Fairfield Merrittview Ltd. Partnership v. City of Norwalk

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FAIRFIELD MERRITTVIEW LIMITED PARTNERSHIP
v. CITY OF NORWALK ET AL.
(AC 34950)
Alvord, Sheldon and Harper, Js.
Argued February 4—officially released April 15, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Arnold W. Aronson, judge
trial referee.)
Carolyn M. Colangelo, assistant corporation counsel,
with whom were Mario Coppola, corporation counsel,
and, on the brief, Robert F. Maslan, Jr., former corpora-
tion counsel, for the appellants (defendants).
Frank W. Murphy, with whom was Kara A. T. Mur-
phy, for the appellee (plaintiff).
Opinion
ALVORD, J. In this municipal tax appeal, the defen-
dant city of Norwalk1 appeals from the judgment of
the trial court sustaining the appeal of the plaintiffs,
Fairfield Merrittview Limited Partnership (limited part-
nership) and Fairfield Merrittview SPE, LLC (limited
liability company),2 from the assessor’s valuation of
property located at 383 Main Avenue in Norwalk. On
appeal, the defendant claims that (1) the court improp-
erly concluded that the plaintiffs had standing to appeal
the tax valuation of the subject property to the Superior
Court, and (2) the court’s calculation of the fair market
value of the subject property was clearly erroneous. We
agree with the defendant’s first claim and, accordingly,
reverse the judgment of the trial court.3
The subject property consists of an eight-story,
multitenant office building constructed in 1985 on 4.3
acres of land. Fairfield Merrittview Limited Partnership
acquired the property from PTM Realty, Inc., by deed
recorded in the Norwalk land records on October 24,
1994. Fairfield Merrittview Limited Partnership subse-
quently conveyed the property to Fairfield Merrittview
SPE, LLC, by deed recorded on June 12, 2007. The
defendant’s assessor thereafter determined the fair mar-
ket value of the property to be $49,036,800 as of October
1, 2008 (valuation date), and assessed the property at
70 percent of that value. Fairfield Merrittview Limited
Partnership, claiming that the assessment was grossly
excessive, appealed to the defendant’s board of assess-
ment appeals (board) seeking a reduction in the valua-
tion. Fairfield Merrittview SPE, LLC, was not a party
to that appeal. The board made no changes in the
assessment.
Pursuant to General Statutes § 12-117a,4 Fairfield
Merrittview Limited Partnership appealed from the
board’s decision to the Superior Court. Within thirty
days of the return date, it moved to amend its appeal
to add Fairfield Merrittview SPE, LLC, as a party plain-
tiff. The motion provided: ‘‘Fairfield Merrittview SPE,
LLC, has an interest in the real estate and the subject
matter of this appeal and should be joined as an addi-
tional party plaintiff.’’ The amended appeal and applica-
tion annexed to the motion alleged that Fairfield
Merrittview Limited Partnership and Fairfield Merritt-
view SPE, LLC, ‘‘on October 1, 2008, were the owner[s]’’
of the subject property. After the court, Hon. A. William
Mottolese, judge trial referee, granted the motion, the
defendant filed its answer, leaving the plaintiffs to their
proof with respect to the ownership of the property.
A trial to the court, Hon. Arnold W. Aronson, judge
trial referee, was held on December 14 and 15, 2011.
At that time, the plaintiffs submitted as exhibits the
1994 and 2007 deeds of conveyance. Additionally, the
plaintiffs submitted an appraisal prepared by Eric D.
Michel of Cushman & Wakefield of Connecticut, Inc.,
that indicated that the fair market value of the property
was $30,500,000 as of October 1, 2008. Michel testified
as to the methodology he employed to arrive at that
valuation. The defendant’s appraiser, Michael Fazio of
Kerin & Fazio, LLC, testified that the fair market value
of the property was $49,400,000 on the valuation date.
Fazio likewise provided the basis for his valuation.
After the evidentiary portion of the trial had con-
cluded, the court stated that it would allow the parties
to submit simultaneous posttrial briefs within thirty
days of their receipt of the transcript of the proceedings.
The plaintiffs’ counsel inquired whether reply briefs
could be filed. The court responded: ‘‘If either counsel
feels that it’s important to file a reply brief, talk to each
other. If you both agree, I will consent to the agreement
for a reply brief. If not, file a motion. Then if there is
an objection, I’ll hear the arguments and make a deci-
sion. But, hopefully, the briefs will contain all of the
information [so] that it will not be necessary for a reply
brief. But I won’t preclude you from doing that if you
feel it necessary.’’
