Peerless Realty, Inc. v. Stamford ( 2022 )

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PEERLESS REALTY, INC. v. CITY
OF STAMFORD ET AL.
(AC 43448)
Alvord, Cradle and Flynn, Js.
Syllabus
The plaintiff property owner sought reimbursement from the defendants,
the city and its tax assessor, for certain real property taxes paid to the
city. In 2017, the plaintiff discovered that the city’s tax assessment
records listed its property as being comprised of 1.15 acres, rather than
the 0.89 acres that the plaintiff’s appraiser had determined in 1995 or
the 0.88 acres that it had been surveyed at in 2008. The plaintiff contacted
the tax assessor, who confirmed that the discrepancy was the result of
an error and indicated that it likely had occurred when the city converted
its records to an electronic system in 1993. The tax assessor corrected
the error, credited the plaintiff for the excess amount it had paid in
2016, the then current tax year, informed the plaintiff that, pursuant to
the applicable statutes (§§ 12-60 and 12-129), the city could only refund
the plaintiff for excess payments made during the prior three years,
and sent the plaintiff an application for reimbursement for the excess
amounts paid for the 2014 and 2015 tax years. Instead of completing
the application, the plaintiff sent a letter to the defendants demanding
a refund of all excess taxes paid since 1993. The defendants’ response
reiterated that any claim for a refund going back more than three years
was time barred by the applicable statutes. The plaintiff filed its com-
plaint, and, in response, the defendants asserted six special defenses,
including that the statute of limitations set forth in §§ 12-60 and 12-129
precluded the plaintiff from bringing a claim arising from a clerical
mistake in the assessment of taxes on the property more than three
years after the applicable due date and that the plaintiff’s failure to take
advantage of the statutory remedies available to it precluded it from
recovering pursuant to a claim for unjust enrichment. The defendants
then filed a motion for summary judgment. The plaintiff opposed the
motion, claiming that its complaint set forth common-law restitution
and unjust enrichment claims, rather than claims pursuant to §§ 12-60
and 12-129, that the defendants had the burden of proof on the issue
of the applicability of §§ 12-60 and 12-129 because they raised such
claim in their special defenses, and that the defendants failed to sustain
that burden because they failed to prove that the assessment error was
clerical. The trial court granted the defendants’ motion and the plaintiff
appealed to this court. Held that the defendants were entitled to judg-
ment as a matter of law and the trial court did not err in rendering
summary judgment in their favor: the plaintiff was precluded from
asserting a common-law claim for unjust enrichment because, contrary
to its assertions, the applicable statutes were sufficient to redress the
plaintiff’s grievances regardless of how the property assessment error
occurred, as §§ 12-60 and 12-129 apply to errors that are clerical in
nature and certain other applicable statutes (§§ 12-117a and 12-119),
raised at the hearing on the motion for summary judgment, apply to
errors that are nonclerical; moreover, the fact that the plaintiff failed
to take advantage of the statutory remedies available to it within the
applicable statutes of limitations did not render the statutory scheme
inadequate or allow the plaintiff to circumvent the state taxation scheme
by way of the common law; furthermore, because the statutory scheme
was adequate regardless of the cause of error, the cause of error was
not a genuine issue of material fact.
Argued January 13—officially released March 29, 2022
Procedural History
Action for reimbursement of real property taxes paid,
brought to the Superior Court in the judicial district
of Stamford-Norwalk, where the court, Hernandez, J.,
granted the defendants’ motion for summary judgment
and rendered judgment thereon, from which the plain-
tiff appealed to this court. Affirmed.
Glen A. Canner, for the appellant (plaintiff).
Barbara L. Coughlan, assistant corporation counsel,
for the appellees (defendants).
Opinion
ALVORD, J. This case involves a dispute over the
remedies available to a taxpayer for reimbursement of
property taxes levied on an apartment building follow-
ing the tax assessor’s erroneous recordation, dating
back to 1993, of the property’s acreage. The plaintiff
property owner, Peerless Realty, Inc., appeals from the
judgment of the trial court rendered following the grant-
ing of the motion for summary judgment filed by the
defendants, the city of Stamford (city) and the Stamford
tax assessor, Gregory Stackpole.1 On appeal, the plain-
tiff claims that the court erred in rendering summary
judgment because genuine issues of material fact exist
and because the defendants were not entitled to judg-
ment as a matter of law. We affirm the judgment of the
trial court.
