Chestnut Point Realty, LLC v. Town of E. Windsor

158 Conn.App. 565

119 A.3d 1229

CHESTNUT POINT REALTY, LLC

v.TOWN OF EAST WINDSOR.

No. 36819.

Appellate Court of Connecticut.

Argued April 8, 2015.

Decided July 21, 2015.

Jonathan M. Starble, for the appellant (plaintiff).

Laura A. Cardillo, Hartford, with whom, on the brief, was Tiffany K. Spinella, Hartford, for the appellee (defendant).

LAVINE, BEACH and PRESCOTT, Js.

Opinion

LAVINE, J.

The plaintiff, Chestnut Point Realty, LLC, appeals from the judgment of the trial court dismissing its real estate tax appeal.¹ On appeal to this court, the plaintiff claims that the trial court improperly concluded that General Statutes § 12–117a² required it to serve its appeal on the defendant, the Town of East Windsor (town), within two months following notice of a decision by its Board of Assessment Appeals (board). More specifically, the plaintiff claims that (1) it met the filing and service requirements of § 12–117a and (2) the court failed to distinguish properly the procedural differences between § 12–117a and common-law civil actions. We affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. The plaintiff is the owner of real property located at 171 Main Street in the town. For purposes of the town's grand list of October 1, 2012, the town assessor valued the plaintiff's property at $1,829,330. The plaintiff appealed from the assessment to the board and appeared at a hearing to request a reduction in the assessment. On April 29, 2013, the board denied the plaintiff's request. On May 1, 2013, the assessor mailed notice of the board's decision to the plaintiff.³

On June 28, 2013, the plaintiff filed an application in the Superior Court that was titled “Complaint,” bore a return date of July 23, 2013, and was accompanied by a citation and recognizance. On July 10, 2013, a marshal served the application, citation, and recognizance on the town and, on July 17, 2013, filed the return of service in court. On August 14, 2013, the town filed a motion to dismiss the appeal on the ground that the court lacked subject matter jurisdiction because the plaintiff had failed to serve the appeal within two months from the date notice of the board's decision was mailed. The parties appeared before the court to argue the town's motion to dismiss. The court issued a memorandum of decision on April 14, 2014, in which it granted the motion, thus dismissing the plaintiff's tax appeal.

The court found that the plaintiff had filed a citation and complaint in the Superior Court in the judicial district of Hartford on June 28, 2013, but did not serve the town with the citation and complaint until July 10, 2013, which is beyond the two month period, commencing May 1, 2013, to take an appeal as required by § 12–117a. The issue decided by the court was whether “the act of filing an application and citation with the court effects an appeal from the [board] pursuant to § 12–117a.” The court concluded that filing an application and citation in court does not commence a tax appeal.

In its memorandum of decision, the court noted that appeals from “administrative agencies exist only under statutory authority.... A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.” (Citations omitted; internal quotation marks omitted.) Raines v. Freedom of Information Commission, 221 Conn. 482, 489, 604 A.2d 819 (1992). Moreover, the court stated, a tax appeal is a civil action. See Practice Book §§ 14–5⁴ and 14–6⁵ ; see also Branford v. Santa Barbara,

294 Conn. 803, 815, 988 A.2d 221 (2010) (rules of practice define tax appeal as civil action). The court concluded that the plaintiff's delivery of an application and citation to the Superior Court did not commence the appeal process because the appeal process begins with the service of the citation and complaint on the town. Without proper service of process the town would have no way of knowing that the plaintiff had brought an action against it. The court granted the town's motion to dismiss because the plaintiff failed to serve the town within the two month period for taking an appeal pursuant to § 12–117a. The plaintiff appealed to this court.

On appeal, the plaintiff claims that the court improperly concluded that § 12–117a requires the owner of property to serve the town with the complaint and citation within two months of the board's notice. The plaintiff's claim requires us to construe the statute. It is well established that statutory construction is a question of law and our review of such questions is plenary. See Tuxis Ohr's Fuel, Inc. v. Administrator, Unemployment Compensation Act, 127 Conn.App. 739, 743, 16 A.3d 777 (2011), aff'd, 309 Conn. 412, 72 A.3d 13 (2013).

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) PJM & Associates, LC v. Bridgeport, 292 Conn. 125, 134, 971 A.2d 24 (2009). We discern no ambiguities in the language of the statute, and therefore we do not resort to extratextual evidence.

We begin with the language of the statute at issue. Branford v. Santa Barbara, supra, 294 Conn. at 810, 988 A.2d 221. Section 12–117a provides in relevant part: “Any person ... claiming to be aggrieved by the action of the ... board of assessment appeals ... 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 ... which shall be accompanied by a citation to such town ... to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at thesame time and served and returned in the same manner as is required in case of a summons in a civil action. ” (Emphasis added.)

“Appeals to courts from administrative agencies exist only under statutory authority.... A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.... Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal.” (Internal quotation marks omitted.) Southern New England Telephone Co. v. Board of Tax Review,

31 Conn.App. 155, 160–61, 623 A.2d 1027 (1993).

The salient language of the statute requires that a person claiming to be aggrieved by the assessor's valuation may, within two months, make application to the Superior Court in the nature of an appeal, which shall be served and returned in the same manner as a summons in a civil action. Nothing in the statute abrogates the usual requirements that are applicable to the commencement of a civil action.

As the trial court properly noted, a tax appeal is a civil action. See Branford v. Santa Barbara, supra, 294 Conn. at 815, 988 A.2d 221. Civil actions are commenced by service of process. General Statutes § 52–45a ; Rios v. CCMC Corp., 106 Conn.App. 810, 820, 943 A.2d 544 (2008) ( “[l]egal actions in Connecticut are commenced by service of process” [internal quotation marks omitted] ). General Statutes § 52–91 provides in relevant part: “There shall be one form of civil action. The first pleading on the part of the plaintiff shall be known as the complaint....” See also Board of Education v. Tavares Pediatric Center, 276 Conn. 544, 557, 888 A.2d 65 (2006) ( “title 52 correspondingly defines a civil action, without equivocation, as be [ing] commenced by legal process” [internal quotation marks omitted] ).

As the relevant statutes and rules of practice provide, and as our Supreme Court has held, an administrative appeal is a civil action. A civil action is commenced by service of process. “[A] writ of summons is a statutory prerequisite to the commencement of a civil action.... A writ of summons is analogous to a citation in an administrative appeal ... it is an essential element to the validity of the jurisdiction of the court.” (Citations omitted; internal quotation marks omitted.) New England Road, Inc. v. Planning & Zoning Commission, 308 Conn. 180, 190, 61 A.3d 505 (2013). The need for and purpose of a citation was addressed by our Supreme Court in Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 340, 170 A.2d 732 (1961). A citation “is a command to a duly authorized officer to summon the commission and all parties having an interest adverse to the appellant to appear in court on a specified day to answer the complaint. The summons is to be by service of true and attested copies of the complaint and the citation in the manner provided for the service of civil process.... The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command.” (Citation omitted.) Id., at 338–39, 170 A.2d 732.

The plaintiff contends on appeal that there is nothing in the statute that links the two month deadline with service of process because § 12–117a is described in terms of an application and an appeal rather than a complaint. We disagree. The statute provides that an application shall be made in the nature of an appeal and that the appeal shall be served and returnable as required in the case of a summons in a civil action. The plaintiff, however, has isolated the words “make application” from the...