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FAIRFIELD MERRITTVIEW LIMITED PARTNERSHIP v. CITY OF NORWALK ET AL (2016)

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Supreme Court of Connecticut.

FAIRFIELD MERRITTVIEW LIMITED PARTNERSHIP v. CITY OF NORWALK ET AL.

No. 19373.

Decided: March 01, 2016

ROGERS, C. J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js. James R. Fogarty, for the appellants (plaintiff et al.). Daniel J. Krisch, with whom were Mario F. Coppola, corporation counsel, and Carolyn M. Colangelo, assistant corporation counsel, for the appellees (defendants).

This case concerns the standing requirements for maintaining a municipal property tax appeal. The plaintiffs, Fairfield Merrittview Limited Partnership (partnership) and Fairfield Merrittview SPE, LLC (LLC),1 appeal from the judgment of the Appellate Court reversing the trial court's judgment that had sustained their property tax appeal and reduced the valuation of the LLC's property, for assessment purposes, by approximately $15 million. The Appellate Court reversed the judgment and remanded the case to the trial court with direction to dismiss the plaintiffs' appeal after agreeing with the defendant city of Norwalk (city)2 that the plaintiffs' appeal was void ab initio, due to the trial court's lack of subject matter jurisdiction, because the owner of the property at issue had not appeared in subsidiary administrative proceedings before the Board of Assessment Appeals of the City of Norwalk (board) and did not initiate the appeal to the court.3 Fairfield Merrittview Ltd. Partnership v. Norwalk, 149 Conn.App. 468, 477–78, 89 A.3d 417 (2014). The plaintiffs claim that the Appellate Court improperly reversed the trial court's judgment because the tax appeal to the trial court, although initially brought by a nonaggrieved party, the partnership, also was maintained by the LLC, which was an aggrieved party that properly had been added to the trial court proceedings by way of a promptly filed amended complaint. We agree with the plaintiffs and, accordingly, reverse the judgment of the Appellate Court.

The following facts and procedural history, which the parties do not dispute, are relevant to the appeal. The partnership and the LLC are related entities with common owners. The partnership acquired the property at issue, a commercial office complex, in 1994. It then transferred ownership of the property to the LLC in 2007. A deed evidencing this transfer was timely filed in the city's land records. On October 1, 2008, as part of a periodic city wide revaluation,4 the city's tax assessor; see footnote 1 of this opinion; set the fair market value of the property at $49,036,800. The assessor's field card inaccurately identifies the partnership as the owner of the property. The LLC challenged this assessment before the board pursuant to General Statutes § 12–111,5 but the board declined to reduce it. The board mailed a notice of no change, again inaccurately addressed to the partnership, to an attorney who was an authorized agent for both entities.

On July 1, 2009, the partnership filed an appeal from the board's action to the Superior Court pursuant to General Statutes § 12–117a.6 Therein, the partnership alleged that it was the owner of the property at issue on October 1, 2008, was aggrieved by the assessor's action and had appeared, unsuccessfully, before the board. Approximately one month later, on August 7, 2009, the partnership and the LLC filed an “Amended Appeal and Application” (amended appeal) with the trial court, naming both entities as plaintiffs and alleging that they both had owned the property on October 1, 2008. The amended appeal was unclear regarding which entity had appeared before the board.7

The plaintiffs' amended appeal was accompanied by a motion for permission to amend. The defendants did not object to that motion, and the trial court, Hon. A. William Mottolese, judge trial referee, ultimately granted it by summary order dated February 16, 2010. Thereafter, the defendants did not file a motion to dismiss contesting jurisdiction, but rather, filed an amended answer that left the plaintiffs to their proof on their allegations regarding which entity or entities had owned the property on October 1, 2008, and which entity or entities had appealed to the board.

