City of Bridgeport v. Debek

• Decision Date: 21 February 1989
• Docket Number: No. 13454,13454
• Citation: 554 A.2d 728,210 Conn. 175
• Parties: CITY OF BRIDGEPORT v. Allan C. DEBEK, Administrator (ESTATE OF Anthony E. DEBEK), et al.
• Court: Connecticut Supreme Court

Page 728

554 A.2d 728

210 Conn. 175

CITY OF BRIDGEPORT v. Allan C. DEBEK, Administrator (ESTATE OF Anthony E. DEBEK), et al.

No. 13454.

Supreme Court of Connecticut.

Argued Dec. 6, 1988.

Decided Feb. 21, 1989.

Ira B. Charmoy, with whom, on the brief, was James M. Nugent, Bridgeport, for appellants (named defendant et al.).

Mark S. Shipman, with whom were Leonard M. Bieringer, Robert A. Randich and, on the brief, Samuel D. Chester, Hartford, for appellee (plaintiff).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and COVELLO, JJ.

PETERS, Chief Judge.

Section 11f of the Bankruptcy Act of 1898; then 11 U.S.C. § 29f, provided for the suspension of the operation of any state statute of limitations during the pendency of bankruptcy proceedings. ¹ The dispositive issue in this appeal is whether General Statutes § 12-175 ² is a statute of limitations for the purposes of § 11f.

The plaintiff, the city of Bridgeport, commenced this tax lien foreclosure action in October, 1981, in order to foreclose tax liens filed in the period from 1968 to 1981 for municipal real property taxes for property on the Bridgeport grand lists for the years 1966 to 1979. On April 22, 1987, the trial court granted in part the plaintiff's motion for summary judgment with regard to the liens filed from 1972 to 1981. On January 11, 1988, the trial court found that the liens filed from 1968 to 1971 were also valid and, therefore, denied the defendants' motion to dismiss the action. On January 12, 1988, the trial court rendered a judgment of strict foreclosure and found that the total due for all the tax liens was $1,270,622.26. The defendants filed this appeal in the Appellate Court on January 29, 1988. We transferred it here pursuant to Practice Book § 4023. We find no error.

The underlying facts are not in dispute. Anthony E. Debek owned real property located at 1315-1357 Main Street in Bridgeport on which no municipal real estate taxes have been paid since June, 1967. Tax liens were filed with respect to these delinquencies each year. An involuntary bankruptcy action was filed against Debek on June 6, 1975. Debek died shortly thereafter and his son, the defendant Allan C. Debek, was appointed administrator of his estate. On October 1, 1981, the United States Bankruptcy Court granted the plaintiff relief from the automatic stay of other court proceedings that had been imposed upon the bankrupt estate.

The plaintiff thereupon instituted an action to foreclose the tax liens filed for the years 1966 to 1981 against the defendants Allan C. Debek, Marlene Debek, Todd J. Debek and Margaret Debek, and other parties not involved in the present appeal. On October 30, 1981, the plaintiff delivered the foreclosure complaint and summons to a deputy sheriff, who served each of the defendants involved in this appeal on November 11, 1981. The sheriff failed to make timely service on some defendants not involved in this appeal. None of the defendants filed a motion to dismiss because of insufficiency of service within thirty days of filing an appearance in the case.

The trial court granted the plaintiff's motions for summary judgment over the defendants' objection that the ten year statute of limitations contained in General Statutes § 12-175 barred this action. The court concluded, furthermore, that the sheriff's delay in serving some of the parties originally named in the complaint had not deprived the court of subject matter jurisdiction.

The defendants raise four claims of error. ³ They claim that the trial court erred: (1) in ruling that only those parties not served within the requisite time period had standing to raise a claim of insufficient service of process; (2) in concluding that General Statutes § 12-175 is a statute of limitations whose operation may be extended; (3) in determining that bankruptcy law suspended the operation of the statute of limitations; and (4) consequently in determining that the total tax liens due and owing include the liens for 1966 to 1971. We find no error.

I

We must first consider the defendants' claim that the trial court lacked subject matter jurisdiction to entertain the plaintiff's foreclosure action because of the plaintiff's failure to serve all the defendants within fifteen days as required by General Statutes § 52-592. The trial court held that the defective service of process in this case implicated only the court's in personam jurisdiction, and thus that the defendants who had been properly served could not prevail on their belated attempt to raise defective service as a defense. Only the defendants who were properly served are parties to this appeal.

