JBRV LLC v. Town of Stonington (2014)

MEMORANDUM OF DECISION RE PLAINTIFFS' AND DEFENDANT'S CROSS MOTIONS FOR SUMMARY JUDGMENT (# 107 & # 110)

FACTS

The plaintiffs—JBRV, LLC, Robert Valenti, and Fred Valenti appeal from the tax assessment of a parcel of land by the defendant, town of Stonington (the town), through its Board of Assessment Appeals.   The plaintiff claims the defendant cannot correct errors it made when assessing the subject parcel in certain tax years.   The defendant asserts its errors were clerical errors, thus correctable retroactively under General Statutes § 12–60.   The town and the plaintiffs filed cross motions for summary judgment on August 7 and 21, 2013, respectively, and argued the matter before this court on October 7, 2013.

The following facts are relevant to these motions and do not appear to be in genuine dispute by the parties.   The subject property, Lot 1B is adjacent to and used in conjunction with another parcel of land owned by some of the plaintiffs.   The two adjacent lots are on Jerry Browne Road in the town of Stonington.   The first piece of property, Lot 1A, contains an automobile dealership.   The second piece of property, Lot 1B, contains a storage building that is primarily used to store vehicles for on-site maintenance, such as snow plows, to support the automobile dealership facilities.   Lot 1A is owned by the plaintiffs Robert Valenti and Fred Valenti, and has been owned by them during all times pertinent to this case.   Lot 1B was owned by the Valentis until December 2009, when it was transferred to the plaintiff JBRV, LLC.

From 2007 until 2011, the tax assessor for the town of Stonington assessed the storage building as if it was on Lot 1A, and assessed Lot 1B as land only.   This increased the assessed value of the property on Lot 1A, and substantially decreased the amount of the assessment on Lot 1B. Specifically, during that time period, Lot 1B had an assessed value of only $1,100 due to its “land only” designation.

On September 1, 2011, in a prior tax appeal between the same parties—Valenti v. Stonington, Superior Court, judicial district of New London, Docket No. CV–08–4008422–S—Judge Hendel awarded a judgment in favor of the plaintiffs, finding that the town had overassessed the value of Lot 1A by incorrectly treating the storage building as being on Lot 1A when it was actually physically on Lot 1B. As a result, the town was ordered to refund a portion of taxes that the Valentis had paid to the town for Lot 1A.

Shortly after the disposition of the 2008 tax appeal, on or about September 14, 2011, the town's tax assessor retroactively reevaluated the assessment of Lot 1B. For the reevaluation, the tax assessor increased the assessment, based upon the location of the building, $1,100 to $102,500.   This reassessment applied to Lot 1B's value on the 2011 grand list, and also retroactively to the years of 2008, 2009, and 2010.   As her authority for the retroactive reassessment, the tax assessor relied on General Statutes § 12–60, which permits an assessor to correct any “clerical omission or mistake in the assessment of taxes” that occurred during the preceding three years.   This reassessment resulted in a substantial increase in the plaintiffs' taxes owed on Lot 1B.

The plaintiffs appealed the assessment to the town's Board of Assessment Appeals, but that appeal was unsuccessful.   The plaintiffs then appealed to this court, seeking relief from the taxes laid on Lot 1B, on the ground that the retroactive reassessment of Lot 1B by the town was improper.   The plaintiffs' complaint for this appeal is comprised of two counts.   In count one, the plaintiffs seek relief pursuant to General Statutes § 12–117a,¹ and, in count two, the plaintiffs seek relief pursuant to General Statutes § 12–119.²

DISCUSSION

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ To satisfy [its] burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citations omitted;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

The parties' memorandums and evidence demonstrate that they are largely in agreement as to the essential facts in this case, and their motions primarily seek for the court to resolve a question of law.   The question presented by the parties' cross motions for summary judgment is whether the Stonington tax assessor's retroactive reassessment of the Lot 1B property was a valid exercise of her powers granted by General Statutes § 12–60.   The plaintiffs argue that the reassessment was not permitted by § 12–60, while the town argues that the reassessment was proper under § 12–60 to correct a clerical mistake made by the tax assessor.   For the reasons set forth below, this court agrees with the plaintiffs and concludes that the retroactive reassessments were improperly made and not permitted by § 12–60.