The record before the trial court, viewed in the light
most favorable to the plaintiff as the nonmoving party,
reveals the following facts and procedural history. The
property at issue, 3 Hackett Circle West, Stamford
(property), is a three-story converted mansion that con-
tains thirteen rental units. In 1976, Edward Jordan,
along with his brother and another investor, purchased
the property. In July, 1981, the three individuals trans-
ferred their interests in the property to the plaintiff
corporation. The two brothers shared ownership of the
corporation until 1995, when Jordan bought out his
brother’s interest in the plaintiff corporation, becoming
the sole owner. As part of the process of purchasing
his brother’s ownership interest, Jordan and his brother
each hired an appraiser to value the property; both
appraisers stated that the property was 0.89 acres. Fur-
ther, in April, 2008, Jordan hired a professional land
surveyor to survey the property. The surveyor deter-
mined that the property was 0.88 acres in size.
As president of the corporation, Jordan paid the prop-
erty taxes on this parcel as billed by the city.2 In or
around July, 2017, Jordan hired a tax review service
‘‘to try to reduce [his] taxes . . . .’’ During the course
of that engagement, Jordan was shown a printout from
the city’s tax assessment records that listed the property
as being comprised of 1.15 acres rather than 0.89 or
0.88 acres. Jordan, realizing that the property’s acreage
must have been recorded incorrectly, brought the error
to the attention of Stackpole, who determined that there
was indeed an error and told Jordan that he ‘‘didn’t
know how it actually happened’’ but thought that ‘‘[the
error] occurred when the city converted its manual
field cards to the electronic Computer Assisted Mass
Appraisal . . . system’’ in 1993. Stackpole also
informed Jordan that he would be permitted to refund
only the excess payments for the previous three years,
as ‘‘the city only goes [back] three years’’ because ‘‘a
statute . . . dictated how far back he could go.’’ Stack-
pole promised to fix the error in the city’s records, and
the property has been taxed as 0.89 acres since the
2017 tax year.
After this meeting, Stackpole sent the plaintiff an
application for refund/transfer of property taxes spe-
cific to tax years 2014 and 2015, with a total refund
amount listed as $12,609.66 and marked as relating to
General Statutes § 12-129,3 a request for a refund of
‘‘duplicate/excess payment(s).’’ Jordan did not fill out
this application because he ‘‘wasn’t accepting that’’ and
did not want to jeopardize his right to claim a refund
in connection with other years. He did accept a credit
of $6577.56 for 2016, the then current tax year.
On October 24, 2017, instead of filing the application
for a refund, the plaintiff’s attorney sent a letter to the
defendants demanding a refund of all of the excess
taxes the plaintiff had paid since 1993. The city’s assis-
tant corporation counsel responded on November 1,
2017, writing that ‘‘any claim for a refund going back
more than three years from the tax due date is time
barred under General Statutes § 12-60.’’4
On December 28, 2017, the plaintiff commenced this
action by way of a two count complaint,5 in which it
alleged that it had been ‘‘overcharged . . . more than
$150,000 in taxes’’ since 1993, and that, ‘‘[a]s a result
of the defendants’ action [it had] suffered and contin-
ue[d] to suffer damages.’’ The plaintiff further alleged
that the defendants had been unjustly enriched as a
result of the overpaid taxes. The plaintiff sought com-
pensatory damages, interest, attorney’s fees, and costs.
On February 13, 2018, the defendants filed an answer
and asserted the following six special defenses: (1)
‘‘[t]he plaintiff failed to take advantage of the statutory
remedy available to it for a refund of taxes in a timely
manner precluding the remedy of unjust enrichment’’;
(2) ‘‘[t]he statute of limitations set out in . . . [§§] 12-
60 and 12-129 precludes the bringing of a claim arising
from a clerical mistake in the assessment of taxes more
than three years from the date the tax was due’’; (3)
‘‘[t]ax payments made for which no timely application
for refund was made under [§] 12-129 . . . perma-
nently remain the property of the city’’; (4) ‘‘[t]he plain-
tiff has failed to follow the procedure set out in . . .
[§] 12-60 . . . and is, therefore, precluded from bring-
ing this action’’; (5) ‘‘[t]he first count fails to set out a
valid cause of action’’; and (6) ‘‘[t]he second count fails
to set out a valid cause of action.’’ (Emphasis added.)
The plaintiff denied the allegations of the special
defenses.
