the property] shall vest in the Condemnor and the right to just compensation shall vest in the persons entitled thereto, and the Condemnor may enter upon such property and take such action as is proposed with regard thereto." While they may differ as to the import of such recording, the parties do not contest the city's assertion that "The City of Meriden filed the Certificate of Taking with the Meriden City Clerk's office on March 18, 2005 and it can be found at Vol. 3529, Page 314 of the Meriden Land Records." (#117.)
The February 2, 2005, statement of compensation indicates that the city requires the property "for the purpose of the construction of a linear trail in conjunction with a project entitled `Quinnipiac River Linear Trail.'" The statement of compensation further indicated that the city "condemnor has determined that One Dollar ($1.00) is to be paid to the persons entitled having an interest in the real property as the permanent improvements to said property more than offset the taking."
On July 19, 2006, the Mencarini defendants filed a Motion for Temporary Injunction against Plaintiff, with an accompanying Memorandum on Motion for Temporary Injunction (#106). Through the motion, the Mencarini defendants presented their claim for "a temporary injunction prohibiting and Restraining plaintiff from maintaining and continuing construction activity on the real property" at issue. (#106.) Both the motion and memorandum relating to the injunction rest upon the Mencarini defendants' assertions that the city failed to properly engage in negotiations with the owners of the property in question, as contemplated by General Statutes § 48-12. That motion remains pending.
On June 2, 2005, the Mencarini defendants filed an appeal and application for review of the statement of compensation (#104); that appeal remains pending, and is not presently before the court. To the extent that the Mencarini defendants have submitted a timely application for review of the statement of compensation, that matter remains pending before the court.
A similar appeal and application for review of the statement of compensation was filed in the Childs case on April 4, 2005, and in the Mongillo case (#104) on the same day. Those appeals also remain pending, and are not presently before the court.
In noting that the Mencarini defendants' objection to the statement of compensation was filed in a timely manner, the court in no way intends to condone any procedural irregularities that may otherwise exist. For instance, the submission of the compensation appeal in the same docket as the eminent domain proceeding may or may not have preserved the defendants' opportunity to be heard. "[T]he exact procedure to be followed under [§ 8-132] is unclear." Killingly v. Wells, 18 Conn.App. 508, 512, 558 A.2d 1039 (1989). In Killingly v. Wells, the Appellate Court held that § 8-132 does not mandate the filing of a separate action to contest a statement of compensation. Id., 513. Nevertheless, that holding has been criticized and not followed by the more recent cases of Bristol v. Milano, 45 Conn.Sup. 605, 723 A.2d 835 (1998), and Housing Authority v. Charter Oak Terrace/Rice Heights Health Center, Inc., 47 Conn.Sup. 505, 810 A.2d 333 (2002), rev'd on other grounds, 82 Conn.App. 18, 342 A.2d 601 (2004), which held that an objection to a statement of compensation must be filed as a separate case. Bristol v. Milano, supra, 45 Conn.Sup. 612-13. ("The appeal and application for review cannot be heard and decided as a short calendar or trial motion in a deposit file or docket opened previously by the court clerk for the acceptance, retention and payment of the amount of damages assessed by the condemnor upon his taking of the property.") Although the Appellate Court has had the opportunity to clarify what the proper § 8-132 procedure is, it has not yet done so. See Housing Authority v. Charter Oak Terrace/Rice Heights Health Center, Inc., 82 Conn.App. 18, 842 A.2d 601 (2004); Housing Authority v. Charter Oak Terrace/Rice Heights Health Center, Inc., 85 Conn.App. 240, 856 A.2d 529 (2004) (declining to address this procedural issue when ruling on appeals from a trial court case which stated Killingly was incorrect and followed Bristol v. Milano.) Moreover, "[t]he question of what is just compensation [in an eminent domain proceeding] is an equitable one rather than a strictly legal or technical one . . . Commissioner of Transportation v. Towpath Associates, 255 Conn. 529, 540, 767 A.2d 1169 (2001)." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 76, 828 A.2d 1107 (2002). Thus, the court leaves resolution of the compensation issues for another day.
