Opinion
No. CV 09 6002503 S
May 6, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#112)
The plaintiff, City of Bristol, brought this action in four counts to foreclose tax liens on real property owned by the defendant, Consumers Federal Credit Union, which had obtained the property via a deed in lieu of foreclosure from the previous owner. The defendant now moves to dismiss count four wherein the plaintiff seeks to enforce a lien existing pursuant to General Statutes § 12-169b. The motion to dismiss is based on "lack of subject matter jurisdiction" because the plaintiff failed to give notice to the defendant pursuant to General Statutes § 7-148gg.
"Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong." Shea v. First Federal Savings Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981). The purpose of a motion to dismiss is to attack "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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983). In considering a motion to dismiss, "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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
"[I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 417, 797 A.2d 494 (2002). Accordingly, Connecticut courts "require a clear showing of legislative intent that a failure to comply with a particular statutory requirement deprives the court of subject matter jurisdiction . . . Indeed, although mandatory language may be an indication that the legislature intended . . . [for the] requirement to be jurisdictional, such language alone does not overcome the strong presumption of jurisdiction, nor does such language alone prove strong legislative intent to create a jurisdictional bar." (Citation omitted; internal quotation marks omitted.) Fedus v. Planning and Zoning Commission, 278 Conn. 751, 779, 900 A.2d 1 (2006).
In its complaint, the plaintiff alleges simply that it has a lien on the property pursuant to § 12-169b in the amount of $16,840.48 for, inter alia, demolition costs. General Statutes § 12-169b provides in relevant part: "If a municipality does not file a lien under any provisions of the general statutes to recover costs for the inspection, repair, demolition, removal or other disposition of any real estate in order to secure such real estate or to make it safe and sanitary . . . then such municipality may assess the amount of such costs against the real estate upon which such cost was incurred . . . Any amount added to the assessment under this section shall constitute a lien upon the real estate against for which the amount was imposed from the date such amount was due."
Section 7-148gg provides: "Each municipality, in addition to any other notice required under the general statutes or any municipal health, housing or safety codes or regulations, shall simultaneously send to each lien holder of real estate a copy of any notice or order by such municipality to the owner of such real estate to demolish, remove or otherwise dispose of the real estate or to make it safe and sanitary issued under any provision of the general statutes or any municipal building, health or safety codes or regulations as well as a copy of any notice sent to the owner of such real estate or recorded on the land record, with respect to any costs or expenses incurred by the municipality to demolish, remove or otherwise dispose of the real estate or to make it safe and sanitary. The municipality shall make reasonable efforts to send such copy by first class mail to the lienholder's current or last-known address."
It is undisputed that the plaintiff did not send the defendant a copy of any order or notice with respect to any costs or expenses incurred by the plaintiff for demolition, but it is unclear from the record what or whether any notice was, in fact, sent to the owner, which would thereby trigger compliance with § 7-148gg. By contrast, the record on this issue was clear in Ansonia v. Zelanin, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 08 5006828 (July 23, 2009, Moran, J.T.R.) ( 48 Conn. L. Rptr. 307). In that case, the lienholder submitted a "Notice of Blight Violations" and established that it was sent to the property owner by the municipality. Id. The municipality then admitted it had not sent a copy to the lienholder. Id.
This motion to dismiss must be denied because it is based on lack of subject matter jurisdiction. There is nothing in the pleadings, the record or the statutes to indicate that the legislature intended to deprive the court of the power to hear and determine cases of the general class to which the proceedings in question belong, that is, foreclosure of property tax liens, on account of a violation of § 7-148gg. In other words, there is nothing in the language or legislative history of § 7-148gg that suggests that the notice requirement was intended to be a subject matter jurisdictional requirement. Cf. LeConche v. Elligers, 215 Conn. 701, 709-13, 579 A.2d 1 (1990) (holding that there was no indication that legislature intended violation of good faith certificate requirement of General Statutes (Rev. to 1987) § 52-190a to be jurisdictional defect). What remedy, statutory or otherwise, is available to the defendant for the plaintiff's failure to comply with the statutory directive of § 7-148gg is not now before the court.