On February 28, 2019, the defendants filed a motion
for summary judgment and, later, a memorandum of
law in support of that motion. In their memorandum,
the defendants noted that they ‘‘presum[ed]’’ that the
first count of the complaint was brought pursuant to
§§ 12-60 and 12-129. The defendants then asserted that
‘‘the plaintiff is precluded from bringing a claim arising
from a clerical mistake in the assessment of taxes more
than three years from the date the tax was due’’; ‘‘tax
payments made for which no timely application for a
refund was made under [§] 12-129 . . . permanently
remain the property of the city’’; and ‘‘the plaintiff’s
failure to take advantage of the statutory remedy avail-
able to it for a refund of taxes in a timely manner
precludes it from recovering under the remedy of unjust
enrichment.’’ The defendants also asserted that ‘‘the
plaintiff’s failure to follow the procedure set out in
[§] 12-60 . . . precludes it from bringing the claims
asserted . . . .’’6
On April 22, 2019, the day on which the defendants’
motion for summary judgment was to be argued, the
plaintiff filed a memorandum in opposition to the
motion for summary judgment. The plaintiff first repre-
sented that the first count of its complaint ‘‘sets forth
a restitution claim seeking reimbursement of excess
real estate taxes . . . .’’ The plaintiff then argued that,
because the defendants raised §§ 12-60 and 12-129 in
their special defenses, they ‘‘ha[d] the burden of proof
on that issue.’’ The plaintiff further argued that the
defendants failed to sustain that burden because both
statutes apply only to ‘‘ ‘clerical’ errors’’ and the defen-
dants ‘‘have not sustained their burden of proof that
the mistake herein was ‘clerical.’ ’’ In arguing that the
defendants did ‘‘not [sustain] their burden’’ to show
that the error was clerical, the plaintiff relied on the
fact that Stackpole did not know exactly how the error
occurred and ‘‘ ‘surmise[d]’ ’’ that it occurred when the
records were digitized. The plaintiff then relied on
National CSS, Inc. v. Stamford, 195 Conn. 587, 597,
489 A.2d 1034 (1985), for the proposition that ‘‘[c]om-
mon-law rights may be resorted to where statutory pro-
cedures are inadequate.’’ Finally, the plaintiff argued
that ‘‘[t]here are genuine issues as to material fact
including but not limited to how and when the plaintiff’s
property . . . came to be stated on the tax assessor’s
records as 1.15 acres as opposed to 0.88 acres.’’
Also on April 22, 2019, the court, Hernandez, J., heard
oral argument on the motion for summary judgment,
during which the defendants argued, inter alia, that
the plaintiff’s claims were ‘‘precluded because there’s
a statutory scheme.’’ At the outset, the defendants’
counsel noted her surprise at the plaintiff’s representa-
tion that count one of the complaint was not intended
to be a claim pursuant to §§ 12-60 and 12-129 and its
suggestion that the error was anything other than cleri-
cal. In light of the plaintiff’s new representations, the
defendants’ counsel referred the court to other provi-
sions of title 12 of the General Statutes, namely General
Statutes §§ 12-117a7 and 12-1198 and argued: ‘‘If you
don’t like how your property is assessed, you have the
right under [§] 12-117[a] . . . to appeal to the Board
of Assessment Appeals’’; ‘‘you can [also] file a claim
under [§] 12-119, asserting that [the assessment] was
manifestly unjust or for some other reason wrongful’’;
and, finally, ‘‘if there’s a clerical error . . . [the tax
assessor] can make a change to the grand list going
back three years. That’s [§§] 12-60 [and] 12-129.’’ The
defendants relied on National CSS, Inc. v. Stamford,
supra, 195 Conn. 587, for their proposition that, where
‘‘[t]here’s a statutory scheme in play, you can follow
the statutory scheme. If you don’t, you’re out of luck.
You can’t go and claim unjust enrichment. You can’t
claim another common-law remedy, an equitable rem-
edy.’’ The defendants continued: ‘‘A taxpayer who has
not sought redress in an appropriate manner is fore-
closed from continuing litigation outside these stat-
utes.’’ In response, the plaintiff maintained its position
that the defendants had the burden to show that the
error at issue was clerical. The plaintiff’s counsel did
not address the defendants’ arguments with respect to
the relief available under §§ 12-117a and 12-119 and
further argued that, because §§ 12-60 and 12-129 were
not applicable, as there was no proof of clerical error,
the plaintiff could ‘‘pursue [its] common-law rights.’’
