Opinion
No. CV-04-0104527
September 2, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS
On May 11, 2004, the plaintiff filed an appeal in the Superior Court, challenging the decision of the Board of Assessment Appeals of East Haddam ("Board") dismissing the plaintiff's appeal from a tax assessment and valuation on the plaintiff's property. The plaintiff alleges that it is the owner of land located at 15 Lumberyard Road in East Haddam and that on October 10, 2003, it filed a written application with the town assessor to have a portion of its property classified as open space, pursuant to General Statutes § 12-107e. On November 24, 2003, the town assessor denied the plaintiff's application. The property was then valued as having a fair market value of $2,354,020, which resulted in a tax assessment of 70 percent of the actual value, or $1,647,810. Pursuant to General Statutes § 12-111, the plaintiff appealed the denial of its application to the Board. On March 15, 2004, the Board issued a letter to the plaintiff, stating that it would not conduct an appeal hearing because the subject property was a commercial property, valued in excess of $500,000. The letter further indicated that the plaintiff could appeal the denial to the Superior Court.
General Statutes § 12-11 provides in pertinent part that "[a]ny person . . . claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to the Board of assessment appeals . . ."
Pursuant to General Statutes § 12-117a, the plaintiff filed a two-count appeal in the Superior Court. In count one, the plaintiff sought relief under General Statutes § 12-107e(d), claiming that it was aggrieved by the assessor's refusal to classify its property as open space. This, the plaintiff claims, resulted in a higher assessment and valuation of its property, in violation of General Statutes § 12-63(a). In count two, the plaintiff incorporated the allegations of count one and sought relief from the city's assessment, pursuant to General Statutes § 12-119.
General Statutes § 12-117a provides, in relevant part:
Any person . . . claiming to be aggrieved by the action of the Board of tax review or the Board of assessment appeals, as the case may be, in any town or city 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 for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city 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. The authority issuing the citation shall take from the applicant a bond or recognizance to such town or city, with surety, to prosecute the application to effect and to comply with and conform to the orders and decrees of the court in the premises . . .
General Statutes § 12-107e(d) provides: "Any person aggrieved by the denial by an assessor of any application for the classification of land as open space land shall have the same rights and remedies for appeal and relief as are provided in the general statutes for taxpayers claiming to be aggrieved by the doings of assessors or Boards of assessment appeals."
General Statutes § 12-63(a) provides in part that "[t]he present true and actual value of land classified . . . as open space land pursuant to section 12-107e shall be based upon its current use without regard to neighborhood land use of a more intensive nature, provided in no event shall the present true and actual value of open space land be less than it would be if such open space land comprised a part of a tract or tracts classified as farm land pursuant to section 12-107c. The present true and actual value of all other property shall be deemed by all assessors and Boards of assessment appeals to be the fair market value thereof and not its value at a forced or auction sale."
General Statutes § 12-119 provides in relevant part that "[w]hen it is claimed 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 . . . 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 . . ."
The defendant has now moved to dismiss, claiming that the court lacks jurisdiction. As grounds for the motion, the defendant argues that the court should dismiss the entire appeal due to insufficiency of process or that, at a minimum, it should dismiss count one because the plaintiff failed to exhaust its administrative remedies.
"A motion to dismiss tests . . . whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, essentially asserting that [a party] cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "It is a settled principle of administrative law that if an adequate remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter . . . [W]here a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such statutory procedure. [B]ecause the exhaustion doctrine implicates subject matter jurisdiction, [a trial court] must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff['s] claim." (Citations omitted; internal quotation marks omitted.) Stepney LLC v. Fairfield, 263 Conn. 558, 563, 821 A.2d 725 (2003). "The motion to dismiss shall [also] be used to assert . . . insufficiency of service of process." Practice Book § 10-31.
