60 NORTH MAIN HOLDING, LLC V. CITY OF WATERBURY.

2007 Ct. Sup. 17708
No. CV 02-0171441 SConnecticut Superior Court Judicial District of Waterbury at Waterbury
October 19, 2007

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION TO COMPEL #113
THOMAS F. UPSON, JUDGE.

FACTS
This matter arises from an administrative appeal by the plaintiffs, 60 North Main Street Holding, LLC (60 North Main) and Downtown Development, LLC (Downtown), regarding the excessive valuation of their property at 62 North Main Street by the defendant, the City of Waterbury. The defendant originally valued the property at $973,700, but 60 North Main appealed the decision to the board of assessment appeals claiming the valuation was excessive. The board of assessment appeals refused to change the valuation, and 60 North Main filed an administrative appeal with the Superior Court May 15, 2002. When Downtown bought the property, it joined the action on December 3, 2003, and amended the appeal May 18, 2004. The plaintiffs and the defendant came to an agreement and the court entered judgment in accordance with their stipulation on June 19, 2006. In the stipulation, the parties agreed that the tax assessment would be lowered to $726,320 and that the defendant would promptly refund the overpayments to the plaintiffs.[1] The defendant refused to pay the refund until the plaintiffs filled out the proper paperwork required by General Statutes § 12-129. On May 15, 2007, the plaintiffs filed a motion to compel the defendants to pay the refund and requested interest on the unpaid amount, plus costs and attorneys fees. The defendant filed an objection to the motion to compel on June 22, 2007, claiming that it could not pay the refund until the plaintiffs fulfilled the requirements of § 12-129.

DISCUSSION
“A stipulated judgment is not a judicial determination of any litigated right . . . It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction . . . [It is] the result of a contract and its embodiment in a form which places it and the matters covered by it beyond further controversy . . . The essence of the judgment is that the CT Page 17709 parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement.” (Internal quotation marks omitted.) Rocque v. Northeast Utilities Service Co., 254 Conn. 78, 83, 755 A.2d 196 (2000). “In construing a contract, the controlling factor is normally the intent expressed in the contract, not the intent which the parties may have had or which the court believes they ought to have had.” (Internal quotation marks omitted.) Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn.App. 1, 18, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514
(2004). “Effect must be given to that which is clearly implied as well as to that which is expressed.” (Internal quotation marks omitted.)Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 807, 695 A.2d 1010
(1997).

It is clear from the language of the stipulation that the defendant was required to promptly refund the tax overpayments to the plaintiffs. This requirement implies that the defendant must follow its statutorily mandated procedures for refunding taxes. “Municipalities have no powers of taxation other than those specifically given by statute, and strict compliance with the statutory provisions is a condition precedent to the imposition of a valid tax.” Sheridan v. Killingly, 278 Conn. 252, 264, 897 A.2d 90 (2006). Although the previous statement refers to the limits of the power of a tax assessor under General Statutes § 12-62, it does not imply that municipalities need only strictly comply with that statute alone. Id., 263-64 (holding that “[General Statutes § 12-64] provides no authority for towns to assess a tax against a lessee on the value of the leasehold in excess of the actual rent”); see als Waterbury Hotel Equity, LLC v. Waterbury, 85 Conn.App. 480, 491-92, 858 A.2d 259, cert. denied, 272 Conn. 901, 863 A.2d 696 (2004) (holding that tax assessor’s duties under § 12-62 were mandatory and not discretionary and that he must re-evaluate the value of property every ten years, regardless of an agreed upon valuation in a stipulated judgment).

The power of a tax collector to refund an overpayment of taxes is governed by § 12-129, which provides in relevant part: “Any person, firm or corporation who pays any property tax in excess of the principal of such tax as entered in the rate book of the tax collector and covered by his warrant therein, or in excess of the legal interest, penalty or fees pertaining to such tax . . . or 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.” The plain language of the statute CT Page 17710 indicates that every party who is entitled to a refund is required to follow the application process. It does not make an exception for parties entitled to a refund under a stipulated judgment. This means that the plaintiffs need to complete the proper applications and file them with the city’s tax assessor before the defendant can promptly refund their overpayment. The city has not violated the stipulated judgment by requesting that the plaintiffs comply with the statutory requirements that the city is mandated to follow in order to refund their overpayment.

For the foregoing reasons, the court denies the plaintiff’s motion to compel.

[1] The stipulation provided in relevant part: “The parties to this action hereby further stipulate and agree that the resulting overpayments of taxes levied on the subject property(ies) shall be refunded by the defendant to the plaintiff promptly.”

CT Page 17711