Chestnut Point Realty, LLC v. East Windsor ( 2015 )

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CHESTNUT POINT REALTY, LLC v. TOWN OF
EAST WINDSOR
(AC 36819)
Lavine, Beach and Prescott, Js.
Argued April 8—officially released July 21, 2015
(Appeal from Superior Court, judicial district of New
Britain, Hon. Arnold W. Aronson, judge trial referee.)
Jonathan M. Starble, for the appellant (plaintiff).
Laura A. Cardillo, with whom, on the brief, was
Tiffany K. Spinella, for the appellee (defendant).
Opinion
LAVINE, J. The plaintiff, Chestnut Point Realty, LLC,
appeals from the judgment of the trial court dismissing
its real estate tax appeal.1 On appeal to this court, the
plaintiff claims that the trial court improperly con-
cluded that General Statutes § 12-117a2 required it to
serve its appeal on the defendant, the Town of East
Windsor (town), within two months following notice of
a decision by its Board of Assessment Appeals (board).
More specifically, the plaintiff claims that (1) it met the
filing and service requirements of § 12-117a and (2)
the court failed to distinguish properly the procedural
differences between § 12-117a and common-law civil
actions. We affirm the judgment of the trial court.
The following undisputed facts are relevant to this
appeal. The plaintiff is the owner of real property
located at 171 Main Street in the town. For purposes
of the town’s grand list of October 1, 2012, the town
assessor valued the plaintiff’s property at $1,829,330.
The plaintiff appealed from the assessment to the board
and appeared at a hearing to request a reduction in the
assessment. On April 29, 2013, the board denied the
plaintiff’s request. On May 1, 2013, the assessor mailed
notice of the board’s decision to the plaintiff.3
On June 28, 2013, the plaintiff filed an application in
the Superior Court that was titled ‘‘Complaint,’’ bore a
return date of July 23, 2013, and was accompanied by
a citation and recognizance. On July 10, 2013, a marshal
served the application, citation, and recognizance on
the town and, on July 17, 2013, filed the return of service
in court. On August 14, 2013, the town filed a motion
to dismiss the appeal on the ground that the court
lacked subject matter jurisdiction because the plaintiff
had failed to serve the appeal within two months from
the date notice of the board’s decision was mailed. The
parties appeared before the court to argue the town’s
motion to dismiss. The court issued a memorandum of
decision on April 14, 2014, in which it granted the
motion, thus dismissing the plaintiff’s tax appeal.
The court found that the plaintiff had filed a citation
and complaint in the Superior Court in the judicial dis-
trict of Hartford on June 28, 2013, but did not serve the
town with the citation and complaint until July 10, 2013,
which is beyond the two month period, commencing
May 1, 2013, to take an appeal as required by § 12-117a.
The issue decided by the court was whether ‘‘the act
of filing an application and citation with the court
effects an appeal from the [board] pursuant to § 12-
117a.’’ The court concluded that filing an application
and citation in court does not commence a tax appeal.
In its memorandum of decision, the court noted that
appeals 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 provisions by which it is created.’’
(Citations omitted; internal quotation marks omitted.)
Raines v. Freedom of Information Commission, 221
Conn. 482, 489, 604 A.2d 819 (1992). Moreover, the court
stated, a tax appeal is a civil action. See Practice Book
§§ 14-54 and 14-65; see also Branford v. Santa Barbara,
294 Conn. 803, 815, 988 A.2d 221 (2010) (rules of practice
define tax appeal as civil action). The court concluded
that the plaintiff’s delivery of an application and citation
to the Superior Court did not commence the appeal
process because the appeal process begins with the
service of the citation and complaint on the town. With-
out proper service of process the town would have no
way of knowing that the plaintiff had brought an action
against it. The court granted the town’s motion to dis-
miss because the plaintiff failed to serve the town within
the two month period for taking an appeal pursuant to
§12-117a. The plaintiff appealed to this court.
On appeal, the plaintiff claims that the court improp-
erly concluded that § 12-117a requires the owner of
property to serve the town with the complaint and cita-
tion within two months of the board’s notice. The plain-
tiff’s claim requires us to construe the statute. It is well
established that statutory construction is a question of
law and our review of such questions is plenary. See
Tuxis Ohr’s Fuel, Inc. v. Administrator, Unemploy-
ment Compensation Act, 127 Conn. App. 739, 743, 16
A.3d 777 (2011), aff’d, 309 Conn. 412, 72 A.3d 13 (2013).