As noted, the Mencarini defendants filed the pending motion to dismiss (#110) on July 27, 2006; that motion was accompanied by the Mencarini defendants' Memorandum on Motion to Dismiss. The city responded with its objection (#116) on August 21, 2006, accompanied by its Memorandum of Law in Support of the City of Meriden's Objection to
Defendant's Motion to Dismiss (#117). II. JURISDICTIONAL ISSUES
In reaching its determination on the issues related to jurisdiction, the court has adhered to the applicable principles of law. It is axiomatic that "[a] motion to dismiss shall be used to assert lack of jurisdiction over the subject matter . . ." Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). "Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) Haigh v. Haigh, 50 Conn.App. 456, 460-61, 717 A.2d 837 (1998)." Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 307, 763 A.2d 1055 (2001) (reversing trial court's dismissal of the underlying action for lack of subject matter jurisdiction). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).
Applying those principles to the pending case, it is apparent that the Mencarini defendants raise a single ground for asserting that the court lacks subject matter jurisdiction: they argue that because the city never engaged in negotiations for the acquisition of their property as required by General Statutes § 48-12, the court has no jurisdiction over the condemnation proceedings that took place in March of 2005. At oral argument, the defendants also submitted that the city utilized condemnation proceedings as an inappropriate method of clearing any cloud over the title to the property at issue; instead, the defendants argue, the city should properly have pursued a quiet title action instead of relying upon the eminent domain protocol provided by statute. Effectively, then, the Mencarini defendants argue that because the court lacks jurisdiction over the subject matter of the condemnation proceeding, the clerk's certificate of taking is void ab initio.
The city counters by raising a hybrid arguments of law and fact: first, the city observes that the defendants never sought to open the judgment that was entered in the case more than a year ago, and that the defendants thereby ceded any jurisdictional defects; second, the city contends that it has clear title to the property because the defendants have now failed to show fraud or mistake in the issuance of the certificate of taking; third, the city asserts that the defendants did not file their motion to dismiss in a timely manner as statutorily required between the notice of the eminent domain action and the court-issued certificate of taking; fourth, the city argues that the defendants have not met their burden of showing how the court lacks subject matter jurisdiction; and fifth, the city claims that the eminent domain proceedings serve as the legally appropriate action for clearing title to the property. At the short calendar hearing on the motion, the city also argued that the doctrine of laches prohibits the defendants' from bringing their motion to dismiss.
A. EFFECT OF THE EMINENT DOMAIN PROCEEDING
The Mencarini defendants' arguments are defeated by application of the relevant legislation related to the city's election to engage in the eminent domain protocol to secure clear title to the property at issue. Municipal condemnation proceedings are governed by statute. "General Statues § 48-6(a) . . . provides that `[a]ny municipal corporation having the right to purchase real property for its municipal purposes which has, in accordance with its charter or the general statutes, voted to purchase the same shall have power to take or acquire such real property, within the corporate limits of such municipal corporation, and if such municipal corporation cannot agree with any owner upon the amount to be paid for any real property thus taken, it shall proceed in the manner provided by section 48-12 within six months after such vote or such vote shall be void.' Section 48-12 of the General Statutes authorizes the condemnation of land if those desiring to take such property cannot agree with the owner upon the amount to be paid him for any property thus taken. Thus, inability to agree with the owner of property sought to be condemned is a condition precedent to condemnation under the statute. West Hartford v. Talcott, 138 Conn. 82, 89, 82 A.2d 351. Inability to agree may be shown by any testimony evincing that fact. Williams v. Hartford N.H.R. Co., 13 Conn. 397, 409. The condemnor must exhaust all reasonable efforts to obtain the land by agreement. West Hartford v. Talcott, supra. But the law does not require the performance of a useless and futile act. 6 Nichols, Eminent Domain (3d Ed.) 24.62[1], p. 58; see Trinity College v. Hartford, 32 Conn. 452, 481; West Hartford v. Talcott, supra. In seeking to prevent condemnation, the owner of property demonstrates his inability to agree within the meaning of the statute. Trinity College v. Hartford, supra; 6 Nichols, op. cit. 24.622. Darien v. Kavookjian, 151 Conn. 659, 661, 202 A.2d 147, cert. denied, 379 U.S. 840, 85 S.Ct. 77, 13 L.Ed. 46 (1964)." (Internal quotation marks omitted.) Halloran v. North Canaan, 32 Conn.App. 611, 614-15, 630 A.2d 145 (1993).