A brief trial was held in December, 2011. During the trial, the plaintiffs submitted two deeds into evidence, thereby establishing the partnership's acquisition of the property in 1994 and its transfer of the property to the LLC in 2007. After the trial concluded, the parties submitted simultaneous posttrial briefs. In their brief, the defendants cited to the deeds in evidence and argued for the first time that the trial court lacked subject matter jurisdiction because the partnership, the party that had initiated the appeal to the court, did not own the property at the time of its assessment and, therefore, was not aggrieved and lacked standing to appeal pursuant to § 12–117a. The defendants acknowledged that the LLC owned the property on October 1, 2008, and that the appeal to the court had been amended to add the LLC as a plaintiff. They did not argue that the LLC lacked standing to bring a § 12–117a appeal, that the addition of the LLC as a party was in any way defective or that the trial court improperly had permitted the amendment of the complaint.8

In an August 6, 2012 memorandum of decision, the trial court, Hon. Aaron W. Aronson, judge trial referee, prior to sustaining the plaintiffs' appeal and reducing the defendants' valuation of the subject property from $49,036,800 to $34,059,753, rejected the defendants' jurisdictional claim. The court referenced the 2007 deed conveying the property from the partnership to the LLC and reasoned that, “[a]s of October 1, 2008, at least one of the two plaintiffs named in the amended [appeal] was the record owner of the [property], which is sufficient to provide standing to maintain this appeal.” The defendants' appeal to the Appellate Court followed.

In their brief to the Appellate Court, the defendants again contested the trial court's jurisdiction to hear the plaintiffs' appeal, but expanded upon their original argument. In addition to arguing that the partnership, as a former owner, was not aggrieved by the city's assessment of the property and could not bring an appeal to the court pursuant to § 12–117a, the defendants contended further that the LLC, the actual owner of the property, had not appeared before the board and that this omission was fatal to establishing jurisdiction. Fairfield Merrittview Ltd. Partnership v. Norwalk, Conn. Appellate Court Records & Briefs, February Term, 2014, Defendants' Brief, pp. 13–14, 16. Citing to the plaintiffs' original and amended appeals, the defendants claimed that it was the partnership, instead, that had appeared before that body. Id., at pp. 13, 15. The defendants also stated that the LLC had been added as a party “long after” the period in which to bring an appeal to the trial court had expired, but did not elaborate or point to any evidence in support of this claim.9 Id., at p. 15. Again, in the Appellate Court, the defendants did not argue that the trial court improperly had permitted the amendment of the complaint to add the LLC as a party plaintiff.

In response, the plaintiffs argued that the amendment of the court appeal to add the LLC as a party was filed within thirty days of the return date and, therefore, was an amendment as of right that related back to the filing of the initial appeal; see General Statutes § 52–128; Practice Book § 10–59; or, effectively, was the discretionary addition of an interested party having standing to pursue the appeal. Fairfield Merrittview Ltd. Partnership v. Norwalk, Conn. Appellate Court Records & Briefs, supra, Plaintiffs' Brief pp. 10–11. The plaintiffs contended further that the defendants, by waiting until after the trial had concluded to raise the issue of subject matter jurisdiction, had engaged in an unfair ambuscade that had prevented the plaintiffs from responding effectively to that question. Id., at pp. 13–16, 21–22. Finally, according to the plaintiffs, the partnership and the LLC essentially were the same entity, having undergone a change of name and structure but retaining the same beneficial owners. Id., at pp. 16–17.

The Appellate Court agreed with the defendants that the trial court lacked subject matter jurisdiction over the plaintiffs' appeal. Fairfield Merrittview Ltd. Partnership v. Norwalk, supra, 149 Conn.App. at 475. The Appellate Court first rejected the plaintiffs' contention that they were, in fact, the same legal entity, citing a lack of evidence in the record in that regard; id ., at 476; as well as other circumstances indicating that the two were distinct entities. Id., at 476 n. 7. It further disagreed that the defendants' jurisdictional challenge was untimely and that the plaintiffs had had an inadequate opportunity in which to respond to it. Id., at 477. Finally, the Appellate Court concluded, both the appeal to the board and the appeal to the trial court were brought by the partnership, a party which lacked standing due to its nonownership of the property at issue. Accordingly, the Appellate Court reasoned, the appeal was void, ab initio, and should have been dismissed by the trial court.10 Id. The Appellate Court did not address the plaintiffs' contention that they properly had amended their complaint to include the LLC as a plaintiff, apparently concluding that the alleged absence of the LLC in the proceedings before the board was a fatal jurisdictional defect.11