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered.’’ (Internal quotation
marks omitted.) PJM & Associates, LC v. Bridgeport,
292 Conn. 125, 134, 971 A.2d 24 (2009). We discern no
ambiguities in the language of the statute, and therefore
we do not resort to extratextual evidence.
We begin with the language of the statute at issue.
Branford v. Santa Barbara, supra, 294 Conn. 810. Sec-
tion 12-117a provides in relevant part: ‘‘Any 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 accom-
panied by a citation to such town . . . 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 man-
ner as is required in case of a summons in a civil
action.’’ (Emphasis added.)
‘‘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 provisions by which it
is created. . . . Such provisions are mandatory, and,
if not complied with, the appeal is subject to dismissal.’’
(Internal quotation marks omitted.) Southern New
England Telephone Co. v. Board of Tax Review, 31
Conn. App. 155, 160–61, 623 A.2d 1027 (1993).
The salient language of the statute requires that a
person claiming to be aggrieved by the assessor’s valua-
tion may, within two months, make application to the
Superior Court in the nature of an appeal, which shall
be served and returned in the same manner as a sum-
mons in a civil action. Nothing in the statute abrogates
the usual requirements that are applicable to the com-
mencement of a civil action.
As the trial court properly noted, a tax appeal is a
civil action. See Branford v. Santa Barbara, supra, 294
Conn. 815. Civil actions are commenced by service of
process. General Statutes § 52-45a; Rios v. CCMC Corp.,
106 Conn. App. 810, 820, 943 A.2d 544 (2008) (‘‘[l]egal
actions in Connecticut are commenced by service of
process’’ [internal quotation marks omitted]). General
Statutes § 52-91 provides in relevant part: ‘‘There shall
be one form of civil action. The first pleading on the
part of the plaintiff shall be known as the complaint
. . . .’’ See also Board of Education v. Tavares Pediat-
ric Center, 276 Conn. 544, 557, 888 A.2d 65 (2006) (‘‘title
52 correspondingly defines a civil action, without equiv-
ocation, as be[ing] commenced by legal process’’ [inter-
nal quotation marks omitted]).
As the relevant statutes and rules of practice provide,
and as our Supreme Court has held, an administrative
appeal is a civil action. A civil action is commenced by
service of process. ‘‘[A] writ of summons is a statutory
prerequisite to the commencement of a civil action.
. . . A writ of summons is analogous to a citation in
an administrative appeal . . . it is an essential element
to the validity of the jurisdiction of the court.’’ (Citations
omitted; internal quotation marks omitted.) New
England Road, Inc. v. Planning & Zoning Commis-
sion, 308 Conn. 180, 190, 61 A.3d 505 (2013). The need
for and purpose of a citation was addressed by our
Supreme Court in Village Creek Homeowners Assn. v.
Public Utilities Commission, 148 Conn. 336, 340, 170
A.2d 732 (1961). A citation ‘‘is a command to a duly
authorized officer to summon the commission and all
parties having an interest adverse to the appellant to
appear in court on a specified day to answer the com-
plaint. The summons is to be by service of true and
attested copies of the complaint and the citation in the
manner provided for the service of civil process. . . .
The citation, signed by competent authority, is the war-
rant which bestows upon the officer to whom it is
given for service the power and authority to execute
its command.’’ (Citation omitted.) Id., 338–39.
The plaintiff contends on appeal that there is nothing
in the statute that links the two month deadline with
service of process because § 12-117a is described in
terms of an application and an appeal rather than a
complaint. We disagree. The statute provides that an
application shall be made in the nature of an appeal
and that the appeal shall be served and returnable as
required in the case of a summons in a civil action.
The plaintiff, however, has isolated the words ‘‘make
application’’ from the words ‘‘in the same manner as is
required in case of a summons in a civil action.’’ The
two sets of words are connected in the statute by the
intervening words ‘‘served and returned.’’ Moreover,
the plaintiff further isolates the statutory requirements
by viewing them chronologically when they must be
applied as a unified whole. The words of a statute must
be read in the context of the entire statute. See Wiseman
v. Armstrong, 269 Conn. 802, 810, 850 A.2d 114 (2004).
