Kucej v. Town Clerk
Kucej v. Town Clerk
Opinion of the Court
In this declaratory judgment action, the plaintiffs
The following facts are necessary for the resolution of this appeal. On June 23, 1993, the plaintiffs applied to the board for a variance for their property located at 1011 Fairfield Beach Road in the town of Fairfield.
On July 29, 1993, the plaintiffs filed this action in the Superior Court seeking to void the board’s decision, which partially denied their request for a variance. The plaintiffs claimed that notice of the public hearing was improper and contradictory and, thus, deprived them of due process of law. On April 26, 1993, the trial court issued a memorandum of decision in which it found that the plaintiffs had abandoned the issue of whether the notice was improper due to the plaintiffs’ failure to brief that issue.
We initially note that the relief sought by the plaintiffs, as stated in their complaint, is for “[a]n order declaring the decision rendered by the defendant board be declared null and void.” Neither the phrase “declaratory judgment” nor the phrase “declaratory relief” appears in the complaint; we nonetheless conclude that the language used in the complaint is sufficient to be treated as alleging that the plaintiffs sought a declaratory judgment. See Beit v. Beit, 135 Conn. 195, 202, 63 A.2d 161 (1948). The plaintiffs’ complaint, therefore, invokes the declaratory judgment provision of General Statutes § 52-29,
General Statutes § 52-29 (a) permits the Superior-Court to “declare rights and other legal relations.” In order for a trial court to have jurisdiction over a declaratory judgment action, the notice requirements of Practice Book § 390 (d) must be satisfied. Mannweiler v. LaFlamme, supra, 232 Conn. 32.
This conclusion, however, does not necessarily require a dismissal of the plaintiffs’ action. “A jurisdictional defect relating to notice can be remedied in any of the ways noted in Connecticut Ins. Guaranty Assn. v. Raymark Corporation, [215 Conn. 224, 230, 575 A.2d 693 (1990)].” Serrani v. Board of Ethics, 225 Conn. 305, 309, 622 A.2d 1009 (1993). On remand, the plaintiffs may take appropriate action to cure the jurisdictional defect regarding the notice requirement. Mannweiller v. LaFlamme, supra, 232 Conn. 36.
The only pleading before the trial court was the complaint. There is no answer, special defense or counterclaim and the record is devoid of any of the standard pleadings as provided by Practice Book § 112. “The proposition that the pleadings frame the issues before a trial court is well established in our caselaw.” Doublewal Corp. v. Toffolon, 195 Conn. 384, 390, 488 A.2d 444 (1985). In order properly to adjudicate a case, “a trial court must have, ‘[b]esides jurisdiction of the person of the defendant and of the general subject-matter of the action . . . jurisdiction of the precise question which its judgment assumes to decide, or of the particular remedy or relief which it assumes to grant.’ ” Id., quoting 1 Black, Judgments (2d Ed. 1902) § 242; New Haven Sand Blast Co. v. Dreisbach, 104 Conn. 322, 329-30, 133 A. 99 (1926); Case v. Bush, 93 Conn. 550, 552-53, 106 A. 822 (1919).
The issues in this case have not been joined and the case was not ready for final judgment when the trial
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
The plaintiffs in this appeal are John C. Kucej and Joanne L. Kucej.
The defendants in this appeal are the town clerk of the town of Fairfield, the zoning board of appeals of the town of Fairfield, and George W. Ganim, an adjoining property owner.
Upon review of the record, we are unable to determine the date on which the board posted notice on the plaintiffs’ property.
In its memorandum of decision, the trial court noted that “the only evidence offered was that the plaintiffs are the owners of the property involved in this action.”
The plaintiffs also filed a separate administrative appeal from the decision issued by the board on the plaintiffs’ variance application.
General Statutes § 8-7 provides in pertinent part: “Notice of the time and place of such hearing shall be published in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days before such hearing. . . .”
General Statutes 8 52-29 (a) provides: “The superior court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.”
Practice Book 8 389 provides: “The court will, in cases not herein expected, render declaratory judgments as to the existence or nonexistence (a) of any right, power, privilege or immunity; or (b) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future.”
Practice Book § 390 provides in pertinent part: “The court will not render declaratory judgments upon the complaint of any person . . . (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”
Reference
- Full Case Name
- JOHN C. KUCEJ v. TOWN CLERK OF THE TOWN OF FAIRFIELD
- Cited By
- 2 cases
- Status
- Published