On August 20, 2019, the court granted the defendants’
motion for summary judgment but failed to state the
factual or legal basis for its decision. On September 30,
2019, the plaintiff appealed from the court’s grant of
summary judgment and also filed a motion, captioned
‘‘plaintiff’s motion to reargue and/or for clarification/
articulation of court decision,’’ in which it argued that,
‘‘[i]n order to prosecute [its] appeal [it] need[ed] to
know the grounds upon which the court granted the
defendants’ motion for summary judgment . . . .’’ The
court summarily denied the motion.
On March 24, 2020, the plaintiff filed a motion for
articulation, and the defendants thereafter filed a
responsive memorandum of law. On August 10, 2020,
the court summarily denied the motion for articulation,
stating, ‘‘For the reasons set forth in the memorandum
of the defendant-appellee ([docket entry] #137.00), the
city of Stamford, the plaintiff-appellant’s motion for
articulation is denied.’’
On August 20, 2020, the plaintiff filed with this court
a motion for review of the denial of its motion for
articulation. This court granted the motion and ordered
the trial court to articulate the factual and legal basis for
its ruling granting the defendants’ motion for summary
judgment. Thereafter, on December 7, 2020, the court
issued a memorandum of decision explaining its grant
of the defendants’ motion for summary judgment.
In its memorandum of decision, the court treated the
first count of the complaint as a claim pursuant to §§ 12-
60 and 12-129 and determined, after considering the
time limitations contained in §§ 12-60 and 12-129, that
‘‘the plaintiff cannot recover a refund of any excess
taxes paid more than three years after the taxes were
due.’’9 In addition, the court determined that, because
the plaintiff ‘‘failed to follow the procedures prescribed
by . . . § 12-60 in a timely manner . . . [it] is pre-
cluded from pursuing a claim of unjust enrichment.’’10
On appeal, the plaintiff claims that there ‘‘are genuine
issues as to material fact . . . concerning [its] claims
that [the property] has been assessed as if it were 1.15
acres as opposed to 0.88 acres and as a result the plain-
tiff has suffered damage.’’ According to the plaintiff,
the cause of the assessment error is disputed, rendering
§§ 12-60 and 12-129 inapplicable to its case. The plaintiff
argues that the court erred in concluding that its claims
were foreclosed because it maintains that the current
statutory scheme is inadequate, thereby allowing it to
assert a common-law claim for unjust enrichment. We
disagree and affirm the judgment of the trial court,
albeit on different grounds.11
We first set forth our well established standard of
review on appeal following a trial court’s granting of a
motion for summary judgment. ‘‘Practice Book § 17-
49 provides that summary judgment shall be rendered
forthwith if the 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. As an appellate tribunal,
[w]e must decide whether the trial court erred in
determining that there was no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The test is whether a party would be enti-
tled to a directed verdict on the same facts. . . . A
material fact is a fact which will make a difference in
the result of the case. . . . [I]ssue-finding, rather than
issue-determination, is the key to the procedure. . . .
[T]he trial court does not sit as the trier of fact when
ruling on a motion for summary judgment. . . . [Its]
function is not to decide issues of material fact, but
rather to determine whether any such issues exist. . . .
‘‘The party seeking summary judgment has the bur-
den of showing the absence of any genuine issue [of]
material facts which, under applicable principles of sub-
stantive law, entitle him to a judgment as a matter of
law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact. . . . Our
review of the decision to grant a motion for summary
judgment is plenary. . . . We therefore must decide
whether the court’s conclusions were legally and logi-
cally correct and find support in the record.’’ (Citation
omitted; internal quotation marks omitted.) Mariano v.
Hartland Building & Restoration Co., 168 Conn. App.
768, 776–77, 148 A.3d 229 (2016).
We next set forth the applicable principles of a claim
sounding in unjust enrichment. ‘‘The right of recovery
for unjust enrichment is equitable, its basis being that
in a given situation it is contrary to equity and good
conscience for the defendant to retain a benefit which
has come to him at the expense of the plaintiff. . . .
Where, however, a statutory scheme exists for the
recovery of a benefit that is also recoverable at common
law, the common law right may be resorted to only
where the statutory procedures are inadequate.’’ (Cita-
tion omitted; internal quotation marks omitted.)
National CSS, Inc. v. Stamford, supra, 195 Conn. 597.
Therefore, we must address application of the relevant
statutory scheme.
