WILSON v. KELLEY, 224 Conn. 110 (1992)

617 A.2d 433

(14539)Supreme Court of Connecticut

PETERS, C.J., CALLAHAN, BORDEN, BERDON and NORCOTT, Js.

The plaintiff taxpayers brought a class action challenging the manner in which their taxable property in the town of Old Saybrook had been assessed by the defendant assessor. They sought, inter alia, a declaration that the 1989 grand list was invalid and an injunction enjoining the defendant tax collector from collecting taxes that were based on that list. The trial court rendered judgment in favor of the plaintiffs, and the defendants appealed. Held that the trial court improperly rejected the defendants’ assertion that the plaintiffs’ action was barred

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by the one year limitation period of the statute (12-119) applicable to actions claiming that property has been wrongfully assessed; an action for a declaratory judgment is not viable unless it rests on an underlying cause of action cognizable in a form other than an action for a declaratory judgment, and the plaintiffs’ action here was predicated on the substantive rights recognized in 12-119 and was, therefore, governed by the limitation period of that statute.

Argued October 1, 1992

Decision released December 8, 1992

Action for, inter alia, a declaratory judgment to determine the validity of the 1989 assessment of real property in the town of Old Saybrook, and for other relief, brought to the Superior Court in the judicial district of Middlesex and tried to the court, Higgins, J.; judgment for the plaintiffs declaring the assessments void; thereafter, the court rendered a supplemental judgment for the plaintiffs granting certain other relief and denied the defendants’ motion to open the judgment, and the defendants appealed. Reversed; judgment directed.

Jeremiah Donovan, with whom was Terry Sablone Donovan, for the appellants (defendants).

Thomas A. Cloutier, with whom was R. Scott Patterson, for the appellees (plaintiffs).

Deborah J. Blood and W. Campbell Hudson III filed a brief for the borough of Fenwick as amicus curiae.

BORDEN, J.

The dispositive issue in this appeal is whether the plaintiffs’ declaratory judgment action challenging the manner in which their taxable real property had been assessed was barred by the one-year statute of limitations provision of General Statutes 12-119.[1] The named plaintiffs brought a declaratory

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judgment class action on behalf of most of the taxpayers[2] named on the October 1, 1989 grand list of the town of Old Saybrook, against the defendants, Lucille B. Kelley and Olive P. Mulvihill, the town’s assessor and tax collector, respectively. The plaintiffs sought a declaration that the grand list was invalid and an injunction enjoining the defendants from collecting taxes based on that list. The trial court held that the assessor’s failure personally to view and evaluate each real estate parcel listed on the grand list violated General Statutes (Rev. to 1987) 12-62,[3] and thereby rendered

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the 1989 revaluations invalid. The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book 4023 and General Statutes 51-199(c). We now reverse the judgment of the trial court.

The relevant facts are as follows. On March 23, 1991, the plaintiffs, acting on behalf of most of the real property owners in the town of Old Saybrook, filed a class action against the defendants seeking a declaratory judgment that the town’s 1989 grand list was invalid as violative of 12-62. The plaintiffs’ complaint also sought damages, attorney’s fees, a permanent injunction restraining the tax collector from collecting any further real estate taxes based on the 1989 revaluation, and other equitable relief, including a refund of the taxes collected pursuant to the 1989 grand list.

The complaint alleged that the assessor had violated 12-62 by failing to view personally each and every parcel of real estate listed on the grand list, and by failing to exercise her own independent judgment in setting the assessment values on that list. The defendants admitted that the assessor had not personally viewed every property on the grand list, but asserted that she had properly relied upon the delegation of that duty

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to S.L.F. Appraisal, Inc., a state-certified revaluation company that had been hired by the assessor to conduct the revaluation. The defendants denied the plaintiffs’ claim that the assessor had failed to exercise her independent judgment in reaching the revaluation figures. The defendants also claimed that the declaratory judgment class action was barred by the statute of limitations or the equitable doctrine of laches.

The trial court held that the 1989 revaluation violated 12-62 and was therefore void because of the assessor’s reliance on the revaluation company to view each parcel of real estate, and because the assessor had failed to exercise her independent judgment in valuing each parcel. In a supplemental judgment, the trial court: (1) enjoined the tax collector from collecting any taxes based on the 1989 grand list; (2) ordered the assessor to revalue all the parcels in the town and to issue a new grand list by October, 1993; (3) ordered the assessor to base future taxes on the 1988 grand list until the issuance of a new list; (4) ordered the tax collector to credit the plaintiffs’ accounts for any overpayments based on the 1989 grand list; and (5) ordered the defendants to pay $10,000 in attorney’s fees. The trial court also rejected the defendants’ statute of limitations and laches defenses.

The defendants claim that the trial court improperly: (1) interpreted 12-62 to require town assessors to view personally each parcel of real property in the municipality during a decennial revaluation; (2) concluded that the assessor had not exercised her independent judgment regarding the value of each such parcel; (3) excluded evidence concerning the manner in which other towns conduct revaluations, and the role of the state office of policy and management in regulating revaluation companies and supervising decennial revaluations; (4) held that the plaintiffs’ action was not barred by the one year statute of limitations provision

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in 12-119;[4] (5) granted the plaintiffs’ request for certain equitable relief; and (6) awarded attorney’s fees. Because we hold that the plaintiffs’ action was barred by the statute of limitations provision of 12-119, we need not address the defendants’ other claims.

