Opinion
HHBCV176037372S
04-05-2018
DAVID J. GESIAK, LLC aka David J. Gesiak v. BOARD OF ASSESSMENT APPEALS, TOWN OF COLCHESTER
UNPUBLISHED OPINION
OPINION
Arnold W. Aronson, Judge Trial Referee
The plaintiff, David J. Gesiak, LLC a/k/a David J. Gesiak (Gesiak) brings this two-count tax appeal against the Board of Assessment Appeals, town of Colchester (town) in two counts claiming " excessive valuation" in count one and " unlawful transfer of personal property assessment account from proper municipality" in count two.
The town filed a motion to dismiss on the grounds that the plaintiff failed to: 1) file a tax appeal in the correct venue, and (2) name the town as a necessary party.
Subsequent to the filing of this appeal, the town filed a motion to compel (# 103) claiming that the plaintiff had failed to file a reply to the town’s discovery request in response to the town’s service of interrogatories and requests for production of documents, dated May 25, 2017.
On September 12, 2017, the plaintiff filed a motion for protective order (# 106) seeking to prevent the town from conducting an audit until further order of the court.
The plaintiff recited in its summons and complaint that the plaintiff was appealing from " the action of the Board of Assessment Appeals of the TOWN OF COLCHESTER." The marshal’s return of service recited that the plaintiff made service of the summons and complaint upon the Assistant Town Clerk of the town of Colchester " authorized to and accepting for the within named defendant, Board of Assessment Appeals, Town of Colchester."
The town filed discovery motions and objected to the plaintiff’s motion for protective order. A trial date has been agreed upon by both parties for April 25, 2018.
General Statutes § 12-117a states, in relevant part, that " [a]ny person ... claiming to be aggrieved by the action of ... the board of assessment appeals ... may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom ... to the superior court ... which shall be accompanied by a citation to such town ... to appear before said court."
In its motion to dismiss, the town argues that the board of assessment appeals was named as the defendant, not the town of Colchester. However, the mistake of naming the board of assessment appeals rather than the town in this case does not rise to the level of whether or not the court has jurisdiction to hear this case.
First, this action is an appeal from the action of the board of assessment appeals and, second, the appeal does refer to the board as being a board in the town of Colchester. It cannot be argued that this appeal was anything but an appeal to the town of Colchester. The naming of the board of assessment appeals of the town of Colchester leaves no doubt as to who the defendant is in this case.
In Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 401, 655 A.2d 759 (1995), the court concluded that " the naming of the board instead of the town was a circumstantial error, mistake or defect under § 52-123. We further conclude that because the language of § 52-123- ‘[n]o writ ... shall be ... set aside ... for any kind of circumstantial errors, mistakes or defects if the person and the cause may be rightly understood and intended by the court’- is mandatory rather than directory, the plaintiff was entitled to correct its error by amendment."
The facts in this case show that a clear identification of the town was made as a defendant and service was made on the assistant town clerk of Colchester. In addition, the town participated in various pleadings as well as the setting of a trial date.
Pertinent to the issue of jurisdiction, the Andover court noted that " it is evident that the town, rather than the board, was the intended defendant and that the town had actual notice of the institution of this action. The plaintiff’s intent was to appeal the alleged excessive tax assessment under § 12-117a ... [T]he town implicitly recognized that it was the proper defendant in this action by accepting service of the citation, appearing in the action, answering the complaint and otherwise acting as the defendant." Id., 400. The facts in the Andover case are quite similar to the facts in this case.
Although technically incorrect, the naming of the town of Colchester with the board of assessment appeals in the same breath, rather than individually, does not deprive this court of jurisdiction to hear this case. The reason why the town of Colchester should be named a party to this action, is the requirement in § 12-117a that service of an appeal, in the way of a citation, shall be made to " such town or city to appear before said court." See Chestnut Point Realty, LLC v. East Windsor, 324 Conn. 528, 538-40, 153 A.3d 636 (2017), in which the court held that service of the citation be made upon the defendant town.
The second issue raised by the town, in support of its motion to dismiss, is the claim of improper venue.
The issue of improper venue arises from § 12-117a which recites that the person appealing the action of the board of assessment appeals may make application " to the superior court for the judicial district in which such town ... is situated ..."
In the present action, the return was made to the superior court for the judicial district of New Britain, which contains the Tax Session. See General Statutes § 12-39l . As both counsel are aware, it is not uncommon for the Tax Session to preside over municipal property tax appeals brought in the various judicial districts of Connecticut. These appeals are transferred by order of the administrative judge or the presiding judge of the districts where the tax appeal was originally brought.
As noted in Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 819, 925 A.2d 292 (2007), statutes providing for venue do so " merely for the convenience of the parties, [and] should be presumed not to be jurisdictional in the absence of any clear expression of legislative intent to the contrary."
The proper procedure for the plaintiff’s failure to bring this action to the correct venue is to transfer the case to the New London judicial district. See id., 820.
In view of the case being scheduled for trial on April 25, 2018, the motion to dismiss is denied.
The plaintiff filed a request for leave to revise the summons and complaint (# 114) to specifically name the town of Colchester as defendant in this action and offers to transfer the case to the judicial district of New London if the defendant seeks the transfer.
The request to revise the summons and complaint to name the town of Colchester as a defendant in this action is granted. Since the parties have agreed to a trial date of April 25, 2018, in the Tax Session in the judicial district of New Britain, there is no need to consider a transfer of their appeal to the judicial district of New London.