Reardon v. Town of Stonington

Full title: PATRICIA C. REARDON ET AL. v. TOWN OF STONINGTON ET AL

Court: Connecticut Superior Court, Judicial District of New London at New London

Date published: Oct 28, 2004

2004 Ct. Sup. 15726 (Conn. Super. Ct. 2004)

38 CLR 165

Opinion

No. 567065

October 28, 2004

MEMORANDUM OF DECISION

HURLEY, JUDGE TRIAL REFEREE.

By complaint dated August 15, 2003, the plaintiffs, Patricia C. Reardon and Eugene A. Winchester, trustees of the Eugene A. Winchester Revocable Trust, Eugene A. Winchester and Patricia Caton Reardon; interest holders in property located at 46 Nauyaug Point Road, Mystic, Connecticut, brought an action in two counts against the defendants, the town of Stonington and the town of Stonington board of assessment appeals.

Count one alleges that the plaintiffs have an interest in property known as 46 Nauyaug Point Road, Mystic, Connecticut. The assessor of Stonington valued the plaintiffs' property at $1,073,800.00. The plaintiffs claim that the valuation exceeded the true value of the premises and the valuation was grossly excessive, disproportionate to value and unlawful. Pursuant to § 12-111, the plaintiffs appealed to the town board of assessment appeals; however, the board did not change the valuation, and the plaintiffs claim they are aggrieved. Count two alleges a violation of General Statutes §§ 12-62a and 12-63. As relief, the plaintiffs seek, inter alia, an injunctive order requiring the defendants to conduct a new revaluation of all real property in Stonington, including the plaintiffs' property.

On October 22, 2003, the defendant town of Stonington filed a motion to strike the second count of the plaintiffs' complaint as well as the second prayer for relief accompanied by a memorandum in support. The plaintiffs filed a memorandum of law in opposition dated November 6, 2003.

I DISCUSSION

The purpose of a motion to strike "is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] party wanting to contest the legal sufficiency of a complaint, counterclaim, cross claim or any counts contained therein or a prayer for relief the joining of two or more causes of action or the legal sufficiency of an answer may file a motion to strike." Sheiman v. Sheiman, 72 Conn.App. 193, 200, 804 A.2d 983 (2002). "[W]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). Moreover, "[t]he court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

The defendant moves to strike count two on four grounds. First, General Statutes § 12-63 and § 12-62a are not independent causes of action without reference to § 12-119. Defendants are also moving to strike second prayer for relief. Second, the plaintiffs are not entitled to injunctive relief, nor may they pursue punitive damages. Third, the civil action alleged in count two may not be joined with the administrative appeal set out in count one. Finally, the plaintiffs have not joined the necessary parties to this action, i.e, the other property owners in the town of Stonington who may be affected by the outcome of this litigation.

A General Statutes § 12-119 Cause of Action

Connecticut law provides two methods by which a taxpayer may contest property taxes. The first and most widely used method is to appeal the assessment to the board of assessment appeals and if the taxpayer is not satisfied she may appeal to the Superior Court under the provisions of § 12-117a. See Woodbury v. Pepe, 6 Conn.App. 330, 332, 505 A.2d 723 (1986). The second method of challenging an assessment or revaluation is by way of § 12-119 wherein the taxpayer must allege and prove that her property has been wrongfully assessed. Id. Section 12-119 "allows a taxpayer one year to bring a claim that the . . . assessment was `manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the real] property . . .' Our case law makes clear that a claim that an assessment is `excessive' is not enough to support an action under this statute. Instead, § 12-119 requires an allegation that something more than mere valuation is at issue. It is this element that distinguishes § 12-119 from its more frequently invoked companion, [12-117a]." (Internal quotation marks omitted.) Wilson v. Kelley, 224 Conn. 110, 118, 617 A.2d 433 (1992).

