Fairfield Merrittview Ltd. P'ship v. City of Norwalk

• Decision Date: 01 March 2016
• Docket Number: No. 19373.,19373.
• Citation: 133 A.3d 140,320 Conn. 535
• Court: Connecticut Supreme Court
• Parties: FAIRFIELD MERRITTVIEW LIMITED PARTNERSHIP v. CITY OF NORWALK et al.

320 Conn. 535

133 A.3d 140

FAIRFIELD MERRITTVIEW LIMITED PARTNERSHIP

v.CITY OF NORWALK et al.

No. 19373.

Supreme Court of Connecticut.

Argued Sept. 17, 2015.

Decided March 1, 2016.

James R. Fogarty, Old Greenwich, for the appellants (plaintiff et al.).

Daniel J. Krisch, with whom were Mario F. Coppola, corporation counsel, and Carolyn M. Colangelo, assistant corporation counsel, for the appellees (defendants).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

ROGERS, C.J.

This case concerns the standing requirements for maintaining a municipal property tax appeal. The plaintiffs, Fairfield Merrittview Limited Partnership (partnership) and Fairfield Merrittview SPE, LLC (LLC),¹ appeal from the judgment of the Appellate Court reversing the trial court's judgment that had sustained their property tax appeal and reduced the valuation of the LLC's property, for assessment purposes, by approximately $15 million. The Appellate Court reversed the judgment and remanded the case to the trial court with direction to dismiss the plaintiffs' appeal after agreeing with the defendant city of Norwalk city)² that the plaintiffs' appeal was void ab initio, due to the trial court's lack of subject matter jurisdiction, because the owner of the property at issue had not appeared in subsidiary administrative proceedings before the Board of Assessment Appeals of the City of Norwalk (board) and did not initiate the appeal to the court.³ Fairfield Merrittview Ltd. Partnership v. Norwalk,

149 Conn.App. 468, 477–78, 89 A.3d 417 (2014). The plaintiffs claim that the Appellate Court improperly reversed the trial court's judgment because the tax appeal to the trial court, although initially brought by a nonaggrieved party, the partnership, also was maintained by the LLC, which was an aggrieved party that properly had been added to the trial court proceedings by way of a promptly filed amended complaint. We agree with the plaintiffs and, accordingly, reverse the judgment of the Appellate Court.

The following facts and procedural history, which the parties do not dispute, are relevant to the appeal. The partnership and the LLC are related entities with common owners. The partnership acquired the property at issue, a commercial office complex, in 1994. It then transferred ownership of the property to the LLC in 2007. A deed evidencing this transfer was timely filed in the city's land records. On October 1, 2008, as part of a periodic city wide revaluation,⁴ the city's tax assessor; see footnote 1 of this opinion; set the fair market value of the property at $49,036,800. The assessor's field card inaccurately identifies the partnership as the owner of the property. The LLC challenged this assessment before the board pursuant to General Statutes § 12–111,⁵ but the board declined to reduce it. The board mailed a notice of no change, again inaccurately addressed to the partnership, to an attorney who was an authorized agent for both entities.

On July 1, 2009, the partnership filed an appeal from the board's action to the Superior Court pursuant to General Statutes § 12–117a.⁶ Therein, the partnership alleged that it was the owner of the property at issue on October 1, 2008, was aggrieved by the assessor's action and had appeared, unsuccessfully, before the board. Approximately one month later, on August 7, 2009, the partnership and the LLC filed an "Amended Appeal and Application" (amended appeal) with the trial court, naming both entities as plaintiffs and alleging that they both had owned the property on October 1, 2008. The amended appeal was unclear regarding which entity had appeared before the board.⁷

The plaintiffs' amended appeal was accompanied by a motion for permission to amend. The defendants did not object to that motion, and the trial court, Hon. A. William Mottolese, judge trial referee, ultimately granted it by summary order dated February 16, 2010. Thereafter, the defendants did not file a motion to dismiss contesting jurisdiction, but rather, filed an amended answer that left the plaintiffs to their proof on their allegations regarding which entity or entities had owned the property on October 1, 2008, and which entity or entities had appealed to the board.