Subsequent to the issuance of the Appellate Court's decision, the plaintiffs filed a motion for reconsideration en banc, wherein they claimed that the court's decision was based on a material factual error, namely, that the partnership, and not the LLC, was the party that had filed the appeal to the board. The plaintiffs also reiterated their claim that the appeal to the trial court properly had been amended to include the LLC as a party plaintiff.12 They contended further that the defendants had made a different jurisdictional argument in the Appellate Court than the one they had made to the trial court, and incorrectly had represented to the Appellate Court that the partnership was the party that had appealed to the board.13 The Appellate Court denied the plaintiffs' motion for reconsideration. This appeal by the plaintiffs followed.

The plaintiffs claim that the Appellate Court improperly reversed the trial court's judgment, for want of subject matter jurisdiction, because the LLC, the undisputed owner of the property at issue on the date of revaluation, was aggrieved and possessed standing to appeal, regardless of whether it had appeared in the proceedings before the board. Accordingly, they claim, proof of that appearance was unnecessary to establish jurisdiction. The plaintiffs point to the plain language and historical antecedents of § 12–117a, and cases applying that provision, in support of this claim. The plaintiffs contend further that their amended appeal, naming the LLC as a party plaintiff, was filed promptly after the original complaint, as a matter of right, pursuant to § 52–128, that the defendants never have objected to the amendment, and that case law governing the addition and substitution of party plaintiffs in tax appeals further supports the addition of the LLC to the proceedings here.14

The defendants, in response, have refined further their argument that the trial court lacked subject matter jurisdiction. They again contend, as they did before the Appellate Court, that the partnership, the party that had initiated the appeal to the trial court, lacked standing to appeal because it did not own the subject property at the time of its assessment. The defendants claim further that, because the initial appeal was void for lack of jurisdiction, that appeal was “a legal nullity” that could not be amended properly to include the LLC as a party plaintiff. According to the defendants, the plaintiffs' only option was to withdraw the initial appeal, then to bring a new appeal in the name of the LLC, but even that option was unavailable by the time of the amended appeal because the statutory period in which to bring a § 12–117a appeal had expired.15 The plaintiffs reply that the amendment of their complaint to add the LLC constituted a proper substitution of a party pursuant to General Statutes § 52–109 and Practice Book § 9–20, which related back to the filing of the original complaint, thereby rendering the timing of the amendment immaterial.

We conclude that the Appellate Court improperly held that the trial court lacked subject matter jurisdiction over the plaintiffs' appeal on the basis that the LLC, the undisputed owner of the property on the date it was assessed, had not appeared in the proceedings before the board. We conclude further that the prompt amendment of the complaint to add the LLC as a party plaintiff was effective to confer jurisdiction on the trial court, regardless of whether the action initially was instituted by an improper party, the partnership. Although captioned as an amendment, the plaintiffs' filing effectively was the addition or substitution of the correct plaintiff, to which the defendants did not object, and which the trial court in its discretion properly permitted.

We begin with the standard of review and general governing principles. “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy․ When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue․” (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 393, 941 A.2d 868 (2008). As a general matter, “one party has no standing to raise another's rights.” Sadloski v. Manchester, 235 Conn. 637, 643, 668 A.2d 1314 (1995).

“If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause․ A determination regarding a trial court's subject matter jurisdiction is a question of law. When ․ the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 802, 925 A.2d 292 (2007).

“[A] court lacks discretion to consider the merits of a case over which it is without jurisdiction․ The objection of want of jurisdiction may be made at any time ․ [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention․ The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings․

“Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” (Internal quotation marks omitted.) Id ., at 802–803, 925 A.2d 292.

“Two broad yet distinct categories of aggrievement exist, classical and statutory”; (internal quotation marks omitted) Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008); the latter of which is implicated in the present case. “[I]n cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Internal quotation marks omitted.) Id.

