Opinion
CV196041378S
09-17-2019
FIRST TAXING DISTRICT OF the CITY OF NORWALK v. TOWN OF NEW CANAAN et al.
UNPUBLISHED OPINION
OPINION
KAVANEWSKY, J.
Before the court is the defendants’ motion to strike the plaintiff’s citation of, as party defendants, the Board of Assessment Appeals of the Town of New Canaan (the Board), and Sebastian Caldarella, Tax Assessor of the Town of New Canaan (the Assessor).
This action is in the nature of a real property tax appeal. In its complaint, the plaintiff alleges the following facts that are pertinent to this motion. On October 1, 2018, the plaintiff was the owner of certain real property in New Canaan, commonly known as 1124 Valley Road (the property). In preparation for the Town-wide reevaluation effective for the Grand List of October 1, 2018, and in accordance with Gen. Stat. § 12-62a, the Assessor established a valuation for the plaintiff’s property as of October 1, 2018. The plaintiff duly appealed the Assessor’s valuation to the Board. The Board, pursuant to Gen. Stat. § 12-111, dismissed the plaintiff’s appeal and made no changes in the valuation.
The plaintiff also alleges that the subject property includes certain reservoirs and a water filtration plant which should have been assessed as farmland. See Gen. Stat. § 12-76a. As a consequence, the plaintiff has included a second count in the complaint to more specifically allege a wrongful assessment thereof.
The plaintiff claims to be aggrieved by the actions of the defendants. It alleges that the Assessor’s valuation, and as left unchanged by the Board, was not the property’s true and actual value as required by Gen. Stat. § 12-63b, but was instead "grossly excessive, disproportionate and unlawful." Accordingly, the plaintiff appealed to the Superior Court pursuant to Gen. Stat. § 12-117a. It named the Town of New Canaan, the Board and the Assessor as defendants.
The Town of New Canaan has filed this motion to strike the Board and Assessor as parties to this action. The Town claims that 1) the Board and the Assessor are not necessary parties, and; 2) they are not legal entities capable of being sued. The plaintiff has objected on the grounds that because the Assessor made the determination of valuation, and because the Board did not change that valuation, they are both necessary and interested parties for purposes of this appeal. The plaintiff also argues that should this court sustain the appeal and determine a different valuation for the property, the Assessor and the Board would be required to take certain actions consistent therewith.
"[T]he exclusive remedy for misjoinder of parties ... is by motion to strike." Bender v. Bender, 292 Conn. 696, 722 n.23, 975 A.2d 636 (2009); see also Practice Book § 11-3. "Naming an improper person as a party in a legal action constitutes misjoinder." (Internal quotation marks omitted.) Bloom v. Milkovich, 111 Conn.App. 323, 329, 958 A.2d 1283 (2008). This court agrees with the Town on the first ground that it has raised in support of the motion to strike, thereby making it unnecessary to reach the second ground raised.
The court does not dispute the plaintiff’s contention that its appeal exists only under statutory authority, and that strict compliance with that authority is mandatory. Raines v. Freedom of Information Commission, 221 Conn. 482, 604 A.2d 819 (1992); see also Wlodkowski v. Town of Durham, Superior Court, judicial district of Middlesex, Docket No. CV-03-0100869S (December 2, 2013, Aurigemma, J.) . In this instance, the controlling statutory authority is found in Gen. Stat. § 12-117a. That statute requires, in pertinent part, that in order to appeal from a decision of a town’s board of tax review or board of assessment appeals, the aggrieved party must make application to the superior court, "which [application] shall be accompanied by citation to such town or city to appear before said court."
The applicable statutory language in § 12-117a is clear and unambiguous. Nowhere within the statute is there any requirement that the citation also be directed to the assessor or to the board of tax review or board of assessment appeals, as the case may be. Therefore, "extra textual evidence of the meaning of the statute shall not be considered." Buonauto v. City of Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV-02-0172888-S (December 22, 2003, Alvord, J.) . Moreover, it is not persuasive to this court that additional parties may be named as defendants, simply because neither the statute nor the cases relied upon by the plaintiff do not purport to specifically prohibit their being named.
In their memoranda, both parties rely upon Southern New England Telephone Co. v. Board of Tax Review, 31 Conn.App. 155, 623 A.2d 1027 (1993). There, the court held that it was a jurisdictional defect requiring dismissal when the plaintiff had named a municipal board of tax review as a party, rather than the municipality itself. In Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 655 A.2d 759 (1995), the court held that a dismissal was not required, where the plaintiff had named as a defendant the board of tax review, only. The court reasoned that since the appeal had been served upon the town clerk, and the town was defended by its attorney, that the plaintiff had made a circumstantial error which could be cured by amendment. Neither of these cases support the plaintiff’s argument in the instant matter that the Assessor and Board of Assessment Appeals are necessary parties.
The plaintiff’s additional argument is that, should this court sustain the appeal and determine a different valuation for the property, results would follow which may require that the Assessor and the Board be named as interested parties. The court does not see the validity of that argument. § 12-117a specifically provides that should a court reduce a property assessment, that the town or city shall reimburse the property owner in connection therewith. Further, the plaintiff has not directed this court to any authority to suggest that the Assessor would not be legally obligated to conform any information created or maintained by his office, to be consistent with any judgment of this court.
The statute provides that "If the assessment made by the board of tax review or board of assessment appeals, as the case may be, is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and any costs awarded by the court, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and any costs awarded by the court. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, less any lien recording fees incurred under sections 7-34a and 12-176, together with interest and any costs awarded by the court. The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant’s property has increased or decreased."
For the foregoing reasons, the plaintiff’s motion to strike is granted. So ordered.