Punderson v. Town of Chittenden, 295-76

• Decision Date: 06 June 1978
• Docket Number: No. 295-76,295-76
• Citation: 388 A.2d 373,136 Vt. 221
• Court: Vermont Supreme Court
• Parties: Frank E. PUNDERSON, Jr. and Linda Ide Punderson v. TOWN OF CHITTENDEN.

Page 373

388 A.2d 373

136 Vt. 221

Frank E. PUNDERSON, Jr. and Linda Ide Punderson v. TOWN OF CHITTENDEN.

No. 295-76.

Supreme Court of Vermont.

June 6, 1978.

Motion for Rehearing Denied

Corsones & Hansen, Rutland, for plaintiffs.

Norman Cohen, Rutland, for defendant.

Before BARNEY, C. J., DALEY and LARROW, JJ., SHANGRAW, C. J. (Ret.), and KEYSER, J. (Ret.), Specially Assigned.

LARROW, Justice.

Appellants, property owners in the Town of Chittenden, were dissatisfied with the 1973 grand list of two pieces of real estate owned by them. On appeal, the Chittenden Board of Civil Authority continued one 19.8 acre parcel at a fair market value of $20,800, and reduced the other 15.2 acre parcel from $21,900 to $19,760. Appellants then filed an appeal with the Rutland Superior Court, claiming in substance that these appraisals exceeded fair market value, and the Town had not complied with the procedural requirements of 32 V.S.A. § 4404(c).

A motion to dismiss the § 4404(c) claim, filed by the Town, was denied by the presiding judge, by an order setting an evidentiary hearing on the issue. This hearing was held before a second presiding judge who, although terming it (quite obviously in error) a hearing on motion for summary judgment, made extensive findings of fact relating solely to the procedural actions of the Town and denied the claim on the general ground that there had been substantial compliance with the statute. Attempts at intermediate appeal were unsuccessful, and a third judge heard the case on the question of valuation, making findings and an order with respect thereto. Since there was then a final judgment under V.R.C.P. 54(b), the Pundersons took their appeal to this Court. Here they attack only the second order, claiming that substantial compliance should not have been found, and that the court below should have invoked the punitive provisions of 32 V.S.A. § 4404(c) by setting the property in the grand list at the amount set before the appealed change was made by the listers. That amount, the 1972 grand list valuation, for no apparent reason is not set out in either the pleadings or the extensive findings below. Apart from supporting the appealed order on the merits, the Town argues a lack of prejudice to the appellants because its motion to dismiss should have been granted in the first instance. We will consider that contention first.

The Town's motion to dismiss was based upon a claimed lack of jurisdiction in the superior court to entertain, upon an appeal under 32 V.S.A. § 4461(a), any issues other than valuation and equalization. Although the Town has not appealed denial of its motion, it may assert error in such denial to support the judgment below, so long as it does not seek to enlarge its own rights or lessen those of its adversary. Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191, 57 S.Ct. 325, 81 L.Ed. 593 (1937). The argument is permissible, but not convincing.

32 V.S.A. § 4461(a) speaks of an appeal (to superior court) by "(a) taxpayer or the selectmen of a town aggrieved by a decision of the board of civil authority." (emphasis added). The Town would have us hold that the failure of the board, or the clerk, to follow required statutory procedures, as discussed at length infra, is not a "decision" that can be put into question by notice of appeal. It urges suit to recover taxes paid under protest as appellants' only remedy. See Devoid v. Town of Middlebury, 134 Vt. 69, 350 A.2d 349 (1975). Devoid impliedly approves such procedure, but does not make it exclusive. In addition, the Town argues that only questions of valuation and equalization may be tried de novo before the superior court, because 32 V.S.A. § 4467 imposes that limitation. We disagree. Another portion of § 4461(a) goes on to state:

An appeal to the director (then commissioner) shall be commenced by filing a notice of appeal setting forth briefly the grounds upon which the appeal is based, and, if it relates to the appraisal of real or personal property, a brief description of the property and its location. (emphasis added).

This language would be anomalous indeed if an appeal under § 4461 were to be construed as restricted solely to the question of valuation. Further, § 4461(b), when it speaks of a similar appeal by the town agent, refers to an appeal from any "action" of the board of civil authority. Absent any clear reason to do so, we should not construe words to have a different meaning than their plain and ordinary one. Grenafege v. Department of Employment Security, 134 Vt. 288, 290, 357 A.2d 118, 120 (1976). In this statute, "decision" and "action" seem to have similar import. The Town cites Monti v. Town of Northfield, 135 Vt. 97, 369 A.2d 1373 (1977), to buttress its contention, but that case does not do so. It merely holds that procedural defects before the board of civil authority are immaterial where the only issue on appeal, tried de novo, is valuation.

We turn, therefore, to the order appealed from, which concluded that there had been substantial compliance with the procedural requirements delineated in 32 V.S.A. § 4404(c). The Town's first argument is that these procedures are not mandatory, despite use of the word "shall." The rule it asserts is that "shall" is mandatory only when necessary to give effect to legislative intent. Whatever the force of that argument as it relates to procedures required to be taken by the town clerk, it cannot apply to procedures required to be taken by the board itself. An express sanction is provided for the situation "if the board does not carry out the...