The plaintiffs claim that § 12–117a conferred standing on the LLC to pursue an appeal of the board's decision to the court, regardless of whether they proved that the LLC had appeared before the board. We agree. Section 12–117a provides16 in relevant part that “[a]ny person, including any lessee of real property whose lease has been recorded as provided under section 47–19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the ․ board of assessment appeals ․ 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․ If the assessment made by the ․ board of assessment appeals ․ is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes ․ The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant's property has increased or decreased.” (Emphasis added.) General Statutes § 12–117a.

Given the plain language of the statute, we agree with the plaintiffs that the LLC17 was aggrieved by the board's refusal to reduce the claimed overassessment of the subject property and, therefore, that the jurisdictional requirements of § 12–117a were satisfied. Specifically, as proven by the 2007 deed in evidence, the LLC was the owner of the property on the date of its assessment, and it remained so thereafter. Moreover, as owner of the property, it legally was responsible for the payment of any taxes levied on the basis of that assessment. As reflected in the clear wording of the statute, and as this court repeatedly has explained, § 12–117a “allows taxpayers to appeal the decisions of municipal boards of [assessment appeals] to the Superior Court, [and] provide[s] a method by which an owner of property may directly call in question the valuation placed by assessors upon his property.” (Emphasis added.) Breezy Knoll Assn., Inc. v. Morris, 286 Conn. 766, 775, 946 A.2d 215 (2008); Konover v. West Hartford, 242 Conn. 727, 734, 699 A.2d 158 (1997). In short, as a property owner and taxpayer, the LLC is precisely the type of party at which the statute is directed, and it unquestionably possessed standing to appeal to the Superior Court to challenge the board's action.

By requiring the plaintiffs also to have proven that the LLC was the party who previously had appeared before the board, the Appellate Court read into § 12–117a a requirement that simply does not appear in that provision, which extends the right to appeal to “[a]ny person” claiming to be aggrieved by the board's action and indicates otherwise that such aggrievement is established through ownership of the property or, at least in some cases, responsibility to pay taxes on property despite a lack of ownership. Notably, the Appellate Court did not cite to any authority in support of such a requirement, nor did it engage in an analysis of the statutory language directed at this question. Although we expect that, in the normal course of events, a party that brings an appeal to the trial court pursuant to § 12–117a first will have appeared in the proceedings before a board of tax review or assessment appeals that are a prerequisite to a court appeal, we are unable to conclude that that appearance, in all cases, is required.18 Accordingly, the Appellate Court's holding to the contrary, and its order that the plaintiffs' appeal be dismissed on this basis, were improper.

Because the Appellate Court concluded that the LLC's purported absence from the proceedings before the board was fatal to the appeal before the trial court, it did not reach the question of whether the prompt amendment of the complaint to add the LLC as a party plaintiff was sufficient to confer standing on the trial court, despite the fact that the appeal initially was filed by the partnership, a party that, indisputably, did not have standing to appeal pursuant to § 12–117a. We conclude that it was sufficient.

Subsequent to the board's direction of correspondence relating to the assessment at issue to the partnership, despite the recordation in the city's land records of a deed evidencing the property's transfer to the LLC, the plaintiffs' counsel initially filed this appeal in the name of the partnership. Only one month later, however, counsel filed an amended appeal also naming the LLC as a plaintiff.19 The defendants did not object to this amendment, and the trial court allowed it. In fact, the defendants did not contest the court's jurisdiction until almost three years later in a posttrial brief. Even then, the defendants' challenge focused on the partnership's lack of standing, and not on any procedural irregularity concerning the LLC.

Although a plaintiff's lack of standing is a jurisdictional defect; Fort Trumbull Conservancy, LLC v. New London, supra, 282 Conn. at 802, 925 A.2d 292; it is a type of jurisdictional defect that our legislature, through the enactment of § 52–109, has deemed amenable to correction and, therefore, not irremediably fatal to an action. That statute provides: “When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff.” General Statutes § 52–109.

