Andover Ltd. Partnership I v. Board of Tax Review of Town of West Hartford

• Decision Date: 14 March 1995
• Docket Number: No. 15081,15081
• Citation: 655 A.2d 759,232 Conn. 392
• Court: Connecticut Supreme Court
• Parties: ANDOVER LIMITED PARTNERSHIP I v. BOARD OF TAX REVIEW OF the TOWN OF WEST HARTFORD.

Page 759

655 A.2d 759

232 Conn. 392

ANDOVER LIMITED PARTNERSHIP I v. BOARD OF TAX REVIEW OF the TOWN OF WEST HARTFORD.

No. 15081.

Supreme Court of Connecticut.

Argued Jan. 5, 1995.

Decided March 14, 1995.

I. Milton Widem, with whom was Ann M. Siczewicz, Hartford, for appellant (plaintiff).

Elizabeth Dee Bailey, Asst. Corp. Counsel, with whom, on the brief, was William Mastrogiovanni, Jr., Legal Intern, for appellee (defendant).

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and PALMER, JJ.

BERDON, Associate Justice.

The sole issue in this appeal is whether, in a tax assessment appeal under General Statutes § 12-117a, the plaintiff's designation of the board of tax review of the town of West Hartford instead of the town of West Hartford as the defendant deprived the trial court of subject matter jurisdiction. We conclude that it did not and therefore reverse the judgment of the trial court.

The following facts are undisputed. The plaintiff, Andover Limited Partnership I, commenced this action to challenge a decision by the board of tax review of the town of West Hartford (board) affirming a 1989 tax assessment on improved real property owned by the plaintiff and located at 630 Oakwood Avenue in the town of West Hartford (town). On July 24, 1990, the plaintiff filed an application with the trial court appealing the decision. ¹ The application included a citation ² and recognizance that the plaintiff had served upon the assistant town clerk pursuant to General Statutes § 52-57(b)(1), ³ naming the "Board of Tax Review of the Town of West Hartford" as the defendant. On October 9, 1990, the plaintiff amended the appeal to include the 1990 assessment of the property at 630 Oakwood Avenue. The plaintiff amended the appeal again on October 17, 1991, and November 6, 1992, to include assessments for the years 1991 and 1992, respectively.

The town filed an appearance on August 21, 1990, "for all defendants" (emphasis in original) in the action and subsequently filed an answer to the complaint on August 28, 1991, that was signed "Defendant, Town of West Hartford." Two years later, on September 20, 1993, the town filed a motion to dismiss pursuant to Practice Book § 143, ⁴ claiming that the court lacked subject matter jurisdiction to hear the case. The town contended that § 12-117a requires a plaintiff to include the town in the citation and that the plaintiff's failure to name the town, rather than the board, as the defendant constituted a defect that deprived the court of matter jurisdiction. On September 24, 1993, the plaintiff filed a request for leave to amend the citation and recognizance pursuant to General Statutes § 52-123 ⁵ in order to name the town, rather than the board, as defendant. The town objected to the request on October 8, 1993, contending that § 52-123 is not available to cure a defect that implicates subject matter jurisdiction.

The trial court strictly construed § 12-117a to require that the citation name the town, and determined that the plaintiff's failure to do so constituted a jurisdictional defect that was not curable by amendment. Accordingly, the trial court granted the town's motion to dismiss. The plaintiff appealed from the decision of the trial court to the Appellate Court, and the appeal was transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c).

In order to determine whether the plaintiff's failure to name the town as the defendant in its citation was fatal to its cause of action, ⁶ despite proper service of the citation upon the assistant town clerk of West Hartford, we must look to the controlling statutes. Because statutory interpretation is a question of law, our review is de novo. See, e.g., Lussier v. Dept. of Transportation, 228 Conn. 343, 350-53, 636 A.2d 808 (1994); Pack v. Burns, 212 Conn. 381, 384-86, 562 A.2d 24 (1989).