The plaintiff argues that §§ 12-60 and 12-129 provide
an inadequate procedure for a taxpayer to obtain relief
because it disputes that the tax assessment error was
a ‘‘clerical omission or mistake . . . .’’ General Statutes
§ 12-60. Thus, in the plaintiff’s view, no statutory
scheme exists for recovery of the overpaid taxes. There-
fore, the plaintiff asserts that its claim for unjust enrich-
ment cannot be barred as a matter of law and it is
permitted to seek a refund of all excess taxes paid in
a claim for unjust enrichment.
In response, the defendants direct this court to the
statutory relief found in §§ 12-117a and 12-119. It is the
defendants’ position that §§ 12-117a and 12-119 set forth
a procedure for an assessment error that is not clerical
in nature and, therefore, the label put on the error is
irrelevant, as the statutory scheme provides redress for
clerical and nonclerical errors alike. Thus, even if the
error is nonclerical, as asserted by the plaintiff, compan-
ion provisions in title 12 provide redress for the tax-
payer. We agree with the defendants that the statutory
scheme precludes this common-law claim for unjust
enrichment.12
Section 12-60 provides the procedure for the correc-
tion of a clerical omission or mistake in the assessment
of taxes. A request for correction must be made ‘‘not
later than three years following the tax due date relative
to which such omission or mistake occurred . . . .’’
General Statutes § 12-60.
Section 12-129 provides the taxpayer with a proce-
dure to follow in order to obtain a refund of taxes paid
in excess due to ‘‘a clerical error on the part of the
assessor or board of assessment appeals . . . .’’ As in
§ 12-60, an application for a refund must be made ‘‘three
years from the date such tax was due . . . .’’ General
Statutes § 12-129. Further, § 12-129 specifically provides
in relevant part that ‘‘[a]ny payment for which no timely
application is made or granted under this section shall
permanently remain the property of the municipality.
. . .’’
Section 12-117a sets forth the process for those
‘‘claiming to be aggrieved by the action of the board of
tax review or the board of assessment appeals . . . .’’
An application must be made ‘‘within two months from
the date of the mailing of notice of [the board’s] action
. . . .’’ General Statutes § 12-117a. The section ‘‘pro-
vide[s] a method by which an owner of property may
directly call in question the valuation placed by asses-
sors upon his property . . . .’’ (Internal quotation
marks omitted.) Konover v. West Hartford, 242 Conn.
727, 734, 699 A.2d 158 (1997).
Section 12-119 addresses the procedure applicable
when, inter alia, ‘‘a tax . . . 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 . . . .’’
Pursuant to § 12-119, application for relief must be made
to the Superior Court ‘‘prior to the payment of such
tax’’ and ‘‘within one year from the date as of which
the property was last evaluated for purposes of taxa-
tion . . . .’’
We next set forth the legal principles that guide our
review of the applicable statutory scheme. In National
CSS, Inc., our Supreme Court determined that ‘‘the pro-
cedure available [in § 12-60] was more than sufficient
in providing the plaintiff [taxpayer] a method by which
a refund could be obtained,’’ and, therefore, a claim for
unjust enrichment was not available to the taxpayer
who erroneously paid duplicative taxes. National CSS,
Inc. v. Stamford, supra, 195 Conn. 596–97. In so holding,
the court relied on the following principle: ‘‘Public pol-
icy requires . . . that this court not permit taxes col-
lected or paid to be the subject of perpetual litigation,
at any time, to suit the convenience of the taxpayer.’’
Id., 597–98; see also Danbury v. Dana Investment
Corp., 249 Conn. 1, 15, 730 A.2d 1128 (1999) (‘‘The
rationale for this rule is the need on the part of the
government for fiscal certainty. A municipality, like any
governmental entity, needs to know with reasonable
certainty what its tax base is for each fiscal year, so
that it responsibly can prepare a budget for that year.’’).
Furthermore, ‘‘[a] taxpayer who has not sought redress
in an appropriate manner is foreclosed from continuing
litigation outside [of title 12].’’ National CSS, Inc. v.
Stamford, supra, 598.
Keeping these principles in mind, we are satisfied
that the provisions of §§ 12-60, 12-117a, 12-119, and 12-
129 together create a statutory scheme that is sufficient
to redress the plaintiff’s grievances, regardless of how
the error occurred. See id., 597. Specifically, because
the provisions of title 12 provide sufficient procedures
in cases in which excess taxes are paid due to clerical
errors, improper property valuation, and ‘‘manifestly
excessive’’ assessments; General Statutes §§ 12-60, 12-
117a, 12-119, and 12-129; the cause of the current error
is irrelevant: no matter how the error occurred, the
provisions of title 12 provide a process through which
the plaintiff could have sought relief. See Mariano v.