General Statutes § 12–60 provides in relevant part:  “Any clerical omission or mistake in the assessment of taxes may be corrected according to the fact by the assessors or board of assessment appeals, not later than three years following the tax due date relative to which such omission or mistake occurred, and the tax shall be levied and collected according to such corrected assessment ․” In § 12–60, “the adjective ‘clerical’ qualifies ‘mistake’ as well as ‘omission.’  “ Reconstruction Finance Corp. v. Naugatuck, 136 Conn. 29, 32, 68 A.2d 161 (1949).   The pivotal concept for present purposes is the meaning of “clerical omission or mistake” within § 12–60.  “Clerical errors are of a character different from errors of substance, of judgment, or of law ․ Where an error is of a deliberate nature such that the party making it at the time actually intended the result that occurred, it cannot be said to be clerical.”  (Citation omitted.)  National CSS, Inc. v. Stamford, 195 Conn. 587, 596, 489 A.2d 1034 (1985).   A tax assessor's assessment cannot be deemed a clerical error when it is based on his or her judgment or discretion, even if exercised incorrectly.   Chappaqua Realty, LLC v. New Milford, Superior Court, judicial district of Danbury, Docket No. CV–05–4002803–S (August 15, 2007, Shaban, J.) (where assessor's incorrect assessment of taxpayer's property was based on his own personal inspection, the mistake could not later be claimed as a clerical error).  “A clerical error, for example, would be something more in the nature of the transposing of a number when recording the value of the property on the grand list.”  Id.

The following examples are illustrative of how our courts have defined “clerical omission or mistake” in the context of applying § 12–60.   If an assessor intends to assess a property as having a value of $100,000, but he accidentally transposes the decimal place and records it as $10,000, that is a clerical error.   The assessor's intent was to record the figure as $100,000, not $10,000.   He is entitled to correct that error pursuant to § 12–60, in order to effectuate his original intentions.   On the other hand, if an assessor intends to assess a property under the designation of residential property and, a year later, he realizes that he was mistaken because it is actually zoned as commercial property—this mistake is an error of substance, not a clerical error.   The assessor intended to assess the property as residential property at the time of the assessment, and he did.   The fact that this assessment was later discovered to be a mistake, and the assessor had not known that he was making a mistake, does not change the fact that he originally intended to make the mistaken assessment.   Such an error is therefore not clerical in nature.   In other words, often the key factor in determining whether a mistake is clerical under § 12–60 is the intent of the assessor at the time he records the assessment, and not what the assessor actually would have done now that he has the benefit of hindsight and proper information.

This interpretation of § 12–60 is supported by National CSS, Inc. v. Stamford, supra, 195 Conn. 587, both in the holding and reasoning in that case, and its instruction that an error is not clerical if “the party making it at the time actually intended the result that occurred.”  (Emphasis added.)   Id., 596.   In National CSS, the plaintiff taxpayer listed on its property tax return certain leased computer equipment, and paid taxes on the equipment under the mistaken belief that it owed the taxes, only to discover later that it did not.   The plaintiff relied on § 12–60 in an attempt to correct its mistaken inclusion of the equipment on its tax return and receive a refund, arguing that its mistake was a clerical error.   The Supreme Court affirmed the trial court's denial of the plaintiff's request, holding that § 12–60 was inapplicable because the plaintiff's actions were deliberate, even if mistaken.  Id. As the court reasoned:  “The plaintiff, at the time it listed the leased computer equipment on its tax return and paid the disputed taxes, operated under the mistaken belief that it actually owed taxes on the equipment to the defendant.   Because the plaintiff's action in listing the property and paying the taxes, although mistaken, was deliberate and intentional, it is not clerical, but can only be characterized as an error of substance.”  Id. Thus, just like in the examples noted in the paragraph above, the court in National CSS focused on the party's intent at the time its actions occurred, and not what it would do with the benefit of hindsight, in determining whether the action was a “clerical omission or mistake” for purposes of § 12–60.

