Wilton Campus 1691, LLC. v. Wilton ( 2021 )

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WILTON CAMPUS 1691, LLC v. WILTON—CONCURRENCE AND DISSENT
ROBINSON, C. J., concurring in part and dissenting
in part. I respectfully disagree with part II of the majority
opinion, in which the majority concludes that a munici-
pal assessor’s untimely filing of statutory penalties
under General Statutes § 12-63c (d)1 was not a clerical
error subject to correction under General Statutes § 12-
60.2 Given this conclusion, the majority affirms the judg-
ment of the Appellate Court, which reversed the judg-
ment of the trial court and directed it to sustain the tax
appeals filed by the plaintiffs, Wilton Campus 1691, LLC,
Wilton River Park 1688, LLC, and Wilton River Park
North, LLC, from the penalties imposed by the munici-
pal assessor for the defendant, the town of Wilton,
pursuant to § 12-63c (d). See Wilton Campus 1691, LLC
v. Wilton, 191 Conn. App. 712, 731, 736, 216 A.3d 653(2019). Given the distinction between clerical errors
and errors of substance elucidated in case law from
this court and sister state courts, I conclude that the
assessor’s delay in imposing the penalties under § 12-
63c (d) was a clerical error for purposes of § 12-60, thus
allowing him to correct it beyond the time limitation
set forth in General Statutes § 12-55 (b).3 Because I
would reverse the judgment of the Appellate Court, I
respectfully dissent in part.
I begin by noting my agreement with the facts and
procedural history recited in the majority opinion. I
also agree with part I of the majority opinion, in which
the majority concludes that the penalties imposed under
§ 12-63c (d) are ‘‘ ‘assessment[s] . . . required by
law’ ’’ within the meaning of § 12-55 (b). Part I of the
majority opinion. I part company with the majority inso-
far as it concludes that the assessor did not have author-
ity under § 12-60 to correct the grand list to reflect
the imposition of the penalties because the assessor
intentionally delayed imposing the penalties, which ren-
dered his mistake substantive rather than clerical.
As the majority notes, whether the assessor’s mistake
is a clerical error for purposes of § 12-60 presents an
issue of statutory construction, which is a question of
law over which we exercise plenary review. See, e.g.,
Boisvert v. Gavis, 332 Conn. 115, 141, 210 A.3d 1 (2019).
It is well settled that we follow the plain meaning rule
pursuant to General Statutes § 1-2z in construing stat-
utes ‘‘to ascertain and give effect to the apparent intent
of the legislature.’’ (Internal quotation marks omitted.)
Sena v. American Medical Response of Connecticut,
Inc., 333 Conn. 30, 45, 213 A.3d 1110 (2019); see id.,
45–46 (setting forth plain meaning rule). Beginning with
the text, § 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 omis-
sion or mistake occurred, and the tax shall be levied
and collected according to such corrected assess-
ment. . . .’’
In determining whether the assessor’s action in this
case was ‘‘clerical’’ for purposes of § 12-60, we do not
write on a blank slate. See, e.g., Commissioner of Emer-
gency Services & Public Protection v. Freedom of Infor-
mation Commission, 330 Conn. 372, 384, 194 A.3d 759(2018). As the majority observes, this court has consid-
ered the scope of § 12-60 in two venerable cases, Recon-
struction Finance Corp. v. Naugatuck, 136 Conn. 29,
68 A.2d 161 (1949), and National CSS, Inc. v. Stamford,
195 Conn. 587, 489 A.2d 1034 (1985), which I read to
hold that an error is not clerical when it pertains to the
substance or subject of the assessment. For example,
in Reconstruction Finance Corp., this court concluded
that an assessor’s error as to which personal property
owned by a taxpayer was subject to taxation was more
than a clerical error because ‘‘it concerned the very
substance and extent of the assessment.’’ Reconstruc-
tion Finance Corp. v. Naugatuck, supra, 32. Similarly,
in National CSS, Inc. v. Stamford, supra, 589–90, this
court considered an instance in which a taxpayer came
to realize that it was not actually required to pay per-
sonal property taxes on computer equipment after it
had paid such taxes. There, this court held that the
taxpayer’s mistake was not clerical in nature because,
‘‘although mistaken, [it] was deliberate and intentional
. . . not clerical, [and could] only be characterized as
an error of substance.’’ (Emphasis added.) Id., 596.
