Opinion
No. MMX-CV-10-5007941-S
August 9, 2011
MEMORANDUM OF LAW RE MOTION TO DISMISS NO. 137
The plaintiff, Kerry Marshall, owned a Dodge Intrepid until the car was destroyed in an accident in July 2000. On September 9, 2005, the Middlefield tax collector filed a certificate of correction that added the car to the 1997 grand list. That action prompted the plaintiff to file a federal lawsuit against the town and the tax collector. On December 5, 2008, the United States District Court for the District of Connecticut dismissed that federal lawsuit on the ground that it lacked subject matter jurisdiction. On January 12, 2010, the Second Circuit Court of Appeals affirmed the decision of the District Court by a summary order. The next month, on February 18, 2010, the plaintiff commenced this case by service of process on the defendants, the town of Middlefield, Tax Collector Anne Olszewski, and Tax Assessor Steven Hodge. The plaintiff brought this action by way of a five-count Complaint, dated January 25, 2010 ("Complaint"), for damages he allegedly sustained as a result of an improper tax demand of his Dodge Intrepid.
The District Court ruled that it lacked subject matter jurisdiction due to the Tax Injunction Act, 28 U.S.C. § 1341. Marshall v. Middlefield, United States District Court, Docket No. 3:07cv1079 (MRK) (D.Conn. December 5, 2010).
Counts One through Three are directed to the Tax Collector Anne Olszewski. Specifically, in Count One, the plaintiff alleges that Anne Olszewski willfully neglected to record and properly apply tax payments pursuant to General Statute § 12-144b. Counts Two and Three purport to allege constitutional violations. In Count Two, the plaintiff alleges that Olszewski deprived him of his right to equal protection under the Fourteenth Amendment to the U.S. Constitution and/or Article First, §§ 7 9 and Article XXI of the Amendments to the Connecticut Constitution. In Count Three, the plaintiff alleges a denial of unspecified rights under the First Amendment to the United States Constitution and/or Article First, §§ 4, 7, 9 of the Connecticut Constitution, respectively.
Count Four is directed toward Tax Assessor Steven Hodge, and purports to allege a violation of unspecified civil rights, as well as a violation of General Statute § 12-60. (Compl. Count Four ¶ 15.)
Count Five is directed toward the Town and incorporates the allegations of Counts One through Four. The plaintiff alleges that the Town deprived him of his right to equal protection in violation of state and federal law. All defendants now move pursuant to General Statutes § 12-117a to dismiss on the grounds that the plaintiff failed to exhaust his administrative remedies and failed to appeal the tax assessment to the Superior Court within one year under General Statutes § 12-119.
Section 12-119 provides: "When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court."
Actions challenging municipal tax assessments are subject to strict procedural requirements. "Where . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time, even by the court sua sponte, and may not be waived." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993).
"Connecticut provides multiple methods by which a taxpayer may contest property taxes: (1) the taxpayer may administratively appeal the assessment to a board of assessment appeals, and he may then appeal that decision to Connecticut Superior Court, under Conn. Gen. Stat. § 12-117a; or (2) the taxpayer may directly file an action in Connecticut Superior Court to claim that the property has been wrongfully assessed, under Conn. Gen. Stat. § 12-119." Marshall v. Town of Middlefield, 360 Fed.Appx. 227 (2nd Cir. 2010), citing Second Stone Ridge Coop. Corp. v. City of Bridgeport, 597 A.2d 326, 326 (1991). Because the plaintiff has failed to pursue either of these options this Court lacks subject matter jurisdiction.
The legislature has implemented a statutory scheme for the assessment of taxes on personal property, as well as a procedure for challenging those assessments. Pursuant to § 12-111, a taxpayer may administratively appeal an assessment to the local board of assessment appeals. Section § 12-111 provides in relevant part:
Any person . . . claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to the board of assessment appeals. Such appeal shall be filed, in writing, on or before February twentieth. The written appeal shall include, but is not limited to, the property owner's name, name and position of the signer, description of the property which is the subject of the appeal, name and mailing address of the party to be sent all correspondence by the board of assessment appeals, reason for the appeal, appellant's estimate of value, signature of property owner, or duly authorized agent of the property owner, and date of signature. The board shall notify each aggrieved taxpayer who filed a written appeal in the proper form and in a timely manner, no later than March first immediately following the assessment date, of the date, time and place of the appeal hearing . . . An appellant whose appeal will not be heard by the board may appeal directly to the Superior Court pursuant to section 12-117a.
Conn. Gen. Stat. § 12-111. A review of the Complaint reveals that the plaintiff does not allege that he pursued an administrative appeal pursuant to § 12-111.
The Connecticut Supreme Court has held that "where a statutory right of appeal from an administrative decision exists, an aggrieved party may not bypass the statutory procedure and instead bring an independent action `to test the very issue which the appeal was designed to test.'" Lacroix v. Board of Education, 199 Conn. 70, 77, 505 A.2d 1233 (1986); see also Polymer Resources Ltd. v. Keeney, 227 Conn. 545, 563, 630 A.2d 1304 (1993) (holding that even constitutional challenges to an agency's action will not circumvent the need to exhaust available administrative remedies).