Section 12-117a requires that in order to appeal from a decision of a town's board of tax review, the aggrieved party must "make application ... to the superior court for the judicial district in which such town ... is situated, which shall be accompanied by a citation to such town ... to appear before said court." Although the plaintiff acknowledges that it did not strictly comply with the statutory requirements, it contends that the error was a nonfatal misnomer that constitutes a circumstantial mistake, error or defect and is curable by § 52-123. The town, however, argues that because the plaintiff named the wrong party as the defendant in its citation, the error constituted a defect that deprived the court of subject matter jurisdiction, and the action was properly dismissed.

Section 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 marks omitted.) Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 623, 642 A.2d 1186 (1994); 1 E. Stephenson, Connecticut Civil Procedure (2d Ed.1970) § 35, pp. 137-38 n. 608. The statute applies broadly to any writ issued in a civil action, and a citation, by definition, is a writ. ⁷ Therefore, in this civil action, the plaintiff may invoke § 52-123 to amend the citation at issue if its error may be construed as "circumstantial."

We previously have explained that § 52-123 replaces the common law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer or misdescription in an original writ, summons or complaint. Pack v. Burns, supra, 212 Conn. 381, 562 A.2d 24. In Pack, the plaintiff initially named as the 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. ⁸ We 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." (Internal quotation marks omitted.) Id. at 384-85, 562 A.2d 24. In Pack, we first considered whether the plaintiff had intended to sue the proper party or whether it had erroneously misdirected its action. Id. at 385, 562 A.2d 24; see also Motiejaitis v. Johnson, 117 Conn. 631, 636, 169 A. 606 (1933) (plaintiff permitted to amend writ after verdict, but before judgment to properly name intended defendant). Second, we considered three factors to determine whether the error was a misnomer and therefore a circumstantial defect under § 52-123: (1) whether the proper defendant had actual notice of the institution of the action; (2) whether the proper defendant knew or should have known that it was the intended defendant in the action; and (3) whether the proper defendant was in any way misled to its prejudice. Pack v. Burns, supra, 212 Conn. at 385, 562 A.2d 24. We concluded in Pack that the plaintiff was entitled to amend the named defendant under § 52-123 because the plaintiff had intended to sue the commissioner, and because the commissioner, who was not prejudiced by the error, knew he was the intended defendant. Id. at 385-86, 562 A.2d 24.

Similarly, in Lussier v. Dept. of Transportation, supra, 228 Conn. 343, 636 A.2d 808, we permitted the plaintiff to amend a summons that misnamed the intended defendant. In Lussier, the plaintiff named the "State of Connecticut, Department of Transportation" as the defendant on the civil summons form instead of the commissioner, as required by § 13a-144. The commissioner was properly named in the complaint, however, and was provided with proper notice of the action. As in the case before us, the plaintiff argued that it merely had stated the defendant's name incorrectly. The defendant argued that the wrong entity had been named as defendant and that the court, therefore, had no subject matter jurisdiction. Id. at 350, 636 A.2d 808. We distinguished these two categories of error, stating that "[t]he first, involving a defendant designated by an incorrect name, is referred to as a 'misnomer.' It is a circumstantial defect anticipated by General Statutes § 52-123 that can be cured by amendment. A misnomer must be distinguished from a case in which the plaintiff has misconstrued the identity of the defendant, rather than the legal nature of his existence. When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant." Id.; see also 1 E. Stephenson, supra, § 105e, p. 433 (designation of right party in way which may be inaccurate but which is still sufficient for identification purposes may be amended).

Furthermore, we recently determined that an error in the process that failed to comply with a statutory mandate may be corrected under a remedial statute. In Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 618, 642 A.2d 1186, the plaintiffs, who erroneously specified a return date that fell on a Thursday, sought to amend the return date to fall on a Tuesday, as required under General Statutes § 52-48. ⁹ We concluded that amendment of process to correct a return date must be permitted as a remedial measure under General Statutes § 52-72. ¹⁰ Id. at 623, 642 A.2d 1186. In addition, we concluded that the language "[a]ny court shall allow a proper amendment to civil process" is mandatory rather than directory and we directed the trial court to grant the plaintiff's request to amend process. Id. at 626, 642 A.2d 1186. Section 52-123 is a comparably worded, remedial statute to which the same principles apply. 1 E. Stephenson, supra, § 35, pp. 137-38 n. 608.

We, therefore, have refused to...