A brief trial was held in December, 2011. During the trial, the plaintiffs submitted two deeds into evidence, thereby establishing the partnership's acquisition of the property in 1994 and its transfer of the property to the LLC in 2007. After the trial concluded, the parties submitted simultaneous posttrial briefs. In their brief, the defendants cited to the deeds in evidence and argued for the first time that the trial court lacked subject matter jurisdiction because the partnership, the party that had initiated the appeal to the court, did not own the property at the time of its assessment and, therefore, was not aggrieved and lacked standing to appeal pursuant to § 12–117a. The defendants acknowledged that the LLC owned the property on October 1, 2008, and that the appeal to the court had been amended to add the LLC as a plaintiff. They did not argue that the LLC lacked standing to bring a § 12–117a appeal, that the addition of the LLC as a party was in any way defective or that the trial court improperly had permitted the amendment of the complaint.⁸

In an August 6, 2012 memorandum of decision, the trial court, Hon. Aaron W. Aronson, judge trial referee, prior to sustaining the plaintiffs' appeal and reducing the defendants' valuation of the subject property from $49,036,800 to $34,059,753, rejected the defendants' jurisdictional claim. The court referenced the 2007 deed conveying the property from the partnership to the LLC and reasoned that, "[a]s of October 1, 2008, at least one of the two plaintiffs named in the amended [appeal] was the record owner of the [property], which is sufficient to provide standing to maintain this appeal." The defendants' appeal to the Appellate Court followed.

In their brief to the Appellate Court, the defendants again contested the trial court's jurisdiction to hear the plaintiffs' appeal, but expanded upon their original argument. In addition to arguing that the partnership, as a former owner, was not aggrieved by the city's assessment of the property and could not bring an appeal to the court pursuant to § 12–117a, the defendants contended further that the LLC, the actual owner of the property, had not appeared before the board and that this omission was fatal to establishing jurisdiction. Fairfield Merrittview Ltd. Partnership v. Norwalk, Conn. Appellate Court Records & Briefs, February Term, 2014, Defendants' Brief, pp. 13–14, 16. Citing to the plaintiffs' original and amended appeals, the defendants claimed that it was the partnership, instead, that had appeared before that body. Id., at pp. 13, 15. The defendants also stated that the LLC had been added as a party "long after" the period in which to bring an appeal to the trial court had expired, but did not elaborate or point to any evidence in support of this claim.⁹ Id., at p. 15. Again, in the Appellate Court, the defendants did not argue that the trial court improperly had permitted the amendment of the complaint to add the LLC as a party plaintiff.

In response, the plaintiffs argued that the amendment of the court appeal to add the LLC as a party was filed within thirty days of the return date and, therefore, was an amendment as of right that related back to the filing of the initial appeal; see General Statutes § 52–128 ; Practice Book § 10–59 ; or, effectively, was the discretionary addition of an interested party having standing to pursue the appeal. Fairfield Merrittview Ltd. Partnership v. Norwalk, Conn. Appellate Court Records & Briefs, supra, Plaintiffs' Brief pp. 10–11. The plaintiffs contended further that the defendants, by waiting until after the trial had concluded to raise the issue of subject matter jurisdiction, had engaged in an unfair ambuscade that had prevented the plaintiffs from responding effectively to that question. Id., at pp. 13–16, 21–22. Finally, according to the plaintiffs, the partnership and the LLC essentially were the same entity, having undergone a change of name and structure but retaining the same beneficial owners. Id., at pp. 16–17.

The Appellate Court agreed with the defendants that the trial court lacked subject matter jurisdiction over the plaintiffs' appeal. Fairfield Merrittview Ltd. Partnership v. Norwalk, supra, 149 Conn.App. at 475, 89 A.3d 417. The Appellate Court first rejected the plaintiffs' contention that they were, in fact, the same legal entity, citing a lack of evidence in the record in that regard; id., at 476, 89 A.3d 417 ; as well as other circumstances indicating that the two were distinct entities. Id., at 476 n. 7, 89 A.3d 417. It further disagreed that the defendants' jurisdictional challenge was untimely and that the plaintiffs had had an inadequate opportunity in which to respond to it. Id., at 477, 89 A.3d 417. Finally, the Appellate Court concluded, both the appeal to the board and the appeal to the trial court were brought by the partnership, a party which lacked standing due to its nonownership of the property at issue. Accordingly, the Appellate Court reasoned, the appeal was void, ab initio, and should have been dismissed by the trial court.¹⁰ Id. The Appellate Court did not address the plaintiffs' contention that they properly had amended their complaint to include the LLC as a plaintiff, apparently concluding that the alleged absence of the LLC in the proceedings before the board was a fatal jurisdictional defect.¹¹

Subsequent to the issuance of the Appellate Court's decision, the plaintiffs filed a motion for reconsideration en banc, wherein they claimed that the court's decision was based on a material factual error, namely, that the partnership, and not the LLC, was the party that had filed the appeal to the board. The plaintiffs also reiterated their claim that the appeal to the...