This court has explained that § 52–109 “allow[s] a substituted plaintiff to enter a case [w]hen any action has been commenced in the name of the wrong person as [the] plaintiff,” and that such a substitution will “relate back to and correct, retroactively, any defect in a prior pleading concerning the identity of the real party in interest.” (Internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 150, 998 A.2d 730 (2010). Thus, a “substitution of a real party in interest as the plaintiff cures the lack of standing of the original plaintiff”; Kortner v. Martise, 312 Conn. 1, 13, 91 A.3d 412 (2014); and, further, is permissible even “after the statute of limitations has run.”20 (Internal quotation marks omitted.) Id., at 13–14. An addition or substitution is discretionary, but generally should be allowed when, due to an error, misunderstanding or misconception, an action was commenced in the name of the wrong party, instead of the real party in interest, whose presence is required for a determination of the matter in dispute.21 General Statutes § 52–109.

Although the plaintiffs here captioned the motion that accompanied their amended complaint as a request for permission to amend, it clearly was, in its substance, a motion to add or substitute a party plaintiff.22 See Santorso v. Bristol Hospital, 308 Conn. 338, 351–52, 63 A.3d 940 (2013) (court may look “beyond the label of a motion to reclassify it when its substance [does] not reflect the label applied by the moving party”); In re Haley B., 262 Conn. 406, 412–13, 815 A.2d 113 (2003) (“we must look to the substance of the relief sought by the motion rather than the form”); see also In re Santiago G., 154 Conn.App. 835, 850, 108 A.3d 1184 (“[t]o hold [a litigant] strictly to the label on his filing would exalt form over substance”), aff'd, 318 Conn. 449, 121 A.3d 708 (2015). Moreover, under the undisputed facts and circumstances of the present case, there is no question that the foregoing requirements for an addition or substitution were met. Because the LLC was the sole owner of the property at issue at the relevant time, its addition as a party plaintiff undeniably was necessary for a determination of the matter in dispute, and the naming of the partnership, instead of the LLC, was due to an error, misunderstanding or misconception. The plaintiffs' counsel quickly took action to add the LLC as a party to the proceedings. The defendants have not identified any prejudice that they suffered from the action having been initiated and briefly maintained in the name of the wrong party, and we are unable to conceive of any. In sum, the trial court properly allowed the amendment to add the LLC, which cured any jurisdictional defect in the original complaint.23

The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings to consider the defendants' remaining claims.

There is no doubt that, under our rules of practice and the case law that existed prior to this litigation, the tax appeal of the plaintiffs, Fairfield Merrittview Limited Partnership (partnership) and Fairfield Merritt-view SPE, LLC (LLC), was jurisdictionally defective when the trial court rendered judgment. It is undisputed in this court that the partnership lacked standing when it commenced this action in its name. As the majority properly acknowledges, the only mechanism that could have cured such a jurisdictional defect was for the partnership to have been granted permission by the trial court to substitute the proper party, the LLC, for itself as the plaintiff. See General Statutes § 52–109; Practice Book § 9–20; see, e.g., Kortner v. Martise, 312 Conn. 1, 13, 91 A.3d 412 (2014); DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 150, 998 A.2d 730 (2010). The partnership never sought such a substitution, however, because it repeatedly took the position that it was a proper party to the action. That no substitution occurred is manifest in the partnership's continued presence in the case after the LLC was added to the tax appeal at the trial court, and its appearance in the subsequent appeals to the Appellate Court and this court. Nonetheless, the majority has magically turned back the hands of time, transmogrified the plaintiffs' litigation posture, and spontaneously made the partnership disappear as a party to this tax appeal. To accomplish this feat, the majority has had to disavow statements in an opinion of this court that would preclude affording exactly that relief, although no request to do so was ever made by the plaintiffs. See DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, at 151, 998 A.2d 730.

One might expect that such extraordinary actions must be justified by the need to avoid a terrible injustice that was not of the plaintiffs' making. That is patently not the case. Indeed, the issue resolved in the present case might better be framed as whether this court should rescue a party from a self-inflicted wound that it (or its counsel) readily could have prevented in a timely way. I would firmly answer that question in the negative.1

The essential fact necessary to support standing to challenge the tax assessment made by the defendant city of Norwalk2 was known to the plaintiffs from the outset. The partnership transferred ownership of the subject property from itself to a related but legally distinct entity, the LLC, by way of deed in June, 2007. Although naming both entities so similarly may not have been the wisest choice, the deed correctly identified the grantor and the grantee, and was duly recorded. The tax assessment at issue was made more than one year after the partnership transferred its ownership to the LLC.