In the present case, the plaintiffs do not specifically plead statutory Sections 12-117a or 12-119 in their complaint. Practice Book § 10-3(a) provides that "[w]hen any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number." Although the plaintiffs failed to explicitly cite either § 12-117a or § 12-119 in their complaint, the Connecticut Supreme Court has stated that "[§ 10-3(a)] is merely directory and not mandatory." Steele v. Stonington, 225 Conn. 217, 221 n. 7, 622 A.2d 551 (1993). While the defendant concedes in its memorandum of law in support of its motion to strike that the plaintiffs' count one sounds in a "classic administrative appeal" pursuant to § 12-117a, it argues that there is no reference to a valid cause of action pursuant to § 12-119 in either count one or count two of the complaint, and that the allegations of a violation of § 12-62a and § 12-63, are not "statutorily" allowed independent causes of action.

There are two possible grounds for recovery under § 12-119. The first ground, which is not applicable in the present case, embraces situations where a tax has been laid upon property that is not taxable. The second ground consists of "claims that assessments are (a) manifestly excessive and (b) . . . could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of the property . . . Cases in this category must contain allegations beyond the mere claim that the assessor overvalued the property. [The] plaintiff . . . must satisfy the trier that [a] far more exacting test has been met: either there was misfeasance or nonfeasance by the taxing authorities, or the assessment was arbitrary or so excessive or discriminatory as in itself to show a disregard of duty on their part . . . Only if the plaintiff is able to meet this exacting test by establishing that the action of the assessors would result in illegality can the plaintiff prevail in an action under § 12-119. The focus of 12-119 is whether the assessment is illegal . . .; see E. Ingraham Co. v. Bristol . . . (municipality disregarded the statutes when it taxed real property at 50 percent of its value, personal property at 90 percent and motor vehicles at 100 percent at a time when municipalities were prohibited from assessing property as percentage of its value)." (Citations omitted; internal quotation marks omitted.) Wilson v. Kelley, supra, 224 Conn. 119.

In the present case, the plaintiffs have alleged sufficient facts in count one of the complaint to assert a cause of action under both § 12-117a and § 12-119. In the complaint, the plaintiffs allege that the town of Stonington has assessed their property at a valuation that "was grossly excessive, disproportionate to value and unlawful." In addition to this allegation, the plaintiffs allege that the town is required to assess all the property in the town at 70 percent of its true and actual valuation pursuant to § 12-62 and that the town exceeded that percentage in its valuation of the plaintiffs' property. This court needs to look no further than to Wilson v. Kelley discussed above, which sets forth the requirements for a § 12-119 cause of action, to conclude that the plaintiffs have set forth a sufficient cause of action under § 12-119 by alleging that the assessor's actions resulted in an illegal act. In the present case, the plaintiffs have sufficiently alleged, not only in count one, but also in count two, which incorporates paragraphs one through five of count one, that the defendant has acted illegally in contradiction to § 12-62a and § 12-63 by disregarding the mandates of these statutes. "An attempt to strike an entire count on a claim that it does not set out a cause of action must fail if parts or portions of the count do set out such a cause of action." Johnson v. Killingworth, Superior Court, judicial district of Middlesex, CV 64578, 8 Conn. L. Rptr. 227 (January 14, 1993, Walsh, J.) Therefore, reading the allegations of counts one and two in a light most favorable to the plaintiffs, this court finds that sufficient facts exist to sustain a cause of action under § 12-119, despite the plaintiffs' failure to specifically plead the statute by its number in the complaint. The defendant's motion to strike on this ground is therefore denied.

B Injunctive Relief Under § 12-119

The defendant has offered two additional grounds for striking count two: that the plaintiffs are not entitled to injunctive relief under § 12-119 and that the civil action alleged in count two may not be joined with the administrative appeal set out in count one. This court, as discussed, finds that the plaintiffs have sufficiently pleaded a cause of action under § 12-119, thus, this court need now only review whether the plaintiffs may bring a claim for injunctive relief under § 12-119, and by addressing this issue, the court inevitably addresses the issue of whether a civil cause of action may be brought within the same complaint that invokes § 12-119.