The parties filed their posttrial briefs on April 25,
2012. In its posttrial brief, the defendant claimed that
the court lacked subject matter jurisdiction over the
tax appeal because the plaintiffs did not have standing
to appeal from the assessor’s valuation. The defendant
argued that Fairfield Merrittview Limited Partnership,
the limited partnership, did not own the property on
October 1, 2008, and, therefore, was not a party in
interest with the right to challenge the assessment
before the board. Fairfield Merrittview SPE, LLC, which
was a limited liability company that owned the property
on October 1, 2008, had not been a party to the appeal
before the board. The defendant claimed that this defect
was not cured by subsequently adding the limited liabil-
ity company as a party plaintiff after the appeal from the
board’s decision was commenced in the Superior Court.
The record reflects that neither party requested the
opportunity to file a reply brief. On August 6, 2012, the
court issued its memorandum of decision sustaining
the plaintiffs’ appeal. The court first addressed the issue
of standing: ‘‘As of October 1, 2008, at least one of the
two plaintiffs named in the amended [appeal] was the
record owner of the subject property, which is sufficient
to provide standing to maintain this appeal.’’ The court
then analyzed the evidence and determined that the fair
market value of the property was $34,059,753 as of
October 1, 2008. This appeal followed.
‘‘It is well established that [a] party must have stand-
ing to assert a claim in order for the court to have
subject matter jurisdiction over the claim. . . . Stand-
ing 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 represen-
tative 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. . . . [T]he court has a duty
to dismiss, even on its own initiative, any appeal that
it lacks jurisdiction to hear. . . . Where a party is found
to lack standing, the court is consequently without sub-
ject matter jurisdiction to determine the cause. . . .
Our review of the question of [a] plaintiff’s standing is
plenary. . . .
‘‘Connecticut law provides an avenue of appeal from
the decision of a municipal tax agency. . . . [General
Statutes §§] 12-117a and 12-119 clearly create causes
of action for taxpayers who have been aggrieved by
excessive and wrongful valuation of their property. Sec-
tion 12-117a provides taxpayers with an opportunity to
appeal to the Superior Court upon an allegation that
their property tax assessment is excessive. . . . At the
same time, [t]he general rule is that one party has no
standing to raise another’s rights.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Megin v. New Milford, 125 Conn. App. 35, 37–38, 6 A.3d
1176 (2010).
‘‘[I]t is the burden of the party who seeks the exercise
of jurisdiction in his favor . . . clearly to allege facts
demonstrating that he is a proper party to invoke judi-
cial resolution of the dispute. . . . [A]s a general rule,
a plaintiff lacks standing unless the harm alleged is
direct rather than derivative or indirect.’’ (Citations
omitted; internal quotation marks omitted.) O’Reilly v.
Valletta, 139 Conn. App. 208, 213, 55 A.3d 583 (2012),
cert. denied, 308 Conn. 914, 61 A.3d 1101 (2013). ‘‘[I]f
the injuries claimed by the plaintiff are remote, indirect
or derivative with respect to the defendant’s conduct,
the plaintiff is not the proper party to assert them and
lacks standing to do so. [When], for example, the harms
asserted to have been suffered directly by a plaintiff
are in reality derivative of injuries to a third party, the
injuries are not direct but are indirect, and the plaintiff
has no standing to assert them.’’ (Internal quotation
marks omitted.) Id., 214.
Moreover, ‘‘[a] court lacks discretion to consider the
merits of a case over which it is without jurisdiction
. . . . The subject matter jurisdiction requirement may
not be waived by any party, and also may be raised by
a party, or by the court sua sponte, at any stage of the
proceedings, including on appeal.’’ (Internal quotation
marks omitted.) Id., 213.
In the present case, the deeds of conveyance submit-
ted by the plaintiffs during the trial clearly established
that the limited liability company, Fairfield Merrittview
SPE, LLC, acquired the subject property by deed
recorded in the Norwalk land records on June 12, 2007.
On the date of the valuation, October 1, 2008, the limited
liability company was the sole owner of the property.