Similarly, in Kuhlemeier v. County of Los Angeles, 2 Cal.2d 257, 261, 40 P.2d 828 (1935), which was relied on by our Supreme Court when deciding National CSS, the California Supreme Court held that it was not a clerical error when a taxpayer's bookkeeper erroneously overvalued the taxpayer's property, which values the tax assessor adopted, resulting in higher taxes than the taxpayer should have been required to pay.   Had there been a clerical error, the taxpayer would have been entitled to recover the excess tax he paid, under a California statute similar to § 12–60.   In explaining its conclusion that the plaintiff taxpayer was not entitled to such a refund, the court stated:  “[The plaintiff's allegations] constitute, at best, but a criticism of the method or theory of bookkeeping adopted by plaintiff's bookkeeper.   It cannot be said that the [bookkeeper's] book-value figure, which the assessor adopted, was the result of clerical or other error.   Rightly or wrongly computed, it was the bookkeeper's deliberate and intended estimate of the value of the property.   This being so, the adoption of such figure by the assessor cannot reasonably be said to be a ‘clerical error’ on his part ․ The error of the assessor, if any, was one of substance or of judgment and was not clerical in character.”  Id.

Like National CSS and Kuhlemeier, the Stonington tax assessor's mistake in the present case was an error of substance, rather than a clerical error, as evidenced by the arguments and proof presented by the town in its own motion.   The tax assessor's affidavit, attached to the town's motion, states her explanation of what led to the mistake:  “In [Valenti v. Stonington, the prior Superior Court case between the town and the same plaintiffs], which was an assessment appeal for the land and building valuation of Lot 1A, I became aware of the fact that the assessor's card for Lot 1A included a storage building along with two dealership buildings.   I subsequently learned that the storage building was not located on Lot 1A but was in fact located on Lot 1B. In reviewing the assessor's card for Lot 1B, only land had been assessed.   I did not intentionally place the assessment of the building on Lot 1A ․ I corrected the mistake for the assessment storage building on Lot 1B retroactively for the assessment list of 2008, 2009 and 2010.”

Despite the tax assessor's claim that she did not intentionally make the mistaken assessment, her own explanation evidences a deliberate assessment of the storage building as being on Lot 1A and negates the town's claim that a clerical error occurred.   Mistakes, of course, are rarely intentional—simply saying that “I made a mistake that I did not intend to make” is not enough to qualify as a clerical error.   Accordingly, what is important to this case is that, at the time the assessor made the assessment, she admits that she intended to place the storage building on Lot 1A. For it to be a clerical error, she would have needed to intend to place the building on Lot 1B at the time of the assessment but accidentally misrecord it as being on Lot 1A. Her realization, in hindsight, that she relied on an erroneous record of the defendant town when making her assessment is no different than the taxpayer relying on his own mistaken information in National CSS or the reliance on an erroneous book value in Kuhlemeier.³  Therefore, as in those cases, the error in this case was an error of substance and not a clerical error.   Section 12–60 is, thus, inapplicable and the retroactive reassessments of the plaintiffs' property were not proper.

Before concluding, however, one final matter must be addressed.   In the plaintiffs' complaint, they claim to be appealing the town's assessment of Lot 1B for the grand list years of 2007, 2008, 2009, 2010, and 2011.   Yet, in their brief and evidence, they do not provide proof, or even argument, to establish that relief is warranted for the 2007 and 2011 grand list years.   In the town's brief and the tax assessor's affidavit, they take the position that the retroactive reassessments were only made for the years of 2008, 2009, and 2010.   There is no evidence provided by either party to substantiate that a retroactive reassessment took place as to the 2007 grand list and, in fact, in neither the plaintiffs' brief nor their affidavits do they claim that they are owed a refund as to their 2007 property taxes.   Most notably, the plaintiffs submitted as evidence Certificates of Change that they received from the town that provided them notice of the retroactive reassessments, but these certificates pertain only to the years of 2008–2010.   Thus, the court finds no genuine issue of material fact on this point and concludes that the plaintiffs are not entitled to any relief as to their 2007 taxes on Lot 1B. There is also a question as to whether relief is warranted as to the taxes laid on Lot 1B for the 2011 grand list.   As pointed out by the town, the revaluation of Lot 1B for the October 1, 2011 grand list was made prior to that date, not retroactively.   This fact is corroborated by the plaintiffs through Robert Valenti's affidavit, which was submitted as evidence with the plaintiffs' motion, and in which he states that the date that the town revalued Lot 1B was September 14, 2011.   The town argues that, as a result, the revaluation was not retroactive and was permitted pursuant to General Statutes § 12–55.⁴  The plaintiffs do not seem to contest this argument, and provided no law, evidence, or argument in response to it.   The court agrees with the town and concludes that the corrected assessment for Lot 1B as to the 2011 grand list was proper under § 12–55, and not made pursuant to § 12–60.   See Kasica v. Columbia, 309 Conn. 85, 94–96, 70 A.3d 1 (2013);  see also Matzul v. Montville, 70 Conn.App. 442, 798 A.2d 1002, cert. denied, 261 Conn. 923, 806 A.2d 1060 (2002).