Using these principles of law, the court is constrained to conclude that in the present case, once the certificate of taking was issued by the court on March 18, 2005, and recorded upon the land records of the City of Meriden, full fee simple title to the property vested in the city; thereby, the proceedings affecting title to the land were closed with an effective judgment in favor of the condemnor. "Upon the recording of [a certificate of taking], title to such property in fee simple shall vest in the municipality, and the right to just compensation shall vest in the persons entitled thereto . . . At that point, the condemnation process has been completed and the property taken under due process of law. The property taken belongs to the condenmor, and the deposit, held by the clerk as stakeholder, belongs to the condemnee." (Citation omitted; internal quotation marks omitted.) Bristol v. Milano, 45 Conn.Sup. 605, 612, 732 A.2d 835 (1998). The city had submitted itself to the jurisdiction of the court solely to procure the certificate of taking necessary to complete the eminent domain process. Once the certificate of taking was issued and recorded, however, the eminent domain case was concluded, and the court's jurisdiction over the matter lapsed. Id. See also Housing Authority v. Charter Oak Terrace/Rice Heights Health Center, Inc., 47 Conn.Sup. 505, 510, 810 A.2d 333 (2002), rev'd on other grounds, 82 Conn.App. 18, 842 A.2d 601 (2004).
B. FAILURE TO MOVE TO OPEN THE JUDGMENT
The Superior Court is a court of general jurisdiction, and, thereby, has subject matter jurisdiction over a condemnation proceeding only insofar as it has jurisdiction over any other judgment. Under the circumstances of this case, the court entered its judgment on March 18, 2005, when the clerk issued the above-described certificate of taking. The record clearly reflects the Mencarini defendants' acknowledgment of the import of the clerk's action on behalf of the court, as they filed the motion for temporary injunction (#106) and made efforts to submit the afore-mentioned appeal and application for review of the statement of compensation (#104) within a short time after the judgment had entered.
The Mencarini defendants did not, however, timely move the court for a review of the judgment, as contemplated by our statutory schemes or by our rules of practice. For instance, the defendants have not sought the succor provided by General Statutes § 52-212a which provides, in pertinent part, that: "[u]nless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed." Practice Book § 17-4(a) establishes the procedure to be followed when moving the court to set aside or to open a judgment: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court."
The parties' contest over the import and effect of the March 18, 2005 certificate of taking unambiguously indicates that they have not agreed to "waive" the provisions of Practice Book § 17-4(a) or to "otherwise submit to the jurisdiction of the court." The Mencarini defendants' arguments concerning the failure of the city to engage in financial negotiations of an appropriate nature may, to some degree, may implicate questions of "mistake" as contemplated by cases in which a judgment was permitted to be opened outside the four-month period to redress inequitable circumstances. See, e.g., Jenks v. Jenks, 232 Conn. 750, 753, 657 A.2d 1107 (1995) (grounds for opening a stipulated judgment after statutory time lapse). Here, however, the Mencarini defendants have not raised a motion to open the judgment based upon such grounds; rather, they claim error in the plaintiff city's methodology of negotiation with regard to determination of the condemnation and process for municipal acquisition of the property, in and of itself. The record clearly establishes that the defendants did not file their motion to dismiss until July 31, 2006, well over a year after the certificate of taking was filed. Thus, even if the motion to dismiss is viewed as a motion to open the judgment, it does not meet the time requirements of General Statutes § 52-212a or Practice Book § 17-43(a), and any such relief as contemplated by Practice Book § 17-4(a) or § 52-212a is, at present, not available to them.
As a practical matter, the court notes that the defendants would be hard-pressed to moved to open the March 18, 2005 judgment on the grounds of fraud, duress or mistake, after expiration of the four-month period contemplated by Practice Book § 17-4(a) or § 52-212a, in view of their pending appeal for compensation (#104) and the request for temporary injunctive relief (#106) that remains pending.