The plaintiffs were represented by the same counsel throughout the proceedings before the defendant Board of Assessment Appeals of the City of Norwalk (board) and up to and including its appeal to the Appellate Court. In a malpractice action filed by the plaintiffs against that counsel following the Appellate Court's judgment in the present case, of which this court properly may take judicial notice,3 the plaintiffs allege in their complaint that they knew that the administrative appeal had been drafted bearing the name of the wrong entity and had asked counsel to correct that mistake, unaware that the appeal already had been filed. See Fairfield Merrittview SPE, LLC v. Murphy, Superior Court, judicial district of Stamford–Norwalk, Docket No. FST–CV–15–6024413–S. Irrespective of whether such a request was in fact ever made, it is clear that either the plaintiffs or their counsel bear responsibility for the fact that the action was commenced under the name of an entity that lacked standing.

It also is important to recognize that the plaintiffs failed to take advantage of other opportunities to cure the jurisdictional defect before judgment entered. The original complaint alleged that the partnership was the owner of the subject property. Thereafter, the partnership filed a motion for permission to amend its appeal and application to add the LLC as a party plaintiff with “an interest in the real estate” pursuant to General Statutes § 52–101 (providing for joinder of interested parties) and Practice Book § 9–3 (same). In the amended appeal, the plaintiffs alleged that the partnership and the LLC were “applicants” before the board and the owner of the subject property. At trial, the deed transferring ownership from the partnership to the LLC was admitted into evidence. At no time before the close of evidence did the plaintiffs seek to substitute the LLC for the partnership pursuant to § 52–109, to withdraw the partnership from the action, or even to amend the complaint to conform to the evidence. After the defendants raised the issue of standing in their posttrial brief, the plaintiffs again took no action to remedy the jurisdictional defect.4

Once judgment was rendered and the time passed to open the judgment, the plaintiffs relinquished the possibility of correcting this defect by way of substitution pursuant to § 52–109. Section 52–109 provides in relevant part that “[w]hen any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted ․ as plaintiff.” Of course, it is well settled that the court that is supposed to be satisfied that these conditions have been met is the trial court. See Joblin v. LaBow, 33 Conn.App. 365, 367, 635 A.2d 874 (1993) (“[T]he statute or rule envisions substitution while the action is pending․ Where judgment has been rendered, however, substitution is unavailable unless the judgment is opened.” [Citations omitted.] ), cert. denied, 229 Conn. 912, 642 A.2d 1207 (1994); see also Systematics, Inc. v. Forge Square Associates Ltd. Partnership, 45 Conn.App. 614, 619, 697 A.2d 701 (applying same principle), cert. denied, 243 Conn. 907, 701 A.2d 337 (1997).

Even when the defendants challenged the plaintiffs' standing on appeal to the Appellate Court, the plaintiffs did not claim that the amended appeal and the addition of the LLC corrected a mistake by substituting a proper party for an improper one. Instead, the plaintiffs again cited joinder of interested parties under § 52–101, and argued for the first time that the amendment was filed as of right under General Statutes § 52–128 and Practice Book § 10–59. See Fairfield Merrittview Ltd. Partnership v. Norwalk, 149 Conn.App. 468, 475, 89 A.3d 417 (2014). Section 52–128 is limited to the correction of nonjurisdictional defects. See LeConche v. Elligers, 215 Conn. 701, 711, 579 A.2d 1 (1990); Simko v. Zoning Board of Appeals, 205 Conn. 413, 419, 533 A.2d 879 (1987); Sheehan v. Zoning Commission, 173 Conn. 408, 411–13, 378 A.2d 519 (1977); Shapiro v. Carothers, 23 Conn.App. 188, 191 n. 3, 579 A.2d 583 (1990). The plaintiffs claimed that they in fact were a single entity whose name had changed, while at the same time also claiming that they were coexisting entities with “the identical legal interest and standing to pursue the appeal.” In support of the propriety of the amended appeal, the plaintiffs cited case law distinguishing between an amendment that corrects a mere misnomer that does not affect the identity of a party and one that seeks to substitute a new party. See Kaye v. Manchester, 20 Conn.App. 439, 444, 568 A.2d 459 (1990).

