Fairfield Merrittview Ltd. Partnership v. Norwalk ( 2016 )

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FAIRFIELD MERRITTVIEW LTD. PARTNERSHIP v. NORWALK—DISSENT
McDONALD, J., with whom ROBINSON, J., joins, dis-
senting. There is no doubt that, under our rules of prac-
tice 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 plain-
tiffs’ 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 pre-
clude 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, 151.
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 dis-
tinct 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 prop-
erly 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 partner-
ship 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 transfer-
ring 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 defen-
dants raised the issue of standing in their posttrial brief,
the plaintiffs again took no action to remedy the juris-
dictional 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 substitu-
tion pursuant to § 52-109. Section 52-109 provides in
relevant part that ‘‘[w]hen any action has been com-
menced 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 determi-
nation 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 Asso-
ciates 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. Partner-
ship 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 plain-
tiffs 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 circum-
stantial defects, not jurisdictional ones. See New
England Road, Inc. v. Planning & Zoning Commis-
sion, 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 disa-
vowed making, the majority rejects as dicta this court’s
statement in DiLieto v. County Obstetrics & Gynecol-
ogy Group, P.C., supra, 297 Conn. 151, 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 acknowl-
edged this standard, let alone asked this court to revisit
DiLieto or reject this statement of the law. This state-
ment has been cited approvingly by this court and the
Appellate Court; see Kortner v. Martise, supra, 312
Conn. 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 dis-
missing 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, presum-
ably is protected by insurance. Courts have required
parties to bear far more serious consequences of coun-
sel’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 con-
tention 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 omis-
sions of this freely selected agent. Any other notion
would be wholly inconsistent with our system of repre-
sentative 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 recog-
nize that dismissal is a harsh sanction. Under the cir-
cumstances 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 prose-
cute.’’ [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.
1
I agree with the majority that the Appellate Court improperly rested its
resolution of the jurisdictional issue on the basis of an assumption that was
not supported by the record, insofar as it concluded that the partnership
and not the LLC had appeared before the Board of Assessment Appeals of
the City of Norwalk.
2
In addition to the city of Norwalk, the other defendants named in the
tax appeal were the Board of Assessment Appeals of the City of Norwalk
and the city’s tax assessor, Michael J. Stewart. Like the majority, I hereinafter
refer to the three defendants collectively as the defendants, and individually
by name where appropriate.
3
Although it is well settled that this court may take judicial notice of files
in other cases; see Getty Properties Corp. v. ATKR, LLC, 315 Conn. 387,
391 n.3, 107 A.3d 931 (2015); State v. Rizzo, 303 Conn. 71, 122 n.42, 31 A.3d
1094 (2011), cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012);
Jewett v. Jewett, 265 Conn. 669, 678 n.7, 830 A.2d 193 (2003); I underscore
that I rely on the plaintiffs’ allegations in the malpractice action solely as
admissions by them as to their own knowledge. See West Haven Sound
Development Corp. v. West Haven, 201 Conn. 305, 312, 514 A.2d 734 (1986)
(‘‘[f]actual allegations contained in pleadings upon which the cause is tried
are considered judicial admissions and hence irrefutable as long as they
remain in the case’’ [internal quotation marks omitted]); Dreier v. Upjohn
Co., 196 Conn. 242, 244, 492 A.2d 164 (1985) (‘‘statements in withdrawn or
superseded pleadings, including complaints, may be considered as evidential
admissions by the party making them’’).
4
The majority’s recitation of facts strongly intimates that the defendants
bear responsibility for the plaintiffs’ predicament because they did not raise
the issue of standing earlier in the litigation. Such a suggestion runs contrary
to settled case law that the court’s subject matter jurisdiction can be chal-
lenged at any stage in the proceedings, can be raised by the court sua sponte,
and cannot be waived or conferred by agreement of the parties. See Freedom
of Information Officer, Dept. of Mental Health & Addiction Services v.
Freedom of Information Commission, 318 Conn. 769, 775, 122 A.3d 1217
(2015) (‘‘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 require-
ment of subject matter jurisdiction cannot be waived by any party and
can be raised at any stage in the proceedings.’’ [Internal quotation marks
omitted.]); Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, 283
Conn. 672, 685, 931 A.2d 159 (2007) (‘‘[A] subject matter jurisdictional defect
may not be waived . . . [or jurisdiction] conferred by the parties, explicitly
or implicitly. . . . [T]he question of subject matter jurisdiction is a question
of law . . . and, once raised, either by a party or by the court itself, the
question must be answered before the court may decide the case.’’ [Internal
quotation marks omitted.]). To the extent that the majority views the defen-
dants’ conduct as raising equitable considerations that favor the result that
it reaches, putting aside the fact that the plaintiffs never articulated any
equitable theory to justify such a result, I question the wisdom, as well as
the propriety, of determining subject matter jurisdiction through the lens
of equity.
5
The majority’s carefully phrased response to this point, that ‘‘the plaintiffs
argued the applicability of jurisprudence governing additions and substitu-
tions of party plaintiffs pursuant to . . . § 52-109 in both their main brief
and their reply brief,’’ speaks volumes. (Emphasis added.) See footnote 13
of the majority opinion. The plaintiffs never cited § 52-109 in their main
brief. Instead, the plaintiffs’ main brief states: ‘‘This court has held that . . .
§ 52-123 is remedial and should be liberally construed, even when faced
with a claim of lack of subject matter jurisdiction in a tax appeal. Andover
[Ltd.] Partnership I v. Board of Tax Review, 232 Conn. 392, 396–99, 655
A.2d 759 (1995). Our general policy with respect to pleadings is very liberal
and permits the substitution of parties as the interests of justice require.
Reiner v. [West Hartford, Superior Court, judicial district of New Britain,
Docket No. CV-00-0502686-S (March 22, 2001)] (denial of motion to dismiss
where tax appeal was taken by trustees, rather than by individual who was
true owner of assessed property; amendment allowed over objection); Udolf
v. [West Hartford, Superior Court, judicial district of Hartford-New Britain
at Hartford, Docket No. CV-93-0525699 (August 14, 1996) (17 Conn. L. Rptr.
520)] (denial of motion to dismiss where tax appeal was taken by individual,
rather than by corporation which was true owner of assessed property;
amendment allowed over objection).’’ The defendants reasonably under-
stood this argument to seek a liberal interpretation of § 52-123 and limited
their response accordingly.