The parties correctly note that no appellate court
has decided the precise question raised in the present
appeal.6 The judges of the Superior Court, however,
‘‘uniformly have held that service on the defendant
determines the time at which an appeal is deemed to
have been filed.’’ Greenwich New Englander Motor
Motel Association, L.P. v. Greenwich, Superior Court,
judicial district of Stamford-Norwalk at Stamford,
Docket No. CV-94-0139502-S (April 7, 1995). Our
research has disclosed more than fifty cases in which
the judges of the Superior Court have determined that
the time a tax appeal is filed is determined by the date
service of process is made on the defendant. See, e.g.,
id.; Ghent v. Greenwich, Superior Court, judicial district
of Stamford-Norwalk at Stamford, Docket No. CV-94-
0139416-S (April 4, 1995); Cooper v. Board of Tax
Review, Superior Court, judicial district of Fairfield,
Docket No. CV-94-313781-S (August 18, 1994), aff’d, 37
Conn. App. 914, 655 A.2d 818, cert. denied, 233 Conn.
916, 659 A.2d 185 (1995); Cohen v. Morris, Superior
Court, judicial district of Litchfield, Docket No. CV-
0059778-S (August 18, 1992); Hall v. Goshen, Superior
Court, judicial district of Litchfield, Docket No. CV-
0056240-S (October 23, 1991) (6 C.S.C.R. 1025) (5 Conn.
L. Rptr. 614); see also Gregersen v. Wilton, Superior
Court, judicial district of Stamford-Norwalk at Stam-
ford, Docket No. CV-89-0100691-S (December 18, 1989)
(5 C.S.C.R. 119) (1 Conn. L. Rptr. 111) (appeal initiated
by service of process on secretary of commission, citing
Valley Cable Vision, Inc. v. Public Utilities Commis-
sion, 175 Conn. 30, 31, 392 A.2d 485 [1978]).7
We recognize that an appellate court is not bound by
the decisions of a trial court, but the trial court decisions
cited in the previous paragraph and similar others are
compelling evidence that the legislature intended that
an appeal from the decision of a tax review board is
commenced by service of process, as in civil actions.
This is so because the ‘‘legislature is presumed to be
aware of the interpretation of a statute and . . . its
subsequent nonaction may be understood as a valida-
tion of that interpretation. . . . This presumption is
strengthened when the legislature has affirmatively
reenacted the statute after the interpretation in ques-
tion.’’ (Internal quotation marks omitted.) Jolly, Inc. v.
Zoning Board of Appeals, 237 Conn. 184, 200–201, 676
A.2d 831 (1996). Apart from modifying the language of
the statute to state that the appeal period commences
when notice of the board’s decision is mailed, the legis-
lature has not otherwise changed the language of the
statute at issue in this appeal. See footnote 7 of this
opinion.
In the present case, the court determined that the
plaintiff’s delivery of its application and citation to the
Superior Court did not commence the appeal process,
noting that the appeal process begins with the service
of the citation and complaint on the town. The court
found that the plaintiff had failed to do so within two
months of notice of the board’s decision. We agree with
the trial court that § 12-117a requires that the applica-
tion to appeal from a decision of the board is to be
made within two months of notice of the decision. The
plaintiff did not serve the town until July 10, 2013, which
is undisputed. The court, therefore, properly deter-
mined that it lacked subject matter jurisdiction over
the plaintiff’s appeal as the appeal was not commenced
in the time required by § 12-117a.
In addition to the clear language of the statute, we
note that there are public policy reasons for the two
month time limit in § 12-117a, namely, government’s
need for fiscal certainty. See Danbury v. Dana Invest-
ment Corp., 249 Conn. 1, 15, 730 A.2d 1128 (1999)
(municipality, like any government entity, needs to
know tax base with reasonable certainty). Statutes pro-
vide property owners with relief from valuations placed
on their property by assessors by way of ‘‘an appeal to
the board of relief, and from it to the courts . . . .
These statutes limit to a short period the time within
which the property owner can seek relief under them,
and the purpose of this is undoubtedly to prevent delays
in the ultimate determination of the amounts a munici-
pality can collect as taxes.’’ (Citations omitted.) Cohn
v. Hartford, 130 Conn. 699, 702, 37 A.2d 237 (1944).