Nevertheless, Fairfield Merrittview Limited Partner-
ship, the limited partnership, was the entity that chal-
lenged the assessor’s valuation before the board even
though it had conveyed its interest in the property more
than a year prior to the valuation date. The actual owner
of the property, the limited liability company, did not
participate in that appeal.
When the board’s decision was appealed on July 1,
2009, to the Superior Court pursuant to § 12-117a, the
sole plaintiff was the limited partnership. In the initial
appeal and application, the limited partnership alleged
that Fairfield Merrittview Limited Partnership ‘‘was the
owner’’ of the property. That allegation, as evidenced
by the plaintiffs’ exhibits at trial, was incorrect. When
the appeal was amended, the plaintiffs then alleged that
Fairfield Merrittview Limited Partnership and Fairfield
Merrittview SPE, LLC, ‘‘were the owner[s]’’ of the prop-
erty. That allegation, too, was incorrect because no
evidence was presented that indicated Fairfield Merritt-
view Limited Partnership retained any interest in the
property after June 12, 2007.
The plaintiffs argue that the court properly deter-
mined that standing had been established because: (1)
‘‘[t]he business structure was changed, but, Fairfield
Merrittview SPE, LLC, is identical to Fairfield Merritt-
view [Limited Partnership], except for the name change
as a result of restructuring’’; (2) the amendment and
addition of Fairfield Merrittview SPE, LLC, was filed
within thirty days of the return date and was an amend-
ment as of right pursuant to Practice Book § 10-59;
(3) in effect, Fairfield Merrittview SPE, LLC, was a
successor legal entity with the same beneficial owners
as Fairfield Merrittview Limited Partnership and ‘‘with
the identical legal interest and standing to pursue the
appeal’’; and (4) the defendant ‘‘should not be able to
profit on appeal by its delay in raising the [standing]
issue until its posttrial brief,’’ thereby depriving the
plaintiffs of the opportunity ‘‘to address the issue of
subject matter jurisdiction with additional evidence of
standing.’’ We are not persuaded.
At the trial, Jeffrey Newman, the executive vice presi-
dent of Malkin Properties, which was the company that
managed the subject office complex, testified that he
‘‘believed’’ that the limited partnership and the limited
liability company experienced a change in ‘‘corporate
structure’’ and that they ‘‘essentially’’ had the same ben-
eficial owners. Michel, the plaintiffs’ appraiser, testified
that he ‘‘believed’’ Fairfield Merrittview SPE, LLC, was
‘‘the same entity’’ as Fairfield Merrittview Limited Part-
nership, but with ‘‘just a different name.’’ The fact
remains, however, that a limited partnership and a lim-
ited liability company5 are separate and distinct legal
entities. They are formed under different statutory pro-
visions. See, e.g., General Statutes §§ 34-9 et seq. and
34-100 et seq. There was no testimony or documentary
evidence to establish that the limited partnership and
the limited liability company in this case were the same
entity or that the limited liability company was a succes-
sor entity of the limited partnership. For example, there
was no evidence submitted that a change of name certif-
icate had been recorded in the land records. See General
Statutes § 47-12. There was no evidence that the limited
partnership converted to the limited liability company
pursuant to General Statutes § 34-199.6 Simply put, noth-
ing was presented to the court during the trial that
could lead to the conclusion that these two separate
entities had merged or were in fact one legal entity.7
The plaintiffs argue that the defendant did not timely
raise the issue of standing, thereby depriving them of
the opportunity to present additional evidence to the
court on that issue. As previously discussed, the issue
of standing implicates the court’s subject matter juris-
diction and may be raised at any stage of the proceed-
ings. See O’Reilly v. Valletta, supra, 139 Conn. App. 213.
‘‘When the issue involves either the trial court’s or this
court’s jurisdiction . . . we have no alternative but to
address the issue.’’ Ardmare Construction Co. v. Freed-
man, 191 Conn. 497, 498 n.4, 467 A.2d 674 (1983).
Furthermore, the plaintiffs were provided with an
opportunity to respond to the defendant’s claim that
they lacked standing to maintain the tax appeal. In its
posttrial brief, the defendant set forth its position that
the court lacked subject matter jurisdiction over the
appeal because Fairfield Merrittview Limited Partner-
ship did not own the property on October 1, 2008, and,
therefore, was not a party in interest with the right to
challenge the assessment before the board or to appeal
to the Superior Court from the board’s decision. At that
point, the plaintiffs could have requested the opportu-
nity to file a reply brief. The trial court expressly stated
that it would not preclude the parties from filing reply
briefs if they believed that it was necessary to do so.