Furthermore, in attempting to defeat the effectiveness of the judgment represented by the clerk's certificate of taking, the Mencarini defendants have failed to effectively utilize the savings provisions of General Statutes § 8-129. That legislation provides the specific method for notifying persons with an interest in property about the condemnation proceedings the municipality has instituted: the legislation further provides a window of opportunity within which the interested persons must inform the court of their contest over jurisdiction, or forever be barred from raising such a claim, upon delivery of notice related to the municipality's planned taking and proposed compensation, as set forth in the letter of notice sent to the Mencarini's by the city on September 29, 2004. Section 8-129 provides, in pertinent part: "Not less than twelve days or more than ninety days after [the] notice and such statement of compensation have been so served or so mailed and first published, the redevelopment agency shall file with the clerk of the superior court a return of notice setting forth the notice given and, upon receipt of such return of notice, such clerk shall, without any delay or continuance of any kind, issue a certificate of taking setting forth the fact of such taking, a description of all the property so taken and the names of the owners and of all other persons having a record interest therein. The redevelopment agency shall cause such certificate of taking to be recorded in the office of the town clerk of each town in which such property is located. Upon the recording of such certificate, title to such property in fee simple shall vest in the municipality, and the right to just compensation shall vest in the persons entitled thereto. At any time after such certificate of taking has been so recorded, the redevelopment agency may repair, operate or insure such property and enter upon such property, and take any action that is proposed with regard to such property by the project area redevelopment plan"
Applying the principles of § 8-129 to the present circumstances, following the delivery of the September 29, 2004 letter concerning the condemnation proceeding, the Mencarini defendants had between twelve and ninety days to come to the court and raise the issue of jurisdiction over the subject matter. At the latest, that period expired in early 2005, prior to the clerk's issuance of the certificate of taking on March 18, 2005. As the city has concisely argued, "[s]ince the defendants failed to raise the issue [of jurisdiction over the subject matter] at that point of the proceedings, they have waived the claim." (#117.) See Ecker v. West Hartford, 205 Conn. 219, 231-33, 530 A.2d 1056 (1987).
This court's conclusion that it lacks jurisdiction to address, in any way, the judgment represented by the March 18, 2005 certificate of taking is consistent with our general principles concerning the finality of judgments. "A judgment is considered final if the rights of the parties are concluded so that further proceedings cannot affect them." Stern v. Allied Van Lines, Inc., 246 Conn. 170, 174, 717 A.2d 195 (1998). "Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest." (Internal quotation marks omitted.) Isaac v. Truck Service, Inc., 253 Conn. 416, 423, 752 A.2d 509 (2000). As the defendants raised no timely claim to contest the court's jurisdiction over the condemnation proceeding, the city was entitled to assume the stability of the judgment represented by the clerk's certificate of taking. In fact, the defendants' use of an alternate means for achieving relief, appealing the amount of compensation at issue, may well represent their tacit acknowledgment that the certificate of taking represented the laying to rest of any controversy concerning the property other than the financial award to which they may have been entitled.
C. ADEQUACY OF THE NEGOTIATION AT ISSUE
In support of or in opposition to the motion to dismiss, both parties have presented argument, accompanied by abundant factual references, apparently derived from issues related to the merits of the underlying condemnation proceeding. Each of these arguments is founded, at least in part, upon the stipulation that the Mencarini defendants received correspondence from the city, on or about September 29, 2004, indicating the city's position and intent with regard to the property at issue. Notwithstanding the representations in that correspondence, which formed the basis for the clerk's issuance of the certificate of taking on March 18, 2005, the city has argued that its superior title to the property in question renders moot any issues pertaining to subject matter jurisdiction, devoting several pages of its Memorandum in Support to this subject. The defendant has urged the court to find that due to questions concerning the actual ownership of the property at issue, only a quiet title action could resolve the dispute. Consideration of either argument presupposes the court's acknowledgment that it has jurisdiction to review a judgment entered on March 18, 2005. This, the court declines to do, for the reasons set forth throughout the remainder of this opinion.
See footnote 3.
The defendants have cited a number of cases in an effort to support their claim that the insufficiency of negotiations regarding the property at issue0 constitutes a failed predicate to the condemnation proceeding; thereby, the defendants argue, the court was deprived of jurisdiction to enter judgment by issuing, through the clerk, the certificate of taking on March 18, 2005. The court has carefully reviewed these references, but finds them to be inapposite under the circumstances of the present case. In Darien v. Kavookjian, supra, the petitioners contested the taking of their property, to be used for school purposes, claiming that a holder of interest in the land at issue had timely presented the municipality with his opposition to the taking. Fairly read, the opinion does not support establishing the jurisdiction of the court over a March 18, 2005 certificate of taking where, as in the present case, the petitioner remained silent after receiving correspondence from the municipality on or about September 29, 2004 constituting due notice of the intended condemnation; nor where he remained silent after receiving the February 2, 2005 statutory notice of the city's eminent domain proceeding. Darien v. Kavookjian reiterates the proposition that a party's opposition to a proposed condemnation should be considered in the course of assessing the propriety of an eminent domain proceeding; however, the opinion presumes that this consideration applies when that opposition is timely voiced. See Darien v. Kavookjian, supra, 151 Conn. 662. Those circumstances are not present in the case before the court.
