DocketNumber: No. CV 94 0065554
Citation Numbers: 1994 Conn. Super. Ct. 10504
Judges: PICKETT, J.
Filed Date: 10/14/1994
Status: Non-Precedential
Modified Date: 4/18/2021
In February 1994, the plaintiff appealed the 1992 Grand List assessment of his property to the town's Board of Tax Review. The tax assessors had valued the total property at $536,550.00. On March 23, 1994, the Thomaston Town Board of Tax Review voted to reduce the assessment to $450,000.00.
On July 15, 1994, the plaintiff filed a complaint against the Thomaston Town Board of Tax Review, alleging in a single count that the valuation of the property by the defendant was, inter alia, grossly excessive, disproportionate and unlawful. The sheriff served the complaint on the Town Clerk on May 19, 1994. The complaint consisted of a Civil Summons Form (JD-CV-1), an Appeal from Board of Tax Review and a Statement re: Amount in Demand. The return date was set for June 28, 1994.
On August 9, 1994, the defendant filed a motion to dismiss the complaint for lack of subject matter jurisdiction. This motion cited three grounds for dismissing the appeal: the plaintiff did not file a bond or recognizance with surety, the plaintiff used the improper citation form, and the appeal was filed beyond the statutory deadline.
The motion to dismiss is provided for in Practice Book §§ 142-146, and is the proper manner by which to assert lack of jurisdiction over the subject matter. Practice Book § 143. "Although every presumption is to be indulged in favor of jurisdiction"; LeConche v. Elligers,
The defendant first argues that the plaintiff has failed to comply with a statutory condition to bring an appeal, in that he did not provide a bond or recognizance with surety. General Statutes §
"Although the giving of a proper bond or recognizance is an essential element in the taking of an appeal; . . . a statutory provision requiring such a bond is solely for the benefit of a defendant. . . . The plaintiffs' failure to provide a proper bond or recognizance was a serious irregularity, but it did not destroy the jurisdiction of the court over the subject matter of the action. . . ." (Citations omitted.) Sheehan v. ZoningCommission,
Although the time in which the plaintiff can amend his complaint has expired, the plaintiff should be given an opportunity to comply with the technical requirements of the statute.1 The Superior Court has granted a town's motion to dismiss for failure to submit a bond or recognizance with surety unless the plaintiff filed the necessary bond or recognizance within two weeks. Wilson v. Town of West Hartford,
The defendant's second argument for the court's lack of subject matter jurisdiction is that the defendant used the wrong citation form. The Practice Book states "[f]orm in JD-CV-1 shall not be used in the following actions and proceedings: . . . (4) Administrative appeals." Practice Book § 49. The plaintiff CT Page 10507 used Form JD-CV-1 to commence this appeal. In its memorandum of law in support of its motion to dismiss, the defendant argues that this defect deprives the court of subject matter jurisdiction.
"Absent an affirmative showing of prejudice by the defendant . . . we conclude that the mistaken use of Form 103.1 (JD-CV-1) does not warrant the dismissal of an administrative appeal." (Citations omitted.) Chestnut Realty, Inc. v. Commissionon Human Rights and Opportunities,
The defendant has not claimed to have suffered any prejudice because the plaintiff mistakenly used Form 103.1 (JD-CV-1). In accordance with the holding in Chestnut Realty, this court maintain subject matter jurisdiction to entertain the plaintiff's appeal.2
The defendant's third argument that this court lacks subject matter jurisdiction is that the appeal was filed beyond the statutory requirement. In its memorandum of law in support of its motion to dismiss, the defendant suggests that the plaintiff should have appealed the 1992 assessment to the Board of Tax Review in 1993.
General Statutes §
The court, "in deciding a motion to dismiss, must consider the allegations of the complaint in their most favorable light." (Citation omitted; internal quotation marks omitted.) Savage v.Aronson,
Accordingly, the motion to dismiss for lack of subject matter jurisdiction is denied.
PICKETT, J.