The defendant first contends that the court should dismiss the entire appeal because of insufficiency of process in that process was made returnable to the court on a Wednesday, rather than a Tuesday, as required by General Statutes § 52-48(a). The plaintiff counters that it has cured the defect in the return by filing a motion to amend the summons and serving the amended writ and process on the defendant. While it is true that "an improperly specified return date affects the court's jurisdiction"; Carlson v. Fisher, 18 Conn.App. 488, 495, 558 A.2d 1029 (1989); General Statutes § 52-72(a) expressly gives a party the opportunity to cure the defect. Section 52-72(a) provides: "Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement."
General Statutes § 52-48(a) provides that "[p]rocess in civil actions, including transfers and applications for relief or removal, but not including summary process actions, brought to the Superior Court may be made returnable on any Tuesday in any month . . ."
In Concept Associates, Ltd v. Board of Tax Review, 229 Conn. 618, 642 A.2d 1186 (1994), the plaintiff had erroneously returned process to the court on a Thursday and sought to amend the return date to a Tuesday, pursuant to § 52-72. Id., 620. The Supreme Court noted that "the purpose of § 52-72 is to provide for amendment of otherwise incurable defects that go to the court's jurisdiction . . . The apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date." (Citation omitted; internal quotation marks omitted.) Id., 623. The Court therefore held that "the language [in § 52-72 that any] court shall allow a proper amendment to civil process which has been made returnable to the wrong return day is mandatory rather than directory . . ." (Internal quotation marks omitted.) Id., 626. Based on this interpretation of the statute, the Court held that the plaintiff's motion to amend the return date should be granted and that it should be permitted to proceed with the complaint. Id.
In this case, the plaintiff filed a request for leave to amend the statement of appeal, pursuant to Practice Book §§ 10-59 through 10-61. The defendant did not object to the plaintiff's request. The plaintiff corrected the summons and process and served the amended documents on the defendant and all interested parties of record, in accordance with General Statutes §§ 52-72(b), 52-54, 52-57 and 12-117a. The marshal's return indicated that the original amended citation, recognizance and amended statement of appeal were served on the defendant on June 14, 2004. Practice Book § 10-60(b) provides in part that if there is no objection to the amendment made "within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been by filed by consent of the [defendant]." Thus, because the plaintiff timely corrected the return date, without objection, the court has jurisdiction over this case.
The defendant also argues that count one should be dismissed because the plaintiff failed to exhaust its administrative remedies. It reasons that count one of the plaintiff's appeal is directed at the valuation of its property, while its appeal to the Board was limited to the denial of its application for classification as open space. Thus, the defendant argues, the plaintiff has failed to exhaust its administrative remedies in that it did not appeal the assessor's valuation to the Board before bringing an appeal to the Superior Court.
The defendant's motion to dismiss was directed, however, at the original appeal, dated May 10, 2004. The defendant did not seek to amend its motion so as to address the allegations of the plaintiff's amended appeal. A reasonable reading of count one of the amended appeal demonstrates that the plaintiff is contesting the assessor's denial of its application for classification as open space, pursuant to § 12-107e(d). Its allegations concerning improper valuation are derivative of its claim of an improper classification and serve to demonstrate the manner in which it claims to have been aggrieved by the denial of its application for classification as open space.
Nevertheless, this court may determine whether the defendant's motion to dismiss should be granted as to the amended appeal. Practice § 10-61 provides in relevant part that "[i]f the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading."
"The aforesaid denial of classification application resulted in a valuation of the Property that was not property seventy percent (70%) of the Property's value of the Assessment Date, but was excessive, disproportionate, unlawful and in violation of the mandatory requirements of C.G.S. § 12-63(a) with respect to valuation and assessment." (Plaintiff's Amended Appeal, Count One, ¶ 15.)
In light of the plaintiff's amended appeal, the defendant's motion to dismiss count one is denied without prejudice to its right to file any appropriate dispositive motions directed at the amended appeal.
Jonathan E. Silbert, Judge