In Hartford v. Faith Center, Inc., 196 Conn. 487, 493 A.2d 883 (1985), the leading case on injunctive relief under § 12-119, the defendant appealed to the Connecticut Supreme Court after the trial court granted the plaintiff's (the city) motion to strike the defendant's counterclaim. The city brought a suit to collect taxes under § 12-161. The defendant counterclaimed pursuant to § 12-119 and asserted that the city's tax assessment was illegal, and prayed to the court, inter alia, for a restraining order preventing the city from collecting taxes that were allegedly owed to the city. The court held that § 12-119 is "declaratory of existing legal and equitable rights . . . General Statutes § 12-119 . . . [questioning the legality of a tax] shall not suspend action upon the tax against the applicant . . . To allow a defendant in a collection action to attack the legality of the assessment by a counterclaim seeking injunctive relief would result in just such an interruption in the collection of the tax as is expressly barred in the codification of the taxpayer's equitable rights in § 12-119. While an action questioning the legality of a tax may be brought independent of a pending collection action if the time period within which the tax may be challenged has not expired, the law does not permit such a claim to interfere with the orderly prosecution of the municipality's suit to collect the tax pursuant to 12-161." Id., 493-94. "[A]n action in equity to enjoin the collection of a tax, . . . is not generally available, but may be rendered only in `extreme cases.'" Hartford v. Faith Center Inc., supra, 196 Conn. 492-93. The court acknowledged that it would not decide the appropriateness of such equitable relief based on the defendant's allegations in their counterclaim, but it would conclude that in the context in which the counterclaim was filed, such a claim may not be brought in a counterclaim to an action by the city to enforce a tax collection under § 12-161.

The present case, however, can be distinguished from the procedural posture and particular facts of Hartford v. Faith Center, Inc. In the present case, the plaintiffs have appealed the valuation of the town of Stonington's board of assessment appeals, in part, by invoking § 12-119 to address the alleged unlawful violations of § 12-62a and § 12-63. In addition, the plaintiffs are not seeking injunctive relief to enjoin the collection of taxes; they are simply praying to the court to issue an injunctive order requiring the town to reassess all properties in Stonington in a uniform manner and at the mandated percentages as set forth in § 12-62 and § 12-63. Furthermore, the city has not instituted an action against the plaintiffs to enforce a tax collection under § 12-161, or any other statute. Therefore, the holding of Hartford v. Faith Center, Inc., that an action in equity for injunctive relief against the collection of taxes is not generally available under § 12-119, except in extreme cases, is illustrative, but distinguishable from the present case. The holding does not explicitly foreclose the equitable remedy of injunctive relief under the facts and circumstances of the present case.

Most similar to the facts of the present case are St. John's Housing Corp. v. Cromwell, Superior Court, judicial district of Middlesex, Docket No. CV 63354, 6 Conn. L. Rptr. 391 (May 20, 1992, Austin, J.) and Johnson v. Killingworth, supra, Superior Court, Docket No. CV 64578. In St. John's the plaintiff alleged in its complaint that the tax levied on its property was manifestly excessive and could not have been determined without disregarding the statutes governing the valuations of properties. Secondly, the plaintiff alleged that the grand list was illegal because the assessor had breached his duties as mandated by § 12-62. The plaintiff sought, inter alia, an injunction restraining the town of Cromwell from collecting any real estate taxes based on the alleged illegal grand list. The town of Cromwell moved to strike second count of the plaintiff's complaint, which invoked § 12-119, on the grounds that the claim violated the statutory time limitation. The court, in discussing § 12-119, cited the Connecticut Supreme Court case, Connecticut Light Power Co. v. Oxford, 101 Conn. 383, 126 A. 1 (1924), and held that, "although General Statutes Sec. 12-119 codifies the equitable rights of taxpayers . . . it is merely an additional procedural path and does not foreclose equitable relief . . . [T]he practice of bringing a declaratory judgment action seeking a declaration that certain assessments are void combined with a request for an injunction preventing the collection of taxes on the allegedly void assessments has been approved." (Citations omitted.) St. John's Housing Corp. v. Cromwell, supra, Superior Court, CV 63352.