In its analysis of § 12-117a, the plaintiff trips over the
word application. In doing so, the plaintiff relies on
Boltuch v. Rainaud, 137 Conn. 298, 77 A.2d 94 (1950),
where the word application appears in the controlling
statute in that case.8 Boltuch is distinguishable from the
present case because it concerns motions to vacate,
modify or correct an arbitration award. Id., 298–99.
Applications to confirm an arbitration award are special
proceedings, not civil actions authorized by statute and,
therefore, do not require the service of process. In Bol-
tuch, service of a citation was not necessary as the
application was made when it was filed in court. Id.,
301.
The plaintiff also claims that the court failed to prop-
erly distinguish the procedural differences between
§ 12-117a and the commencement of common-law
actions as explained in Boltuch. The plaintiff argues
that if ‘‘§ 12-177a required a plaintiff to commence a
tax appeal in the exact same manner as a typical civil
action, then the statute simply would have instructed
the taxpayer to ‘commence an action within two months
in the usual manner of a civil action.’ If that were the
case, then the service would have to occur within two
months, but the filing would happen afterward.’’ The
plaintiff’s argument is unavailing. The issue in this
appeal is whether the plaintiff’s appeal was timely com-
menced. A tax appeal is a civil action; such actions are
commenced when civil process is served.
The plaintiff failed to serve the town within two
months from the date notice of the board’s decision was
mailed. We, therefore, conclude that the court properly
granted the town’s motion to dismiss the appeal for
lack of subject matter jurisdiction.
The judgment is affirmed.
In this opinion the other judges concurred.
1
This case was heard in conjunction with Kettle Brook Realty, LLC v.
East Windsor, 158 Conn. App. 576, A.3d (2015). Although the two
cases are similar, they were considered separately and have been
reported separately.
2
General Statutes § 12-117a provides in relevant part: ‘‘Any 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. 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. . . .’’
3
In its brief on appeal, the plaintiff directs us to a statement that appears
at the bottom of the notice, to wit: ‘‘Appeals from the decision of the Board
of Assessment Appeals are to be filed with the Superior Court within two
(2) months of the Board’s action.’’ (Emphasis in original.) The plaintiff
contends that the statement is consistent with our Supreme Court’s directive
in Boltuch v. Rainaud, 137 Conn. 298, 77 A.2d 94 (1950). We need not
consider the statement at the bottom of the town’s notice. The plaintiff’s
appeal is controlled by § 12-117a.
4
Practice Book § 14-5 provides in relevant part: ‘‘For the purposes of
these rules, administrative appeals are those appeals taken pursuant to
statute from decisions of . . . boards . . . of any political subdivision of
the state, and include specifically appeals taken pursuant to . . . (3) . . .
enabling legislation.’’
5
Practice Book § 14-6 provides in relevant part: ‘‘For purposes of these
rules, administrative appeals are civil actions subject to the provisions
and exclusions of General Statutes § 4-183 et seq. and the Practice Book.
Whenever these rules refer to civil actions . . . the reference shall include
administrative appeals . . . .’’
6
In Mary Catherine Development Co. v. Glastonbury, 42 Conn. App. 318,
319–20, 679 A.2d 52 (1996), the sole issue raised was when the two month
appeal period commenced. General Statutes (Rev. to 1995) § 12-117a pro-
vided in pertinent part ‘‘may, within two months from the time of such
action, make application . . . .’’ (Emphasis added.)
7
Section 12-117a previously was codified as General Statutes § 12-118.
See Timber Trails Associates v. New Fairfield, 226 Conn. 407, 411 n.8, 627
A.2d 932 (1993) (legislative history of § 12-117a). With respect to the Superior
Court cases cited in this opinion, the relevant language from General Statutes
(Rev. to 1989) § 12-118 and continued through various Public Acts provided
as follows: ‘‘Any 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 . . . .’’
8
‘‘Any [such] application . . . shall be heard in the manner provided by
law for hearing written motions at short calendar session, or otherwise as
the court or judge may direct to dispose of the case with the least possible
delay. This indicates that notice of the pendency of the application or motion
should be given but that it may be of the most informal character and should
be prompt.’’ Boltuch v. Rainaud, supra, 137 Conn. 300. At the time Boltuch
was decided, the statute was codified as General Statutes § 8161 and is now
General Statutes § 52-418.