The Superior Court has repeatedly held that the Court lacks subject matter jurisdiction to consider challenges to tax assessments where the plaintiffs have not exhausted their administrative remedies. See Kucej v. Town of Watertown, No. CV054006613S, 2005 WL 3047408 (Conn.Super.Ct. Nov. 1, 2005) (granting motion to dismiss on the basis that the Court lacked subject matter jurisdiction to hear plaintiff's appeal of the assessed value of real property where plaintiff failed to exhaust his administrative remedies by first obtaining a decision from the Board of Assessment Appeals); Zaccardo v. Berlin Tax Collector, No. CV 94-0463138S, 1994 WL 551179, at *2 (Conn.Super.Ct. Sept. 29, 1994) (granting motion to dismiss plaintiff's claim for improper assessment on a motor vehicle for three tax years where plaintiff failed to exhaust his administrative remedies in a timely fashion); Palmieri v. City of New Haven, No. X01CV98016601S, 2002 WL 522839, at *5-6 (Conn.Super.Ct. Mar. 18, 2002) (dismissing claims for lack of subject matter jurisdiction based on the plaintiff's failure to exhaust statutory remedies pursuant to § 12-111).
The plaintiff counters that § 12-119, not § 12-117a applies to this case because he is alleging that the assessment in question, the addition of his Dodge Intrepid to the 1997 grand list, was beyond the Middlefield tax collector's authority. He further argues that the accidental failure of suit statute, General Statutes § 52-592, saves his action because he timely filed a federal lawsuit challenging the assessment and the federal court dismissed that action for lack of jurisdiction.
"[Section] 12-119 allows a taxpayer to bring a claim that the tax was imposed by a town that had no authority to tax the subject property, or 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 . . . [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." (Emphasis in original; internal quotation marks omitted.) Pauker v. Roig, 232 Conn. 335, 340-41, 654 A.2d 1233 (1995).
While the defendants challenge whether the plaintiff's claims meet the criteria to qualify for an appeal under § 12-119, the court need not decide the issue because the plaintiff's appeal to the Superior Court would be untimely even if it qualified for consideration under that section. Section 12-119 provides that in order to challenge an assessment, a taxpayer must "make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation . . ."
It is undisputed that the plaintiff did not bring the present action within the one-year time period provided for by the statute. The face of the certificate of correction, attached to the plaintiff's complaint, is dated September 9, 2005. The plaintiff commenced this action over four years later, on February 18, 2010. The plaintiff argues, however, that the intervening federal lawsuit, ultimately dismissed for lack of jurisdiction, served to toll the one-year limitation on bringing an action under § 12-119. He points to General Statutes § 52-592, the accidental failure of suit statute, for the proposition that he had one year after the Second Circuit affirmed the dismissal of his case during which to bring the present action.
The plaintiff argues that the date shown on the correction form is not the true date on which the town filed the form. He points to a date stamp on a copy of the form that indicates the document was filed in federal court on June 9, 2008. Regardless of whether that date stamp from the federal court clerk's office is of any relevance, the court need not address the issue because even if the form had been completed on June 9, 2008, and backdated to 2005, the plaintiff's action would still be untimely.
Section 52-592(a) provides, in relevant part: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action has been dismissed for want of jurisdiction, . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ." The statute applies to actions commenced in the United States District Court for the District of Connecticut that are dismissed for want of jurisdiction. General Statutes § 52-592(d).
Even if the plaintiff had commenced his federal lawsuit within the time period allowed by § 12-119, the accidental failure of suit statute would not save the plaintiff's case. While administrative appeals are generally considered civil actions for purposes of our rules of practice, "an administrative appeal shall not be deemed an action for purposes of General Statutes . . . § 52-592 . . ." Practice Book § 14-6(b). The rules define an administrative appeal as "those appeals taken pursuant to statute from decisions of officers . . . of the state or of any political subdivision of the state . . ." Practice Book § 14-5. An appeal under General Statutes § 4-119 is an administrative appeal because it is an appeal taken pursuant to a statute, from a decision of an officer of a subdivision of the state.
See, also, Carbone v. Zoning Board of Appeals, 126 Conn 602, 607, 13 A.2d 462 (1940). "Statutes and special laws . . . fixing a rather brief time in which appeals may be taken to the courts from the orders and decisions of administrative boards are evidently designed to secure in the public interest a speedy determination of the issues involved; and to make it possible to proceed in the matter as soon as the time to take an appeal has passed if one has not been filed . . . Certainly the Legislature could not have intended by the provisions of [the accidental failure of suit statute] thus to place it in the power of any appellant to render nugatory the limits it had carefully set for appeals of this nature." Id., 607-08; see also Rafferty v. Woodbridge, Superior Court, judicial district of New Haven, Docket No. CV 95 0372895 (November 9, 1995, Zoarski, J.) [ 15 Conn. L. Rptr. 552] (accidental failure of suit statute does not save tax appeal taken under General Statutes § 12-117); Holloway Bros, Inc. v. Avon, 26 Conn.Sup. 164, 168, 214 A.2d 701 (1965) (accidental failure of suit statute does not save tax appeal taken under General Statutes § 12-107c(d)).
Since § 52-592 is not applicable to this case, and the plaintiff commenced this action well beyond the one-year limitation contained in § 12-119, the court lacks jurisdiction to hear the plaintiff's appeal.
Accordingly, the defendant's motion to dismiss is granted.
SO ORDERED.