In Johnson v. Killingworth, the plaintiffs sought, in count six of their complaint, equitable, declaratory and injunctive relief from an alleged improper tax assessment. The court held that "General Statutes Sec. 12-119 was clearly intended to take the place of the remedy in equity based on the over-valuation of the property and as all the relief can be obtained under it which could be afforded by equity, it precludes a resort to equity generally . . . However, equitable relief would be available where legal relief is unavailable or inadequate . . . An equitable action to enjoin the collection of a tax is available in extreme cases . . . [A]n allegation that the tax assessor failed to perform his duties as mandated by General Statutes Sec. 12-62 [constitutes] an extreme case in which an equitable cause could be sustained . . . The plaintiffs' cause of action pursuant to Sec. 12-119 does not preclude the plaintiffs from asserting an action in equity to enjoin the collection of a tax in extreme cases . . . [T]he assessor failed to follow the mandate of Conn. General Statutes Sec. 12-62. Such allegations are sufficient to give rise to an equitable cause of action . . . Therefore, the defendant's motion to strike count six is denied." (Citations omitted; internal quotation marks omitted.) Johnson v. Killingworth, supra, Superior Court, Docket No. CV 64578; see also Riggi v. Milford, Superior Court, judicial district of Milford, Docket No. CV 92 041325, 8 Conn. L. Rptr. 256 (January 20, 1993, Gormley, J.) (injunctive relief and relief by declaratory judgment are cognizable under § 12-119.)

In the present case, the plaintiffs have alleged, in part, precisely what was alleged in Johnson v. Killingworth, that the town of Stonington has failed to value their property in accordance with § 12-62a. On these facts alone, the Superior Courts that have addressed this issue have found that equitable injunctive relief may be claimed pursuant to § 12-119. Therefore, this court finds, reading the complaint in a light most favorable to the plaintiffs, that they have sufficiently pleaded a cognizable cause of action for injunctive relief pursuant to § 12-119. The defendant's motion to strike on the grounds that the plaintiffs are not entitled to injunctive relief under § 12-119 and that the civil action alleged in count two may not be joined with the administrative appeal set out in count one is therefore denied.

C Joining Necessary Parties

The fourth and final ground offered by the defendant in its motion to strike count two of the plaintiffs' complaint, is that the plaintiffs have failed to join necessary parties, i.e. the other property owners in Stonington who may be affected by the outcome of the present case. This court agrees with the defendant that the plaintiffs need to join other property owners that may be affected by this litigation, or at least give notice to these property owners of the present proceedings.

"Necessary parties . . . are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it . . . [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties." (Citations omitted; internal quotation marks omitted.) Napoletano v. CIGNA Health Care of Connecticut, Inc., 238 Conn. 216, 225 n. 10, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997).