Hartland Building & Restoration Co., supra, 168 Conn.
App. 777. As the defendants aptly point out, ‘‘[i]f it was
a clerical error, the plaintiff [could] request a refund
going back three years; if it was not, the plaintiff [was]
limited to pursuing its remedies under [§] 12-117a or
[§] 12-119, which limit recovery even more than . . .
§ 12-60 and/or § 12-129.’’
Our conclusion is particularly appropriate given that
the defendants concede the applicability of §§ 12-60 and
12-129 to the present facts and admit that there was a
clerical error. Indeed, when the error was discovered,
Stackpole made clear that, on application, the plaintiff
would receive a refund pursuant to those statutes for
the preceding three tax years. Furthermore, the plaintiff
has failed to provide us with any reason as to why the
statutory scheme should be held insufficient. Finally,
the fact that the plaintiff failed to take advantage of
the statutory remedies does not render the statutory
scheme inadequate nor does it allow the plaintiff to
‘‘circumvent the state taxation scheme by way of the
common law.’’ National CSS, Inc. v. Stamford, supra,
195 Conn. 597. Therefore, we conclude that the plaintiff
is precluded from asserting a claim for unjust enrich-
ment. See id.Thus, contrary to the plaintiff’s claim, the cause of
the error cannot be material to the issue presented in
this case. Because the statutory scheme is adequate
regardless of the cause of the error, a determination as
to how the error occurred could not change the result
of the case, and, therefore, the cause of the error cannot
be a genuine issue of material fact.13 See Mariano v.
Hartland Building & Restoration Co., supra, 168 Conn.
App. 777. As a result, the defendants were entitled to
judgment as a matter of law and the court correctly
rendered summary judgment.14
The judgment is affirmed.
In this opinion the other judges concurred.
1
Hereinafter, we refer to the city of Stamford and the Stamford tax asses-
sor, Gregory Stackpole, collectively, as the defendants, and individually by
name where appropriate.
2
These bills did not list the property acreage on record with the office
of the tax assessor.
3
General Statutes § 12-129 provides in relevant part: ‘‘Any person, firm
or corporation . . . who, by reason of a clerical error on the part of the
assessor or board of assessment appeals, pays a tax in excess of that which
should have been assessed against his property, or who is entitled to a
refund because of the issuance of a certificate of correction, may make
application in writing to the collector of taxes for the refund of such amount.
Such application shall be delivered or postmarked by the later of (1) three
years from the date such tax was due, (2) such extended deadline as the
municipality may, by ordinance, establish, or (3) ninety days after the dele-
tion of any item of tax assessment by a final court order or pursuant to
subdivision (3) of subsection (c) of section 12-53 or section 12-113. Such
application shall contain a recital of the facts and shall state the amount
of the refund requested. The collector shall, after examination of such
application, refer the same, with his recommendations thereon, to the board
of selectmen in a town or to the corresponding authority in any other
municipality, and shall certify to the amount of refund, if any, to which the
applicant is entitled. . . . Any payment for which no timely application is
made or granted under this section shall permanently remain the property
of the municipality. . . .’’
4
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 cor-
rected assessment. . . . 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. . . .’’
5
Count one of the complaint alleged:
‘‘1. The plaintiff Peerless Realty, Inc., owns 3 Hackett Circle West, Stam-
ford, CT.
‘‘2. 3 Hackett Circle West is a three-story converted mansion apartment
building containing thirteen rental units situated on 0.88 of an acre.
‘‘3. For the past twenty-five years—since 1993—the defendants city of
Stamford and Stamford tax assessor have been taxing 3 Hackett Circle West
as if it consisted of 1.15 acres.
‘‘4. This has resulted in substantial overcharging of the plaintiff for taxes.
‘‘5. For instance—for October 1, 2016 Grand List taxes, the defendants
billed the plaintiff $42,211.12 for taxes when the correct amount was
$35,605.56—a difference of $6605.56.
‘‘6. This has been going on for twenty-five years.
‘‘7. From 1993 to present—the defendants city of Stamford and Stamford
tax assessor have overcharged the plaintiff more than $150,000 in taxes.