I respectfully disagree with the majority’s conclusion
that National CSS, Inc., and Reconstruction Finance
Corp. control the present case. Neither contains a con-
struction of the statute that limits the definition of cleri-
cal error as to exclude mistakes made during the execu-
tion of ministerial duties, such as filing an assessment.
Both cases are distinguishable from the present case
because they implicated situations in which the sub-
stance of the assessment—indeed, its very subject—
was the subject of the mistake. This distinction is con-
sistent with decisions of sister state courts construing
similar statutes, which demonstrate that the subject of
the mistake is a significant consideration in determining
if an error is clerical or one of substance.4 See American
Legion, Hanford Post 5 v. Cedar Rapids Board of
Review, 646 N.W.2d 433, 439 (Iowa 2002) (mistake of
writing or copying is clerical whereas mistake of law
or judgment in assessing property is error of substance);
Bridgewater Interiors v. Detroit, Docket No. 241136,
2003 WL 22796986, *2 (Mich. App. November 25, 2003)
(definition of clerical error was not restricted to only
typographical errors, but does not include assessor’s
substantive decision after considering all relevant
facts); Collin County Appraisal District v. Northeast
Dallas Associates, 855 S.W.2d 843, 846–47 (Tex. App.
1993) (Texas property tax code defines clerical error
as ‘‘an error . . . that is or results from a mistake or
failure in writing, copying, transcribing, entering or
retrieving computer data, computing, or calculating
. . . [but] does not include an error that is or results
from a mistake in judgment or reasoning in the making
of the finding or determination’’ (internal quotation
marks omitted)); Commonwealth v. Richmond-Peters-
burg Bus Lines, Inc., 204 Va. 606, 610, 132 S.E.2d 728(1963) (clerical errors usually involve mistake by clerk
or agent that does not require judicial consideration or
discretion); Meckem v. Carter, 323 P.3d 637, 643 (Wyo.
2014) (‘‘[a] clerical error is a mistake or omission of a
mechanical nature that prevents the judgment as
entered from accurately reflecting the judgment that
was rendered’’ (internal quotation marks omitted)). But
see St. Catherine Hospital v. Roop, 34 Kan. App. 2d
638, 639–40, 645, 122 P.3d 414 (2005) (assessor’s mis-
taken guess of building materials when evaluating prop-
erty was clerical error).
In the present case, the Wilton assessor mistakenly
delayed imposing the penalties until after the signing
of the grand list. The majority agrees with the Appellate
Court’s conclusion that, ‘‘because the assessor’s omis-
sion of the late filing penalties at issue from the 2014
grand list at the time he signed it was of a deliberate
nature such that [the assessor] at the time actually
intended the results that occurred, it cannot be said to
be clerical.’’ (Internal quotation marks omitted.) Part
II of the majority opinion, quoting Wilton Campus 1691,
LLC v. Wilton, supra, 191 Conn. App. 734. I, however,
agree with the defendant that the assessor’s mistake is
not substantive because it does not relate to the amount
or propriety of the assessment itself. Unlike the assess-
ments at issue in Reconstruction Finance Corp. v. Nau-
gatuck, supra, 136 Conn. 31, and National CSS, Inc.
v. Stamford, supra, 195 Conn. 589–90, the assessor’s
mistake was deliberate only as to the time of filing, and
it did not relate to the substance of the penalties or
the ultimate outcome of the assessment. Because the
assessor’s mistake was limited to the ministerial task
of filing the assessment and did not alter the content
of the assessment, I conclude that it was a clerical error
subject to correction under § 12-60 and not an error of
substance. Accordingly, I conclude that the Appellate
Court improperly reversed the trial court’s judgment
and sustained the plaintiffs’ tax appeals on the ground
that ‘‘§ 12-60 does not apply so as to permit the retroac-
tive adjustment to the assessments on the basis of the
late filing penalties.’’ Wilton Campus 1691, LLC v. Wil-
ton, supra, 734.