The plaintiffs did not move for permission to file a reply
brief nor did they move to open the evidence to present
additional proof as to their aggrievement.
Accordingly, on the basis of the evidence that was
presented at trial, the court should have concluded that
Fairfield Merrittview Limited Partnership and Fairfield
Merrittview SPE, LLC, were two separate and distinct
legal entities. The appeal to the board from the asses-
sor’s valuation and the municipal tax appeal to the
Superior Court from the board’s decision both were
brought by Fairfield Merrittview Limited Partnership,
an entity that was not the record owner of the assessed
property. ‘‘[P]laintiffs are not fungible, even if they are
represented by the same attorney and have similar inter-
ests.’’ (Internal quotation marks omitted.) Megin v. New
Milford, supra, 125 Conn. App. 40. Because the plaintiffs
failed to demonstrate their requisite aggrievement
under § 12-117a, the court should have dismissed the
plaintiffs’ appeal.
The judgment is reversed and the case is remanded
with direction to dismiss the plaintiffs’ appeal for lack
of subject matter jurisdiction.
In this opinion the other judges concurred.
1
In addition to the city of Norwalk, the plaintiff, Fairfield Merrittview
Limited Partnership, summoned the city’s board of assessment appeals and
the city’s tax assessor, Michael J. Stewart, to appear before the Superior
Court. Throughout the proceedings, the parties and the court have referred
to the city of Norwalk as the defendant. For convenience, we therefore
refer to the city of Norwalk as the defendant in this opinion.
2
The initial appeal was filed in the Superior Court by Fairfield Merrittview
Limited Partnership, on July 1, 2009, with a return date of July 21, 2009. On
August 7, 2009, Fairfield Merrittview Limited Partnership filed a motion for
permission to amend its appeal and application to add Fairfield Merrittview
SPE, LLC, as an additional party plaintiff. A copy of the proposed amended
appeal and application was annexed to the motion. The defendant did not
file an objection to the motion, and the court, Hon. A. William Mottolese,
judge trial referee, granted the motion on February 16, 2010.
3
Because we conclude that the plaintiffs lacked standing to appeal the
tax valuation to the Superior Court, we do not address the defendant’s
second claim pertaining to the court’s calculation of the fair market value
of the subject property.
4
General Statutes § 12-117a provides in relevant part: ‘‘Any person . . .
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, with respect to the assessment list for the assessment
year commencing October 1, 1989, October 1, 1990, October 1, 1991, October
1, 1992, October 1, 1993, October 1, 1994, or October 1, 1995, and with
respect to the assessment list for assessment years thereafter, 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. . . .’’
5
‘‘[Limited liability companies] are hybrid entities that combine desirable
characteristics of corporations, limited partnerships, and general partner-
ships.’’ (Internal quotation marks omitted.) Weber v. U.S. Sterling Securities,
Inc., 282 Conn. 722, 729, 924 A.2d 816 (2007).
6
That statute was repealed effective January 1, 2014. Mergers are now
authorized by General Statutes § 34-611.
7
The plaintiffs did not allege that the limited partnership and the limited
liability company were the same legal entity. To the contrary, the motion
to amend the appeal stated that the limited liability company needed to be
added as an additional plaintiff. The amended appeal alleged that both
entities owned the subject property. Further, at the time of trial, the contin-
ued existence of the limited partnership was evidenced by its financial
statement for the year ending December 31, 2008, which was admitted as
an exhibit.
We also note that the property was conveyed by the limited partnership
to the limited liability company by deed. If, as now argued by the plaintiffs,
the limited partnership was converted into a limited liability company and
remained a single entity, there would have been no need for a transfer by
deed. ‘‘The term ‘conveyance’ is defined in Black’s Law Dictionary as the
‘transfer of title to land from one person, or class of persons, to another by
deed.’ . . . The term ‘deed’ is defined as ‘[a] written instrument, signed,
and delivered, by which one person conveys land . . . to another.’ . . . It
is clear from these definitions that there is no conveyance, and therefore
no need for a deed, unless there are two separate and distinct entities
involved in the property transfer.’’ (Citations omitted; emphasis in original.)
Cavanaugh v. Newtown Bridle Lands Assn., Inc., 261 Conn. 464, 471, 803
A.2d 305 (2002).