Opinion
No. CV02 0280551-S
August 19, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS # 101
The plaintiff filed this appeal, pursuant to General Statutes § 12-117a, challenging the decision of the board of assessment appeals of the city of Meriden (the board) to deny an appeal of the tax assessment of the plaintiff's commercial property. Section 12-117a provides in pertinent part: "[A]ny person . . . claiming to be aggrieved by the action of the board of tax review in any town or city . . . may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action." (Emphasis added.)
General Statutes § 12-111 gives the board the authority to elect not to conduct an appeal for any commercial property with an assessed value greater than $500,000.
General Statutes § 52-57b provides: "Manner of service upon individuals, municipalities, corporations, partnerships and voluntary associations. Process in civil actions against the following-described classes of defendants shall be served as follows: (1) Against a town, upon its clerk, assistant clerk, manager or one of its selectmen; (2) against a city, upon its clerk or assistant clerk or upon its mayor or manager; (3) against a borough, upon its manager, clerk or assistant clerk or upon the warden or one of its burgesses; (4) against a school district, upon its clerk or one of its committee; and (5) against other municipal or quasi-municipal corporations, upon its clerk or upon its chief presiding officer or managing agent." (Emphasis added.)
In its appeal, the plaintiff alleges that the assessor of the city of Meriden improperly valued the property owned by the plaintiff. After submitting to the board an application appealing the assessment, the plaintiff received a notification of the denial of the appeal. Thereafter, the plaintiff filed a summons in the Superior Court, naming the "Board of Assessment Appeals of the City of Meriden" as the sole defendant. In the citation and recognizance filed with the summons and the appeal, the plaintiff commanded the marshal to summon "the City of Meriden . . . said appearance to be made by the Board of Assessment Appeals of the City of Meriden . . ." The marshal thereafter served the assessor for the city of Meriden. The marshal did not serve the city clerk of Meriden, as evidenced by the affidavit filed by the clerk. The defendant has moved to dismiss the appeal, claiming the court lacks subject matter jurisdiction because the plaintiff did not name and serve the proper party. The defendant argues that § 12-117a requires the plaintiff in a tax appeal to name and to serve the town through the mayor or the city clerk, rather than naming and the board of assessment appeals and serving the assessor, as the plaintiff did.
The return of service recites that the marshal served the assessor Michael "Molinari." The affidavit of the assessor, filed by the defendant, states that the assessor is Michael "Mordarski." No evidence has been presented that the assistant clerk, mayor or manager was served as well.
"Appeals to courts from administrative agencies exist only under statutory authority . . . A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provision by which it is created . . . Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal." (Citations omitted; internal quotation marks omitted.) Raines v. Freedom of Information Commission, 221 Conn. 482, 4879-90, 604 A.2d 819 (1992); see also Southern New England Telephone Co. v. Board of Tax Review, 31 Conn.App. 155, 160-61, 623 A.2d 1027 (1993).
In a tax appeal under § 12-117a, the town is the proper and necessary defendant and the board of tax review is not. See Southern New England Telephone Co. v. Board of Tax Review, supra, 31 Conn.App. 160-61. In Southern New England Telephone Co. the plaintiff, in a tax appeal, failed to name the town as a defendant and also failed to serve the town clerk. Id., 157. Instead, the board of tax review was named as the defendant in the citation and the chairperson of the board was served with process. Id. The court held that the "failure to name and serve the statutorily mandated necessary party in the citation [was] a jurisdictional defect that [rendered] the administrative appeal subject to dismissal." Id., 162. Similarly, in the current matter, the town was neither properly named nor served; rather, the tax board was named in the complaint and the assessor was served with process.
In Andover Ltd. Partnership I v. Board of Tax Review; 232 Conn. 392, 394, 655 A.2d 759 (1995), the plaintiff improperly named the board of tax review as the defendant but properly served the assistant town clerk. The trial court had denied the plaintiff's request to amend the complaint under General Statutes § 52-123, which provides that "no writ, pleading, judgment or any kind of proceeding in court or court of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court." Andover Ltd. Partnership I v. Board of Tax Review, supra, 395. The court held that naming the board, rather than the town, was a circumstantial defect that could be cured by amendment under § 52-123. Id., 401.
The court began by noting that "[s]ection 52-123 is a remedial statute and therefore it must be liberally construed in favor of those whom the legislature intended to benefit." (Internal quotation masks omitted.) Id., 396. Then, in its discussion, the court emphasized the case of Pack v. Burns, 212 Conn. 381, 384-85, 562 A.2d 24 (1989), where "the plaintiff initially named as defendant the `State of Connecticut Transportation Commission,' a nonexistent entity, but then properly served notice of the claim on the commissioner of transportation, as required by General Statutes § 13a-144. [The court] determined that `[t]he effect given to such a misdescription usually depends upon the question whether it is interpreted as merely a misnomer or defect in description, or whether it is deemed a substitution or entire change of party; in the former case an amendment will be allowed, in the latter it will not be allowed.'" Id., 397, quoting Pack v. Burns, supra, 384-85.
Although in Andover Ltd. Partnership I v. Board of Tax Review, supra, 232 Conn. 394, the plaintiff was allowed to amend its complaint to name the town rather than the tax board, the court noted that the assistant town clerk had been properly served. In other tax appeals in which the tax board had been incorrectly named, but in which the town clerk had been served, dismissals were reversed by the Appellate Court. See Trap Falls Realty Holding Ltd. Partnership v. Board of Tax Review, Superior Court, judicial district of Ansonia-Milford, Docket No. 042573, (November 15, 1993, Jones, J.), rev'd, Trap Falls Realty Holding Ltd. Partnership v. Board of Tax Review, 37 Conn.App. 916, 655 A.2d 1178 (1995); HH Holding Company, Inc. v. Board of Tax Review, Superior Court, judicial district of New London, Docket No. 518770 (November 23, 1993, Austin, J.), rev'd, HH Holding Company, Inc. v. Board of Tax Review, 37 Conn.App. 917, 655 A.2d 1176 (1995) (stating that "[t]his case is controlled by Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 655 A.2d 759 (1995)").
In this case, the plaintiff did not serve the proper party. While an amendment is allowed to correct a misnomer or misdescription of the defendant in board of assessment appeals, such an amendment does not cure the defect of serving the assessor rather than the city clerk or mayor. The proper party must be served. See Southern New England Telephone Co. v. Board. of Tax Review, supra, 31 Conn.App. 160-61; see also Wlodkowski v. Durham, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 03 0100869 (December 2, 2003, Aurigemma, J.) ( 36 Conn. L. Rptr. 107).
The plaintiff's failure to name and serve the statutorily mandated necessary party in the citation is a jurisdictional defect that renders the administrative appeal subject to dismissal. The motion to dismiss is granted. This appeal is dismissed.
BY THE COURT
Tanzer, Judge