Because I would reverse the judgment of the Appel-
late Court, I respectfully dissent in part.
1
General Statutes § 12-63c (d) provides: ‘‘Any owner of such real property
required to submit information to the assessor in accordance with subsection
(a) of this section for any assessment year, who fails to submit such informa-
tion as required under said subsection (a) or who submits information in
incomplete or false form with intent to defraud, shall be subject to a penalty
equal to a ten per cent increase in the assessed value of such property for
such assessment year. Notwithstanding the provisions of this subsection,
an assessor or board of assessment appeals shall waive such penalty if the
owner of the real property required to submit the information is not the
owner of such property on the assessment date for the grand list to which
such penalty is added. Such assessor or board may waive such penalty upon
receipt of such information in any town in which the legislative body adopts
an ordinance allowing for such a waiver.’’
2
General Statutes § 12-60 provides: ‘‘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 follow-
ing the tax due date relative to which such omission or mistake occurred,
and the tax shall be levied and collected according to such corrected assess-
ment. In the event that the issuance of a certificate of correction results in
an increase to the assessment list of any person, written notice of such
increase shall be sent to such person’s last-known address by the assessor
or board of assessment appeals within ten days immediately following the
date such correction is made. Such notice shall include, with respect to
each assessment list corrected, the assessment prior to and after such
increase and the reason for such increase. Any person claiming to be
aggrieved by the action of the assessor under this section may appeal the
doings of the assessor to the board of assessment appeals as otherwise
provided in this chapter, provided such appeal shall be extended in time to
the next succeeding board of assessment appeals if the meetings of such
board for the grand list have passed. Any person intending to so appeal to
the board of assessment appeals may indicate that taxes paid by him for
any additional assessment added in accordance with this section, during
the pendency of such appeal, are paid ‘under protest’ and thereupon such
person shall not be liable for any interest on the taxes based upon such
additional assessment, provided (1) such person shall have paid not less
than seventy-five per cent of the amount of such taxes within the time
specified or (2) the board of assessment appeals reduces valuation or
removes items of property from the list of such person so that there is no
tax liability related to additional assessment.’’
3
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. . . .’’
4
I also find instructive a line of cases from this court distinguishing
between judicial errors and clerical errors in guiding our determination of
whether an assessor’s error is clerical or one of substance for purposes of
§ 12-60. We have held that filing mistakes that cause the judgment file to be
inconsistent with the decision rendered are clerical rather than substantive
errors. See Brown v. Clark, 81 Conn. 562, 569, 71 A. 727 (1909) (failing to
properly include interest for certain period in filing judgment was clerical
mistake and not judicial error). Similarly, when a court seeks to correct a
phrasing mistake that does not affect the substance of the judgment itself,
this court has held that such a change is not substantive in nature. See
Blake v. Blake, 211 Conn. 485, 495–96, 560 A.2d 396 (1989) (trial court’s
changed characterization of judgment was not substantive change). When
the court seeks to correct a mistake by altering the contents of the judgment
itself, however, it makes a substantive rather than a clerical change. See
Morici v. Jarvie, 137 Conn. 97, 104–105, 75 A.2d 47 (1950) (modification to
foreclosure judgment sought to correct error of substance because it altered
details of judgment); Goldreyer v. Cronan, 76 Conn. 113, 117–18, 55 A. 594(1903) (failure to include interest in judgment as rendered, rather than as
recorded, was error of substance).