In the present case, the plaintiffs, in their memorandum in opposition to the motion to strike, rely on two cases in the context of declaratory judgment actions, Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 715 A.2d 46 (1998), and National Transportation Co., Inc. v. Toquet, 123 Conn. 468, 196 A. 344 (1937), for the proposition that they are not required to notify "interested parties" of the present litigation. In Stafford, the plaintiff, pursuant to § 12-119, challenged the town's decision to stay the implementation of a decennial revaluation of property within the township claiming that certain public acts did not authorize the town to postpone the valuations. In addition, the plaintiff claimed that the public acts utilized by the town were unconstitutional because they deprived him equal protection of the law. The trial court held that it did not have subject matter jurisdiction because adequate notice was not given to "interested parties," namely the town's tax payers. The Connecticut Supreme Court held, inter alia, that the trial court did have subject matter jurisdiction to hear such claims, and furthermore, "the concern for third-party interests in the challenged legislation . . . is outweighed by the importance of honoring the legislature's grant of statutory avenues of appeal with regard to municipal or agency legislation . . . [T]here are many instances in which a party is entitled to relief at law, even though the proceedings he brings may result in the establishment of a rule which will directly affect the interests of others not parties to the action . . . Indeed, every decision that substantively affects the shape of the law inevitably impacts upon the interests of third persons. In general, however, notice to such persons is not required, not only because such a requirement would be unduly burdensome, but also because their interests are adequately represented by a defendant and by a plaintiff with proper standing. In our view, challenges to the validity of municipal or agency legislation, the interests of the municipality or agency in upholding its legislation provide sufficient protection to the interests of third parties in that legislation and, therefore, it is not necessary to require that such challenges be brought as declaratory judgment actions at least in so far as relief to the plaintiff is concerned, the municipality, made a party to the action, represents the residents and property owners within its boundaries." Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 581-82; National Transportation Co., Inc. v. Toquet, supra, 123 Conn. 482, ("one whose property rights are directly affected by a municipal ordinance or regulation which he claims to be void may bring an appropriate action for relief against the municipality and is not bound . . . to make all other property owners whose rights may be affected parties to the proceedings . . .")

Stafford can be distinguished, however, from the present case. In Stafford, the plaintiff claimed that the statutory regulations upon which the town based its actions were unconstitutional in violation of the equal protection doctrine. The plaintiff sought to have the tax regulations overturned, thereby affecting the interests of property owners as to how the town would assess the value of their lands. The plaintiff's direct attack on the legislation, however, was the impetus for the Supreme Court's holding that all parties affected by the law need not be given notice because the legislative body itself is a proper party to defend the validity of proposed legislation. In the present case, the plaintiffs are challenging the town's actions, not its legislation. The plaintiffs are not praying to the court to overturn legislation, but to enforce it. The town's actions solely are in controversy. Therefore, for the limited issue as to whether a plaintiff challenging the town's actions as unlawful needs to join interested or necessary parties, Stafford Higgins Industries, Inc. v. Norwalk, is not controlling. National Transportation Co., Inc. v. Toquet, however, does set out the rule when persons with a direct interest in the subject matter of an action should be given notice.

In National Transportation Co., Inc. v. Toquet, supra, 123 Conn. 468, the Supreme Court, in its discussion of declaratory judgments held that "when declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration . . . One of the broad purposes of the declaratory judgment law is to serve the peace and good order of the community by settling rights in such a way as to prevent litigation." (Citations omitted; internal quotation marks omitted.) Id., 482-83. "In the absence of a requirement that all parties interested in the subject-matter should be made parties to the action, the reason still exists." Id., 483. "As between such a provision as that in the uniform declaratory judgment statute we have quoted and the absence of any requirement that persons having a direct interest in the subject-matter of the action should be made parties, we have chosen the middle course. Under our rule all such persons even though their presence is not necessary to a decision of the issues between the parties of record are required either to be made parties or to have reasonable notice of the action. Where they are reasonably within the reach of process and are not so numerous that it would impose an unreasonable burden upon the plaintiff they should be made parties; but if they or some of them are not reasonably available for service or to summon them or all of them into the action would put upon the plaintiff a burden he ought not fairly to be asked to assume, the provision for reasonable notice applies . . . Unless all persons who are interested in the subject matter complained of are made parties, the plaintiff should apply to the court for such an order of notice to all those interested as would constitute reasonable notice to them." (Citation omitted.) Id., 484.

