Opinion
No. CV 08 4008423
July 10, 2009
MEMORANDUM OF DECISION
FACTS
This tax appeal, filed on May 15, 2008, is from the decision of the board of assessment appeals of Stonington denying a reduction in the assessed value of property located at 72 Jerry Brown Road in Mystic and owned by the plaintiffs, Robert Valenti and Ferdinand Valenti a/k/a Fred Valenti. The plaintiffs allege the following facts in their complaint. On October 1, 2007, the subject property was assessed. Based upon its fair market value as established by the assessor as a part of the 2007 revaluation, the assessor set the value for taxation at 70 percent pursuant to General Statues § 12-62a in the amount of $6,365,000, even though the property's fair market value at 100 percent was only $4,200,000. Since the assessor valued the property at an amount greater than its fair market value, the plaintiffs appealed to the board of assessment appeals of Stonington claiming that they "were aggrieved by the action of the [a]ssessor and offered to be sworn [in] and to answer all questions concerning the [p]roperty." The board did not reduce the property's assessed value, which exceeds its "true and actual value."
Count one is brought pursuant to General Statutes § 12-117a from the denial of the plaintiffs' appeal by the board. Count two is brought under General Statutes § 12-119. Count two incorporates paragraphs one through four of the first count and further alleges that "[a] tax was or will soon be laid on the [p]roperty, which tax is computed on assessments which . . . [is] manifestly excessive and could not have been arrived at [by the assessor] except by disregarding the statues for determining the valuation of the [p]roperty. Taxes on the October 1, 2007 Grand List have not been paid." The plaintiffs seek, inter alia, a reduction in the valuation of the property and the amount of tax owed as a result of the wrongful assessment.
On January 20, 2009, the defendant, the town of Stonington, filed a motion to dismiss count one for a lack of subject matter jurisdiction on the ground that the plaintiffs failed to appear before the board of assessment appeals as required by General Statutes § 12-113, which means that they are not aggrieved, have not exhausted their administrative remedies and met the statutory requirements of § 12-117a. In support of its motion, the defendant submitted a memorandum of law, the affidavit of Stephen Palmer who is the board's secretary, a copy of the plaintiffs' petition to the board dated February 11, 2008 and a copy of the letter from the board to Robert Valenti notifying him of the hearing scheduled for March 6, 2008. On May 20, 2009, the plaintiffs filed a memorandum of law in opposition. The matter was heard at short calendar on May 26, 2009.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). "Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n. 6, 826 A.24 1102 (2003). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
In support of its motion to dismiss for a lack of subject matter jurisdiction, the defendant argues that the plaintiffs' failure to have appeared in person at the scheduled March 6, 2008 hearing before the board as required by General Statutes § 12-113 precluded the board from reducing the plaintiffs' assessed value. The defendant maintains that as a result of their failure to have appeared, the plaintiffs are not aggrieved, have not exhausted their administrative remedies and met the statutory requirements of § 12-117a. In response the plaintiffs counter that they were on vacation during the time the notice was sent to them about the scheduled hearing. Upon their return, the plaintiffs claim that they telephoned the assessor who told them that it was too late and they had missed their opportunity to appear. The plaintiffs argue that their failure to appear before the board does not deprive the court of subject matter jurisdiction in this appeal.
The plaintiffs rely on Morris v. New Haven, 77 Conn. 108, 58 A. 748 (1904), for the proposition that this court has subject matter jurisdiction of their appeal. In that case, the applicant alleged that the additional assessment of ten percent on her property was illegal. Id., 108. She appealed to the board of relief, but failed to appear before it. Id., 109. The board refused to strike the illegal assessment and dismissed her application. Id. The Supreme Court stated: "Waiving the question as to what effect a failure to pursue an appeal before the board of relief may have upon the relief which the Superior Court may properly grant, the mere failure to appear cannot, in this case, deprive the applicant of her right to be heard upon the claimed illegality of this assessment . . . [T]he applicant is entitled to a decision of the Superior Court, after the action of the board of relief has made the alleged illegal assessment binding upon her, and it is immaterial, as affecting this right, what reason may have induced the board to take the action it did." Id. In other words, the court held, that the mere fact that she did not appear before the board of relief would not deprive the Superior Court of considering the validity of the assessment of which she complained. Id.
The plaintiffs also rely on a more recent case, Kucej v. Board of Tax Review, Superior Court, judicial district of Fairfield, Docket No. CV 91 0283353 (October 1, 1993, Spear, J.) [ 10 Conn. L. Rptr. 133] ( 8 C.S.C.R. 1140) in which the taxpayer appealed the action of the board of tax review of the town of Trumbull "dismissing his application for relief from the alleged wrongful assessment of fifteen separate parcels of land owned by him." In his affidavit, Kucej testified that "he attempted to appear, but due to a family emergency, he was unable to keep the assigned hearing date and was denied a continuance by the Board." The court concluded that his failure "to appear before the Board pursuant to General Statutes § 12-113 [did not] [deprive] the court of subject matter jurisdiction." The court in Kucej relied on the Morris case.
The defendant, on the other hand, relies on Posick v. Beacon Falls, Superior Court, judicial district of Waterbury, Docket No. CV 96 054749 (November 22, 1996, Flynn, J.). Therein, the town of Beacon Falls moved to dismiss the tax appeal on the ground that the plaintiff had not appeared before the board of assessment appeals as authorized by General Statutes § 12-111. In addition, pursuant to § 12-113, the court maintained that "a property owner must appear before the Board of Assessment Appeals and pursue administrative remedies before the Board . . ." Based on the facts in Posick, the court reasoned that "the plaintiff could not be aggrieved by the failure of an assessment appeals [the board] to grant assessment relief, when by law, the Board was prohibited from granting such relief because of his nonappearance." As a result, the court stated: "Such aggrievement could not be shown where the denial of the administrative agency was statutorily mandated. Here the plaintiff was obliged to comply [with] the procedures set forth in . . . § 12-113. He did not attend either of the two scheduled Board of Assessment meetings. He has also failed to provide the Board . . . any evidence that the valuation and tax assessment of his property was excessive or unlawful. He has failed to exhaust administrative remedies." The court granted the motion to dismiss for lack of subject matter jurisdiction.
Notwithstanding the divergent decisions of the Superior Court on the issue of whether this court has subject matter jurisdiction of the present appeal, "a trial court is bound by Supreme Court precedent." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996); see also Ventura v. Veterans of Foreign Wars No. 269 Inc., Superior Court, judicial district of Litchfield, Docket No. CV 94 0066816 (May 2, 1995, Walsh, J.) ( 14 Conn. L. Rptr. 226, 228) ("Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court"). Until the Supreme Court overrules the holding in Morris v. New Haven, supra, 77 Conn. 108, this court is bound to follow that precedent. Accordingly, the defendant's motion to dismiss count one is denied.