L. G. DeFelice & Son, Inc. v. Town of Wethersfield

• Decision Date: 21 January 1975
• Citation: 356 A.2d 144,167 Conn. 509
• Court: Connecticut Supreme Court
• Parties: L. G. DeFELICE & SON, INC. v. TOWN OF WETHERSFIELD.

Page 144

356 A.2d 144

167 Conn. 509

L. G. DeFELICE & SON, INC. v. TOWN OF WETHERSFIELD.

Supreme Court of Connecticut.

Jan. 21, 1975.

William T. Shea, with whom was Kerry A. Cook, Meriden, for appellant (plaintiff).

Donald J. Garvey, Hartford, for appellee (defendant).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

MacDONALD, Associate Justice.

The plaintiff has appealed from a judgment of the Court of Common Pleas denying its claims for relief in an action against the defendant, the town of Wethersfield, wherein the plaintiff sought relief against a claimed wrongful and excessive taxation of personal property during the tax year beginning September 1, 1968.

In its complaint dated August 14, 1970, the plaintiff asked in its first count, that the assessment against its property be stricken on the basis of a claim that it was not the owner of the property in question at the time of the assessment. In the second count the plaintiff, pursuant to the provisions of § 12-119 ¹ of the General Statutes, sought a reduction of the assessment as manifestly excessive. The defendant town filed an answer to the plaintiff's complaint and did not raise in its pleadings the issue of the one-year time limitation imposed by § 12-119 upon applications brought thereunder to reduce manifestly excessive assessments. The trial court, on its own motion, raised the time limitation issue and ruled that the plaintiff had failed to bring its action within the time period contained therein. ²

The sole question presented is whether, in an action brought pursuant to § 12-119, a defense based upon a statute of limitations must be pleaded by the party claiming protection thereunder, or whether the trial court, of its own motion, may dismiss an action for lack of compliance with the particular statute of limitations herein involved. We recently had occasion to discuss this issue in Diamond National Corporation v. Dwelle, 164 Conn. 540, 325 A.2d 259, where within the context of an action to enforce a mechanic's lien, we stated (164 Conn. pp. 546, 547, 325 A.2d p. 263): 'Generally, 'limitations on actions . . . are considered procedural or personal and thus subject to waiver. . . . This is so because it is considered that the limitation merely acts as a bar to a remedy otherwise available. . . . Such is not considered to be the case, however, where a specific limitation is contained in the statute which establishes the remedy. Here the remedy exists only during the prescribed period and not thereafter. . . . In such situations the statute of limitations is considered substantive or jurisdictional rather than procedural or personal (emphasis added).' . . . Since the expiration of the cause of action is jurisdictional, the court could properly raise the question of jurisdiction on its own motion. Lewis v. Rosen, 149 Conn. 734, 735, 181 A.2d 592.'

In Hillier v. East Hartford, 167 Conn. 100, 105, 355 A.2d 1 we extended the Diamond National rationable to tort actions brought against municipalities pursuant to § 13a-149 of the General Statutes, where the plaintiff had failed to notify the municipality within the time limits prescribed by § 13a-149.

Integral to the application of Diamond National to the present case, however, is a determination as to whether the right of action raised in the second count of the plaintiff's complaint existed at common law, independent of § 12-119. As we stated in Diamond National (164 Conn. p. 543, 325 A.2d p. 261): "The general rule is that, where a statute gives a right of action which did not exist at common law and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right; it is a limitation of the liability itself as created, and not of the remedy alone.' DeMartino v. Siemon, 90 Conn. 527, 528, 97 A. 765.'

Clearly, the right of action involved here did exist at common law. In Connecticut Light & Power Co. v. Oxford, 101 Conn. 383, 126 A. 1, this court discussed this specific issue with regard to a predecessor of § 12-119, stating (pp. 391-392, 126 A. p. 4): 'We have held heretofore that the remedy by appeal from the action of a board of relief is not exclusive, and that the tax may be paid and an action brought to recover it as money illegally received and retained, and that in extreme cases an injunction may be granted restraining the collection of the tax. ....