In their certified appeal to this court, the plaintiffs acknowledge that the action had been commenced by a party that lacked standing. In their main brief, they cite General Statutes §§ 52–123 and 52–128 as the basis for naming the LLC as a “co-plaintiff.” Like § 52–128, § 52–123 is available only to correct technical or circumstantial defects, not jurisdictional ones. See New England Road, Inc. v. Planning & Zoning Commission, 308 Conn. 180, 193–94, 61 A.3d 505 (2013). It was not until the plaintiffs filed their reply brief that they invoked § 52–109 as authority to substitute a plaintiff.5 Of course, it is well settled that this court generally will not consider an argument raised for the first time in a reply brief. See Rathbun v. Health Net of the Northeast, Inc., 315 Conn. 674, 703–704, 110 A.3d 304 (2015); see also Reardon v. Zoning Board of Appeals, 311 Conn. 356, 367–68 n. 8, 87 A.3d 1070 (2014) (citing general rule that claims may not be advanced for first time in reply brief, and noting additionally that issue was not proper subject of appeal because plaintiff advanced these claims before board and trial court “in only the most tangential way,” such that issue not addressed by board or trial court).

In order to rescue the plaintiffs from a mistake of their own making, one which they repeatedly disavowed making, the majority rejects as dicta this court's statement in DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 297 Conn. at 151, 998 A.2d 730, that a “mistake” for purposes of § 52–109 “properly has been interpreted to mean ‘an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence that she is the proper person to commence the [action].’ “ Significantly, the plaintiffs never acknowledged this standard, let alone asked this court to revisit DiLieto or reject this statement of the law. This statement has been cited approvingly by this court and the Appellate Court; see Kortner v. Martise, supra, 312 Conn. at 12; Rana v. Terdjanian, 136 Conn.App. 99, 110, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012); and, in at least one case, was dispositive of the action. See Youngman v. Schiavone, 157 Conn.App. 55, 65–70, 115 A.3d 516 (2015) (affirming judgment dismissing action after denying motion to substitute on ground that plaintiffs did not show they filed action in name of wrong person through mistake, as that term is defined in DiLieto ).

In sum, the blame for the plaintiffs' predicament lies squarely on them. If fault for the missteps lies with their counsel, they have recourse. Counsel, in turn, presumably is protected by insurance. Courts have required parties to bear far more serious consequences of counsel's actions or omissions than the loss of a right to challenge the amount of a property tax assessment. See generally Link v. Wabash Railroad Co., 370 U.S. 626, 633–34, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (The United States Supreme Court stated with respect to the dismissal of a negligence action seeking damages for personal injury: “There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney.” [Internal quotation marks omitted.] ); Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 33–34, 474 A.2d 787 (1984) (“We are not insensitive to the apparent harshness of any decision by a court that may be perceived as punishing the client for the transgressions of his or her attorney․ We recognize that dismissal is a harsh sanction. Under the circumstances of this case, however, we would do a disservice to the great majority of attorneys, who are conscientious, and to the litigants of this state if we unduly interfered with the trial court's judicious attempts at caseflow management. We conclude that the trial court did not abuse its sound discretion in dismissing the plaintiff's action for failure to prosecute.” [Citations omitted; footnote omitted; internal quotation marks omitted.] ). I am deeply concerned that the majority's actions in the present case expose the court to the risk of either appearing to afford special treatment in one case or opening the door to requests to apply a similar revisionist view of history in other cases.

I respectfully dissent.

ROGERS, C.J.

In this opinion PALMER, ZARELLA, EVELEIGH and ESPINOSA, Js., concurred.

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