‘‘8. Under date of October 24, 2017, the plaintiff made a demand for a
refund of excess taxes collected.
‘‘9. The defendants denied the plaintiff’s request.
‘‘10. As a result of the defendants’ action, the plaintiff has suffered and
continues to suffer damages.’’
The second count of the complaint alleged:
‘‘1–9. Paragraphs 1 through 9, inclusive of the first count are hereby made
paragraphs 1 through 9 inclusive of the second count.
‘‘10. The defendants have been unjustly enriched.
‘‘11. As a result of the defendants’ action, the plaintiff has suffered and
continues to suffer damages.’’
6
In their memorandum in support of summary judgment, the defendants
additionally argued that, because the plaintiff ‘‘failed to alert the city to the
actual square footage of the lot when [Jordan] completed a data mailer in
2008,’’ it was negligent and could not recover the excess taxes it paid. The
defendants referred to a ‘‘Data Verification Report’’ that the city’s assessor
mailed to the plaintiff in 2008. It indicated that the property was 50,000
square feet in size, which, as noted by the trial court, is equivalent to 1.15
acres. The plaintiff received the report, corrected other information on the
report, and returned it to the assessor as instructed.
7
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, which
shall be accompanied by a citation to such town or city to appear before
said court. Such citation shall be signed by the same authority and such
appeal shall be returnable at the same time and served and returned in the
same manner as is required in case of a summons in a civil action. The
authority issuing the citation shall take from the applicant a bond or recogni-
zance to such town or city, with surety, to prosecute the application to
effect and to comply with and conform to the orders and decrees of the
court in the premises. Any such application shall be a preferred case, to be
heard, unless good cause appears to the contrary, at the first session, by
the court or by a committee appointed by the court. . . . If the assessment
made by the board of tax review or board of assessment appeals, as the
case may be, is reduced by said court, the applicant shall be reimbursed
by the town or city for any overpayment of taxes, together with interest
and any costs awarded by the court, or, at the applicant’s option, shall be
granted a tax credit for such overpayment, interest and any costs awarded
by the court. Upon motion, said court shall, in event of such overpayment,
enter judgment in favor of such applicant and against such city or town for
the whole amount of such overpayment, less any lien recording fees incurred
under sections 7-34a and 12-176, together with interest and any costs
awarded by the court. 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.’’
8
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 . . . prior
to the payment of such tax, 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 and shall be served and returned in the
same manner as is required in the case of a summons in a civil action, and
the pendency of such application shall not suspend action upon the tax
against the applicant. 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, and costs may be taxed at the discretion
of the court. If such assessment is reduced by said court, the applicant
shall be reimbursed by the town or city for any overpayment of taxes in
accordance with the judgment of said court.’’
9
Although the plaintiff makes passing reference in its appellate brief to
the first count of its complaint as ‘‘set[ting] forth a restitution claim,’’ the
plaintiff fails to raise or brief a claim on appeal that the trial court erred in
treating the first count of the complaint as a claim pursuant to §§ 12-60 and
12-129. We note that the defendants likewise understood the claim as brought
pursuant to those statutes, and the plaintiff previously referred to the case
only as ‘‘claiming damages and unjust enrichment.’’
10
In addition to its determination that the plaintiff could not pursue a
claim for unjust enrichment, the court also determined that there was no
genuine issue of material fact that the plaintiff was ‘‘negligent in failing to
address the discrepancy in a timely manner,’’ referring to the plaintiff’s
failure to act on the acreage/square foot error apparent in the 2008 ‘‘Data
Verification Report’’ that the tax assessor sent to the plaintiff. See footnote
6 of this opinion. The court concluded that the report put the plaintiff
on notice of the error and its claim for unjust enrichment was therefore
precluded.
11
‘‘In ruling on a motion for summary judgment, the court is not to decide
issues of fact; its function is to determine whether there are genuine issues
of material fact. . . . In opposing a motion for summary judgment, a party
is not required to present evidence necessary to prevail at trial, only evidence
sufficient to raise issues of fact. We may affirm the judgment of the court
on different grounds.’’ (Citation omitted.) Vaillancourt v. Latifi, 81 Conn.
App. 541, 544 n.4, 840 A.2d 1209 (2004).
12
In its principal appellate brief, the plaintiff notes that the defendants
did not expressly rely on §§ 12-117a and 12-119 until oral argument on their
motion for summary judgment. For the reasons that follow, we conclude
that we properly may address the applicability of §§ 12-117a and 12-119 to
this case.