The court notes that the result in Darien v. Kavookjian was, at least in part, adverse to the interests of the Childs defendants; in that matter, the condemnation was permitted to remain in full force and effect, and the land utilized for school purposes, notwithstanding the voiced opposition to the taking from one of the landowners subject to the eminent domain proceeding. Id., 151 Conn. 660, 661.
Similarly, Halloran v. North Canaan, supra, provides insufficient support for the defendants' claims that the court has jurisdiction to dismiss the certificate of taking issued by the clerk on March 18, 2005. The Halloran plaintiff-landowners unsuccessfully claimed that the town had voted to purchase their property and to use it for sewer installations, without statutorily predicate negotiations, prior to initiating condemnation proceedings. Id., 32 Conn.App. 614. Again, a close review of Halloran v. North Canaan indicates that, unlike the circumstances of the pending case, the plaintiffs had made known their opposition to the taking before the judgment of eminent domain was effectuated. Id., 32 Conn.App. 615-16. As in Darren v. Kavookjian, supra, the Halloran v. North Canaan opinion ratified, rather than overturned the municipal condemnation of the plaintiff's interest in the property at issue. Id.
At oral argument on November 1, 2006, the defendants submitted the trial court's decision in Northeastern Gas Transmission v. Bancroft; 17 Conn.Sup. 247 (1951); as further support for their claims. Again, fairly read, the Northeastern Gas court's logic and reasoning supports this court's conclusion that the defendants effectively submitted to the jurisdiction of the court, notwithstanding any perceived defects in the negotiation process, through their failure to timely respond to the city's September 29, 2004 and/or February 2, 2005 notice of condemnation proceedings. Thus, in1 Northeastern Gas Transmission v. Bancroft, the court focused upon the gas company's absolute failure to show that it had reasonably participated in the negotiation process; the court reached this conclusion based on its numerous findings that the plaintiff had never advised the landowner of any price it would pay for the property at issue. Id., 249-50. As, under those circumstances, the negotiations were insufficient to support the taking of the property, the plaintiff was denied access to the defendant's land. Id., 251. Northeastern Gas Transmission v. Bancroft so differs factually from the present case, however, that its lessons are, at least in part, functionally inapposite: here, there is no contest over the fact that through the September 29, 2004 correspondence, the plaintiff-city made some price-related offer of compensation for the property at issue. Albeit the city offered only a de minimis award, the defendants were put on clear notice of the scope and nature of the condemnor's plans. Standing silent in response to the proffer of a mere nominal sum for their putative interest in the land in question, until the submission of their compensation appeal on June 2, 2005, (#104), the defendants tacitly indicated their approval of the proffered compensation. Thus, the reference to Northeastern Gas Transmission v. Bancroft cannot save the defendants' motion to dismiss.
