Tayco Corp. v. Planning and Zoning Com'n

• Decision Date: 02 February 2010
• Docket Number: No. 18319.,18319.
• Citation: 986 A.2d 290,294 Conn. 673
• Parties: TAYCO CORPORATION et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF WALLINGFORD.
• Court: Connecticut Supreme Court

986 A.2d 290

294 Conn. 673

TAYCO CORPORATION et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF WALLINGFORD.

No. 18319.

Supreme Court of Connecticut.

Argued September 9, 2009.

Decided February 2, 2010.

Gerald E. Farrell, Sr., assistant town attorney, for the appellant (defendant).

Timothy J. Lee, for the appellees (plaintiffs).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, ZARELLA and McLACHLAN, Js.

McLACHLAN, J.

Pursuant to General Statutes § 52-593a(a),¹ a cause of action is not lost because of the expiration of a statute of limitations if process is personally delivered to a state marshal who thereafter effectuates service within thirty days of its delivery. This appeal² requires us to determine whether an action can be saved pursuant to § 52-593a(a) when a party delivers the process to be served to a marshal within the applicable limitations period but then instructs the marshal to refrain from serving the process for several days. The defendant, the planning and zoning commission of the town of Wallingford, appeals from the judgment of the trial court sustaining the appeal of the plaintiffs, Tayco Corporation and Perry Taylor, from the defendant's imposition of certain conditions on a zoning permit issued to the plaintiffs. The defendant claims, inter alia,³ that the court improperly denied its motion to dismiss the appeal for lack of subject matter jurisdiction on the ground that the plaintiffs had failed to commence and serve their appeal within fifteen days of the published notice of the decision of the defendant pursuant to General Statutes (Rev. to 2005) § 8-8.⁴ Because we conclude that a cause of action is saved pursuant to § 52-593a(a) only when a plaintiff authorizes the marshal, within the applicable statute of limitations, to serve process, we reverse in part the judgment of the trial court.

The plaintiffs are the owners of property located at 400 Washington Street⁵ in Wallingford, on which they maintain a sand and gravel mine. A dispute arose as to the plaintiffs' permitted use and, on May 31, 2005, the plaintiffs filed an application for a special permit to continue their preexisting use of the property. Following public hearings, the application was approved on November 16, 2005, subject to certain enumerated conditions. Notice of the decision was published on November 19, 2005. The plaintiffs appealed, challenging the imposition of the conditions on the special permit.

The defendant filed a motion to dismiss on January 10, 2006, in which it argued that the plaintiffs had failed to file and serve their appeal by December 5, 2005,⁶ within fifteen days of the published notice of the defendant's decision as required by § 8-8(b). At the hearing on the motion to dismiss, the state marshal, Neil Longobardi, testified that on December 2, 2005, before the expiration of the appeal period, he picked up the appeal at the office of plaintiffs' counsel, who instructed him not to serve it and to wait until further notice or further instruction. Longobardi also testified that he subsequently served the appeal on the defendant on December 8, 2005, three days after the expiration of the appeal period. Longobardi did not testify as to when the plaintiffs' attorney contacted him to instruct him to go forward with the service.

Following Longobardi's testimony, the defendant argued that in order for an action to be saved pursuant to § 52-593a(a), the marshal must have been given process with instruction to serve it because the statute is intended to save actions served beyond the statute of limitations due to the marshal's error, not due to lateness or indecision on behalf of the appealing party.⁷ The plaintiffs responded that § 52-593a(a) requires only that the party deliver process to the marshal prior to the expiration of the statute of limitations and that the marshal serve the process within thirty days of that delivery, regardless of the intention of the attorney at the time of delivery.

In its memorandum of decision denying the defendant's motion, the trial court, Corradino, J., first rejected the defendant's claim that § 52-593a(a) requires that the party who delivers process to the marshal must intend that the marshal serve it immediately in order for the savings clause to have effect. Such a requirement, the court stated, would lead to a difficult inquiry into what the individual delivering process to the marshal said or intended in his or her instruction regarding the timing of service of process. The court then stated that, due to the ameliorative nature of § 52-593a(a), the interests of an attorney who may need additional research time prior to commencing a complaint or appeal should be taken into consideration. The court concluded that, more importantly, § 52-593a(a) does not state that the delivery of process to the marshal must be accompanied by a request for immediate service. Subsequently, on November 6, 2005, the court, Hon. Howard F. Zoarski, judge trial referee, sustained the plaintiffs' appeal and voided the conditions on the special permit. This appeal followed.

The defendant claims that the court improperly concluded that the plaintiffs' appeal could be saved pursuant to § 52-593a(a).⁸ Specifically, the defendant contends that the legislature did not intend for § 52-593a(a) to save an action, when, as in the present case, a party delivered the process to the marshal with instruction not to serve it until further notice. The thrust of the defendant's argument is that if a party delivers the process to the marshal within the limitations period but fails to instruct the marshal simultaneously to serve process, the party should lose the protection of § 52-593a(a). Thus, the defendant appears to argue that if a party does not instruct the marshal, within the limitations period, to make service, whether the marshal serves the process within thirty days of receiving it is irrelevant. The plaintiffs contend that because the process was in the hands of the marshal within the statute of limitations and ultimately was served on the defendant within the additional time allowed by § 52-593a(a), the appeal was timely. We agree with the defendant.

"The standard of review for a court's decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. ... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo." (Internal quotation marks omitted.) Paradigm Contract Management Co. v. St. Paul Fire & Marine Ins. Co., 293 Conn. 569, 575, 979 A.2d 1041 (2009). The issue in this case, namely, whether the court properly concluded that the plaintiffs' appeal was timely pursuant to the savings provision in § 52-593a, is one of statutory construction, and is therefore a question of law over which we employ plenary review. Fairchild Heights, Inc. v. Amaro, 293 Conn. 1, 8, 976 A.2d 668 (2009). "The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply....

"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. ... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Id., at 8-9, 976 A.2d 668.

Section 52-593a(a) provides in relevant part: "[A] cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery."

The parties agree that the process to be served must be delivered to the marshal prior to the expiration of the limitations period. The defendant argues that for § 52-593a(a) to apply, the process to be served must be delivered to the marshal with instruction to serve it. In response, the plaintiffs claim that literal compliance with § 52-593a(a) is achieved when the process is: (1) physically delivered to the marshal within the limitations period; and (2) served within thirty days of that delivery. Although the parties do not dispute that delivery of process to the marshal must take place prior to the expiration of the relevant statute of limitations, consideration of this issue is helpful to our resolution of the question before us.

Section 52-593a(a) does not specify that the process must be delivered to the marshal within the relevant statute of limitations. Nor does it, as the trial court noted, provide that the process must be delivered to the marshal with instruction to serve it immediately. The only delivery requirement included in the plain language of § 52-593a(a) is that process is "personally delivered to a state marshal authorized to serve the process...." Because we presume that the legislature has created a harmonious body of law, we look to related provisions as part of our statutory construction. State v. Fernando A., 294 Conn. 1, 21, 981 A.2d 427 (2009). In the present case, we need not look far, because the language in §...