Accordingly, although the court agrees that the town misapplied § 12–60, it finds that the plaintiffs are only entitled to relief as to the excess taxes assessed on Lot 1B for the grand list years of 2008, 2009, and 2010.

CONCLUSION

In accordance with the foregoing, the town's motion for summary judgment is denied as to its assessment of lot 1B for the grand list years of 2008, 2009 and 2010, and granted as to the grand list year of 2011.   The plaintiffs' motion for summary judgment is granted as to the assessment of lot 1B for the grand list years of 2008, 2009, and 2010 and denied as to the grand list year of 2011.

Cosgrove, J.

FOOTNOTES

FN1. 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 ․ The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable ․”.  FN1. 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 ․ The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable ․”

FN2. General Statutes § 12–119 provides in relevant part:  “When 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 ․ 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.   Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation ․ In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains ․”.  FN2. General Statutes § 12–119 provides in relevant part:  “When 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 ․ 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.   Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation ․ In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains ․”

FN3. Although certain Superior Court cases, including the two cited by the defendant, reached a different result—holding that a mistake of fact by a tax assessor was a clerical mistake—those cases are either distinguishable, in that someone besides the tax assessor or town caused the error;  see Coy–Mill Estates, LLC v. Coventry Board of Tax Review, Superior Court, judicial district of Tolland, Docket No. CV–96–0060718–S (October 7, 1997, Rittenband, J.) (20 Conn. L. Rptr. 597) (taxpayer caused the error by leading the assessor to believe that his property should be treated as one parcel when it was actually five separate parcels);  or contradictory to our Supreme Court's holding in National CSS;  see Rogan v. Bozrah, Superior Court, judicial district of New London at Norwich, Docket No. 105379 (January 24, 1995, Austin, J.) (holding that where appraisal company hired by town made factual errors in evaluating the subject property, which were adopted by the assessor, they were clerical errors because “the Town did not deliberately intend to assess the wrong amount of acreage, or assess the property wrongly as residential ․ Since [the tax assessor] had no knowledge that these errors were being committed he could not have deliberately intended them”)..  FN3. Although certain Superior Court cases, including the two cited by the defendant, reached a different result—holding that a mistake of fact by a tax assessor was a clerical mistake—those cases are either distinguishable, in that someone besides the tax assessor or town caused the error;  see Coy–Mill Estates, LLC v. Coventry Board of Tax Review, Superior Court, judicial district of Tolland, Docket No. CV–96–0060718–S (October 7, 1997, Rittenband, J.) (20 Conn. L. Rptr. 597) (taxpayer caused the error by leading the assessor to believe that his property should be treated as one parcel when it was actually five separate parcels);  or contradictory to our Supreme Court's holding in National CSS;  see Rogan v. Bozrah, Superior Court, judicial district of New London at Norwich, Docket No. 105379 (January 24, 1995, Austin, J.) (holding that where appraisal company hired by town made factual errors in evaluating the subject property, which were adopted by the assessor, they were clerical errors because “the Town did not deliberately intend to assess the wrong amount of acreage, or assess the property wrongly as residential ․ Since [the tax assessor] had no knowledge that these errors were being committed he could not have deliberately intended them”).

FN4. General Statutes § 12–55(b) provides in relevant part:  “Prior to taking and subscribing to the oath upon the grand list, the assessor or board of assessors shall equalize the assessments of property in the town, if necessary, and make any assessment omitted by mistake or required by law.   The assessor or board of assessors may increase or decrease the valuation of any property as reflected in the last-preceding grand list, or the valuation as stated in any personal property declaration or report received pursuant to this chapter ․”.  FN4. General Statutes § 12–55(b) provides in relevant part:  “Prior to taking and subscribing to the oath upon the grand list, the assessor or board of assessors shall equalize the assessments of property in the town, if necessary, and make any assessment omitted by mistake or required by law.   The assessor or board of assessors may increase or decrease the valuation of any property as reflected in the last-preceding grand list, or the valuation as stated in any personal property declaration or report received pursuant to this chapter ․”

Cosgrove, Emmet L., J.