Finally, the defendants further rely on the venerable precepts of West Hartford v. Talcott, supra, for their proposition that the court has jurisdiction to dismiss the March 18, 2005 certificate of taking, due to the city's alleged failure to engage in an appropriate degree of negotiations with them, prior to the condemnation. Fairly read in the context of the present case, that opinion once again fails to establish any cognizable basis for this court's acceptance of jurisdiction to review a judgment entered on March 18, 2005 based on a putative violation of the letter or spirit of § 48-12. As a general rule, in eminent domain proceedings, "[i]t is incumbent upon the condemnor to exhaust `all reasonable efforts to obtain the land it desires, by agreement." New York, N.H. H.R.R. Co. v. Long, 69 Conn. 424, 438, 37 A. 1070 (1897); West Hartford v. Talcott, [ supra, 138 Conn. 89]. The authority to condemn is to be strictly construed in favor of the owner and against the condemnor. State v. McCook, 109 Conn. 621, 630, 147 A. 126 (1929). The [taking] statute, however, `should be enforced in such a way as to effectuate the purpose for which it was enacted.' (Internal quotation marks omitted.) West Hartford v. Talcott, supra, 90; Crawford v. Bridgeport, 92 Conn. 431, 435, 103 A. 125 (1918)." Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 601-02, 790 A.2d 1178 (2002). Under the circumstances of this case, given the defendant's long delay in raising their concerns over the condemnation process through which land to which they claimed ownership would be taken by eminent domain, it would strain the clear language of § 48-12 to allow the defendants to now come forward and implicate the court's jurisdiction to address the sufficiency of negotiations pre-dating the issuance of the certificate of taking. Again then, the lessons of West Hartford v. Talcott do not preserve the defendants' access to the court on the issue at hand.2
For all these reasons, the court is constrained to forgo considering the merits of the Mencarini defendants' claim as to the sufficiency of the negotiations represented by the city's correspondence dated September 29, 2004 (Exhibit 1). Assuming, however, that there is previously unidentified basis in law or in fact that establishes the court's present authority to address this issue, the defendants' motion to dismiss must still fail. The Mencarini defendants have provided no legal framework, through common law precedent or statutory enactment, upon which the court could reasonably attempt to measure the adequacy of the city's negotiations with regard to the property at issue. They have, however, submitted an appeal to the court in an effort to test the accuracy of the amount of compensation tendered by the city through the eminent domain proceedings, thereby utilizing the appropriate, available mechanism for securing the court's condonation of the financial award to which they are due. In the absence of authority to the contrary, the court reasonably and logically concludes that the Mencarini defendants had due notice of the nature or extent of the negotiations tendered by the city, through the correspondence of September 29, 2004; that the Mencarini defendants elected not to contest the nature or extent of the negotiations in a timely manner; and that the Mencarini defendants caused, allowed, or permitted the city to continue the condemnation proceedings in fair reliance upon their silence in response to that correspondence. Under the totality of the circumstances in this case, then, if called upon to do so, the court concludes that the negotiations in which the parties effectively engaged concerning the property and the condemnation proceedings during the fall of 2004 were sufficient. See Halloran v. North Canaan, supra, 32 Conn.App. 614-15. Accordingly, this argument as well fails to support the Mencarini defendants' motion to dismiss, so that they cannot here prevail.
III. CONCLUSION
As previously discussed, once the issue has been brought before the court, "the plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fort Trumbull Conservancy, LLC v. New London, supra, 265 Conn. 430 n. 12. The plaintiff city has done so, in this case, by explicit reference to the adequacy of the procedures employed by the clerk in issuing the March 18, 2005 certificate of taking, and by identification of the limited, and expired, time periods within which the defendants could properly have attacked the court's jurisdiction over the condemnation. Here, where a judgment entered in March 2005 is at issue, and "[w]here a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." Olympia Mortgage Corp. v. Klein, supra, 61 Conn.App. 307.3
At oral argument, the city raised the issue of equitable laches in connection with the defendants' delay in requesting the court to address issues related to jurisdiction over the March 18, 2005 certificate of taking. Upon review and in view of the statutory and practice book time frames addressing the schedule for raising jurisdictional issues, and because the city has cited no treatise, common law or statutory authority for the proposition that laches applies under the circumstances of this case, the court declines to further address the issue.
This precept has been strictly adhered to when scrutinizing the submissions of the city, favoring lack of jurisdiction to dismiss a long-ago court action, and when similarly scrutinizing the Mencarini defendants' submissions, favoring a finding that the court is vested with jurisdiction to dismiss the March 18, 2005 certificate of taking. Despite the sincerity of their arguments, the defendants have pointed to no authority, and the court has been unable to find any, supporting the proposition that a motion to dismiss based on lack of subject matter jurisdiction over a condemnation proceeding, which motion to dismiss is filed some sixteen months after the certificate of taking was filed, and which challenges the correctness of the process to be followed prior to the filing of that certificate, divests this court of subject matter jurisdiction.
WHEREFORE, for the foregoing reasons, the court finds the issues in favor of the city, and therefore DENIES the Mencarini defendants' motion to dismiss (#110), while SUSTAINING the plaintiff-city's objection thereto (#116).