The resolution of this issue presents no factual issues. The record fully substantiates the untimely service on some of the defendants, and the complaint about this defect by the remaining defendants, whose own service was entirely proper. ⁴

The only issue therefore is whether the trial court correctly concluded that the sheriff's failure to effect proper service on some defendants did not deprive the court of subject matter jurisdiction. We agree with the trial court. Our precedents make it abundantly clear that, except in the special circumstances of administrative appeals, defects in process do not deprive a court of subject matter jurisdiction. Only last year we reiterated that " '[j]urisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court.... 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 added.) Castro v. Viera, 207 Conn. 420, 433-34, 541 A.2d 1216 (1988). The Superior Court lacks subject matter jurisdiction only if it has no competence to entertain the action before it. Meinket v. Levinson, 193 Conn. 110, 115, 474 A.2d 454 (1984); Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 559, 468 A.2d 1230 (1983); Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979); 1 Restatement (Second), Judgments (1982) § 11. "Unlike subject matter jurisdiction ... personal jurisdiction may be created through consent or waiver." United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985); see also Insurance Corporation of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 703-704, 102 S.Ct. 2099, 2104-2105, 72 L.Ed.2d 492 (1982). The trial court therefore had the jurisdiction to consider this case on its merits.

II

The defendants' remaining three claims are actually three aspects of a single claim that the tax liens filed in the years 1968 to 1971 are invalid and unenforceable because no foreclosure action was brought within the ten year limit stipulated by General Statutes § 12-175. ⁵ The plaintiff and the defendants disagree about whether, pursuant to § 11f of the Bankruptcy Act, Anthony Debek's intervening bankruptcy operated to toll the running of this statute. We agree with the plaintiff that the statute was tolled by the Bankruptcy Act.

The defendants contend that § 11f did not toll the running of the time period allowed by § 12-175 because, in their view, the time limitation that our statute provides is not a statute of limitations. Under § 12-175, "any tax lien ... recorded ... for more than ten years shall be invalid ... unless an action of foreclosure has been commenced during such period of ten years...." The defendants urge us to construe this language as manifesting the intention of our legislature to establish time constraints that operate as a condition on the enforcement of a substantive right, as a limitation on the underlying liability, rather than as a statute of limitations that merely affects the applicable remedy. They claim that § 12-175 is analogous to other statutes whose time constraints we have construed as a limitation on the underlying liability, such as our mechanic's lien statute, General Statutes § 49-39; ⁶ Diamond National Corporation v. Dwelle, 164 Conn. 540, 543, 325 A.2d 259 (1973); see Matter of Reardon, 10 B.R. 697, 700 (Bkrtcy.D.Conn.1981); and our wrongful death statute, General Statutes § 52-555. ⁷ Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987). The defendants also note that a federal court has construed a time limitation in the Washington mechanic's lien statute to fall outside of the suspension provisions of § 11f. In re Warren, 192 F.Supp. 801, 803 (W.D.Wash.1961).

The defendants may well be right that, for some purposes, § 12-175 is so intimately connected with the statutory creation of municipal tax liens in General Statutes § 12-172 ⁸ that the time limitations it contains should be construed as substantive limitations on the rights conferred rather than as procedural limitations on available remedies. If that is the appropriate characterization of the statute, then as "a limitation upon the right of action it must be strictly complied with." DeMartino v. Siemon, 90 Conn. 527, 529, 97 A. 765 (1916). The question before us, however, is not what effect to give to § 12-175 under ordinary commercial circumstances. We must decide instead how this statute fits into the prescriptions of the federal law of bankruptcy.

Our analysis of this issue must start with the recognition that, because of the plenary power over bankruptcy that the United States constitution grants to the federal government; U.S. Const., art. 1, § 8, cl. 4; ⁹ Congress unquestionably had the power to provide that the filing of a bankruptcy petition tolls time limitations such as those provided by § 12-175. To the extent a state statute and the Bankruptcy Act conflict, the latter governs. Marine Harbor Properties, Inc. v. Manufacturers Trust Co., 317 U.S. 78, 83, 63 S.Ct. 93, 96, 87 L.Ed. 64, reh. denied, 317 U.S. 710, 63 S.Ct. 254, 87 L.Ed. 566 (1942); Kalb v....