First, we note that the complaint does not allege any intentional conduct
on the part of the defendants in the assessment error. Second, the defendants
asserted special defenses, two of which are particularly relevant. Specifi-
cally, the defendants asserted that ‘‘[t]he plaintiff failed to take advantage
of the statutory remedy available to it for a refund of taxes in a timely
manner precluding the remedy of unjust enrichment’’ and ‘‘[t]he plaintiff
has failed to follow the procedure[s] set out in . . . [§] 12-60 . . . and is,
therefore, precluded from bringing this action.’’ When asserting these special
defenses, and in filing their motion for summary judgment, the defendants
were responding to the complaint understood to be (1) a claim pursuant
to §§ 12-60 and 12-129 in count one and (2) presenting no dispute that the
error was clerical. As soon as the defendants became aware of the plaintiff’s
characterization of count one as distinct from a claim under §§ 12-60 and 12-
129, and the plaintiff’s dispute over the nature of the error, they appropriately
directed the trial court to consider §§ 12-117a and 12-119. The plaintiff had
ample opportunity during argument to respond to the authority cited by the
defendants but failed to take advantage of that opportunity. Further, at the
conclusion of oral argument, the court offered the plaintiff the opportunity
to file additional briefing, which the plaintiff ultimately declined. Thus, when
the defendants asserted their reliance on these provisions of title 12 at oral
argument on summary judgment, they were not raising a new claim but
rather were expounding on the defense that they had consistently put forth
since the inception of litigation, which is that a claim for unjust enrichment
is precluded when there is an adequate statutory scheme.
In addition, even if we were to conclude that the defendants’ reliance on
§§ 12-117a and 12-119 was not properly raised in the trial court proceedings,
our consideration of these statutes remains appropriate. ‘‘[O]rdinarily, we
will decline to address only a claim that is raised for the first time on appeal.
. . . [A] claim is an entirely new legal issue, whereas, [g]enerally speaking,
an argument is a point or line of reasoning made in support of or in opposition
to a particular claim. . . . Because [o]ur rules of preservation apply to
claims . . . [and not] to legal arguments . . . [w]e may . . . review legal
arguments that differ from those raised below if they are subsumed within
or intertwined with arguments related to the legal claim before the court.’’
(Citation omitted; emphasis in original; internal quotation marks omitted.)
Markley v. State Elections Enforcement Commission, 339 Conn. 96, 104–105
n.9, 259 A.3d 1064 (2021).
We further note that the defendants fully briefed the applicability of §§ 12-
117a and 12-119 in their appellate brief, and the plaintiff failed to offer any
response in its reply brief, beyond again noting that the defendants did not
expressly rely on §§ 12-117a and 12-119 until oral argument on their motion
for summary judgment.
13
The plaintiff also asserts on appeal that when the error occurred,
whether the error was the result of clerical error or deliberate action, and
‘‘what statutory procedures and/or common-law rights/remedies . . . the
plaintiff ha[s] available to recover overpayment of property taxes’’ are genu-
ine issues of material fact that preclude the entry of summary judgment.
We disagree.
With respect to the first of these additional assertions, the parties agree
that the error occurred in 1993, and, therefore, when the error occurred is
not at issue. Furthermore, as with the cause of the error, the timing of the
error has no impact on our conclusion that the plaintiff is foreclosed from
asserting a claim for unjust enrichment and, therefore, cannot be material.
The second of the plaintiff’s assertions is simply a restatement of the plain-
tiff’s argument that the cause of the error is a genuine issue of material
fact, which is resolved in the body of this opinion. The third of the plaintiff’s
assertions, as the defendants note, is an issue of law and not one of fact
and, therefore, cannot be a genuine issue of material fact that precludes
the entry of summary judgment.
14
The plaintiff also claims that the court erred in imposing on it the burden
of proof with respect to the defendants’ special defenses. According to the
plaintiff, because the defendants asserted §§ 12-60 and 12-129 in their special
defenses, they had the burden of proof with respect to the applicability of
those statutes. Therefore, the plaintiff asserts that, when the court stated
in its memorandum of decision that ‘‘[the plaintiff] has presented no evidence
that someone intentionally put down the wrong acreage for the property,’’
it ‘‘imposed on the plaintiff the burden to prove the defendants’ special
defenses.’’ Because we have determined that the cause of the error is irrele-
vant, we need not address the plaintiff’s claim with respect to the burden
of proof on that issue.