In Mannweiler v. LaFlamme, 232 Conn. 27, 653 A.2d 168 (1995), the Connecticut Supreme Court discussed whether a declaratory judgment action concerning a restrictive covenant in a land development, coupled with a prayer for injunctive relief, where notice was not provided to other interested land owners, could be granted. The court, in finding that the declaratory judgment could not be granted for failure to notify the interested parties, reasoned that "[t]his rule is not merely a procedural regulation. It is in recognition and implementation of the basic principle that due process of law requires that the rights of no [person] shall be judicially determined without affording him [or her] a day in court and an opportunity to be heard . . . Disposition of this case without the presence of all of the lot owners could lead to unacceptable results . . . Thus, because adjudication of the declaratory claim necessarily implicates the interests of every other lot owner within the development, each must be given notice and an opportunity to be heard." (Citations omitted; internal quotation marks omitted.) Id., 33-34. "Furthermore, our concern with the provision of proper notice to all parties with an interest in property subject to the deed restrictions at issue applies with equal force to the plaintiffs' claim for injunctive relief . . . The plaintiffs' claims for injunctive and declaratory relief both rise and fall on the interpretation of the deeds at issue in the case and are, therefore, inexorably intertwined. Because to decide one claim is to decide the other, reaching the merits of the claim for injunctive relief — which in this case is essentially just the procedural method for enforcement of the declaratory judgment — through an artificial severance of the claim for declaratory relief would lead to the same multiplicity of litigation that would arise were we to address the declaratory judgment on its merits. The interests of judicial economy and fairness that require the plaintiffs in a declaratory judgment action to give notice to all interested parties militate against our deciding the fundamental issue underlying that cause of action under another name." Id., 35-36.

The proper analysis in the present case, therefore, is to determine whether other Stonington property owners are necessary parties requiring notice of these proceedings given the plaintiffs' prayer for an injunctive order compelling the town of Stonington to reassess all properties within its boundaries. If the plaintiffs' prayer for injunctive relief to have all of Stonington properties reassessed is granted, it will undoubtedly affect the interests of Stonington property tax payers by readjusting their property tax burden. Under the rule stated in National Transportation Co., Inc. v. Toquet and the reasoning arrived at in Mannweiler v. LaFlamme concerning judicial economy and fairness, the court finds that, although the present action is not one seeking declaratory judgment for reasons similar to those in the declaratory judgment context, the plaintiffs must give notice to the other interested land owners of the present proceedings. The other Stonington property owners that may be affected by this litigation are, at a minimum, entitled to receive reasonable notice because their interests as property owners are necessarily implicated by the present action. The motion to strike count two on the ground that the plaintiffs failed to join necessary parties is therefore granted.

Punitive Damages

The defendant also moves to strike the plaintiffs' second prayer for relief, which requests punitive damages. The defendant asserts that the plaintiffs are not entitled to punitive damages under any of the statutes governing tax appeals. This court finds that plaintiffs have not alleged sufficient facts to sustain a prayer for relief of punitive damages.

"The flavor of the basic requirement to justify an award of punitive or exemplary damages has been repeatedly described in terms of wanton and malicious injury, evil motive and violence . . . [P]unitive damages may be awarded only for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interest of others." Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 128, 222 A.2d 220 (1966). "To furnish a basis for recovery of such damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court or opposing counsel that such damages are being sought." Markey v. Santangelo, 195 Conn. 76, 77, 485 A.2d 1305 (1985).

In the present case, the plaintiffs have not pleaded any facts that allege that the defendant acted in a wanton or wilful malicious way. The plaintiffs simply allege that the defendants "intentionally" under-assessed many town properties. There are no allegations that the town's actions rise to the level of wanton or malicious misconduct. Therefore, the plaintiff's second prayer for relief requesting punitive damages is stricken.

III CONCLUSION

Accordingly, the defendant's motion to strike count two of plaintiffs' complaint is granted. In addition, the plaintiffs' second prayer for relief requesting punitive damages is stricken.

D. Michael Hurley, JTR