The purpose of a declaratory judgment action, as authorized by General Statutes 52-29[5] and Practice Book 390,[6] is to “secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties.” (Emphasis added.) Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 613, 508 A.2d 743 (1986). General Statutes 52-29(a) requires that a declaratory judgment “declare rights and other legal relations.” (Emphasis added.) Similarly, Practice Book 390 requires that the plaintiff be in danger of a loss or uncertainty “as to his rights or other jural relations.” and that there be a bona fide “issue in dispute or substantial uncertainty of legal relations.” (Emphasis added.) Thus, “[d]eclaratory relief is a mere procedural device by which various types of substantive

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claims may be vindicated.” Luckenbach Steamship Co. v. United States, 312 F.2d 545, 548 (2d Cir. 1963).

Implicit in these principles is the notion that a declaratory judgment action must rest on some cause of action that would be cognizable in a nondeclaratory suit. See Hodgdon v. Campbell, 411 A.2d 667, 669 (Me. 1980) (declaratory judgment statutes do “not create a new cause of action; [their] purpose is `to provide a more adequate and flexible remedy in cases where jurisdiction already exists'”). To hold otherwise would convert our declaratory judgment statute and rules into a convenient route for procuring an advisory opinion on moot or abstract questions; see Anderson v. Southwest Savings Loan Assn., 117 Ariz. 246, 571 P.2d 1042
(1977); and would mean that the declaratory judgment statute and rules created substantive rights that did not otherwise exist. We decline so to hold.

Consequently, in analyzing whether a declaratory judgment action is barred by a particular statutory period of limitations, a court must examine the underlying claim or right on which the declaratory action is based. Romer v. Leary, 425 F.2d 186, 188 (2d Cir. 1970); Swan v. Board of Higher Education, 319 F.2d 56, 59 (2d Cir. 1963); Luckenbach Steamship Co. v. United States, supra, 548-59; cf. Gannon v. Sanders, 157 Conn. 1, 7, 244 A.2d 397 (1968) (in determining whether plaintiff has standing in a declaratory judgment action, court must look at underlying claim on which action is based). It necessarily follows that if a statute of limitations would have barred a claim asserted in an action for relief other than a declaratory judgment, then the same limitation period will bar the same claim asserted in a declaratory judgment action.

We must, therefore, inquire into the source of the underlying right or claim on which the plaintiffs’

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declaratory judgment action is predicated. We first note that the legislature has established two primary methods by which taxpayers may challenge a town’s assessment or revaluation of their real property. First, any taxpayer claiming to be aggrieved by an action of an assessor may appeal, pursuant to General Statutes 12-111,[7]
to the town’s board of tax review. The taxpayer may then appeal, pursuant to General Statutes 12-118,[8]

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an adverse decision of the town’s board of tax review to the Superior Court. The second method of challenging an assessment or revaluation is by way of 12-119. See footnote 1, supra.

In Second Stone Ridge Cooperative Corporation v. Bridgeport, 220 Conn. 335, 597 A.2d 326 (1991), we summarized this two-part statutory scheme for challenging assessments and revaluations. Sections 12-111 and 12-118 provide “a method by which an owner of property may directly call in question the valuation placed by assessors upon his property by an appeal to the board of relief, and from it to the courts. . . . These statutes limit to a short period the time within which the property owner can seek relief under them, and the purpose of this is undoubtedly to prevent delays in the ultimate determination of the amounts a municipality can collect as taxes.” Id., 339, citing Cohn v. Hartford, 130 Conn. 699, 702, 37 A.2d 237 (1944).

“On the other hand, 12-119 allows a taxpayer one year to bring a claim that the tax was imposed by a town that had no authority to tax the subject property, or that the assessment was `manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the real] property . . . .’ Our case law makes clear that a claim that an assessment is `excessive’ is not enough to support an action under this statute. Instead, 12-119 requires an allegation that something more than mere valuation is at issue. It is this element that distinguishes 12-119 from its more frequently invoked companion, 12-118. In Connecticut Light
Power Co. v. Oxford, 101 Conn. 383, 392, 126 A. 1
(1924), we addressed the predecessor statute of 12-119 and concluded that there were two possible grounds for recovery under the statute: `the absolute nontaxability of the property in the municipality where

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situated, and a manifest and flagrant disregard of statutory provisions.’ Claims under 12-119 must fall into one of these two categories.

“`The first category in the statute embraces situations where a tax has been laid on property not taxable in the municipality where it is situated . . . .’ E. Ingraham Co. v. Bristol, 146 Conn. 403, 408, 151 A.2d 700, cert. denied, 361 U.S. 929, 80 S.Ct. 367, 4 L.Ed.2d 352 (1959). . . .

“The second category consists of claims that assessments are `(a) manifestly excessive and (b) . . . could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of the property.’ . . . E. Ingraham Co. v. Bristol, [supra, 409]. Cases in this category must contain allegations beyond the mere claim that the assessor overvalued the property. `[The] plaintiff . . . must satisfy the trier that [a] far more exacting test’ has been met: either `there was misfeasance or nonfeasance by the taxing authorities, or the assessment was arbitrary or so excessive or discriminatory as in itself to show a disregard of duty on their part.’ Mead v. Greenwich, 131 Conn. 273, 275, 38 A.2d 795 (1944). Only if the plaintiff is able to meet this exacting test by establishing that the action of the assessors would result in illegality can the plaintiff prevail in an action under 12-119. The focus of 12-119 is whether the assessment is `illegal.’ Cohn v. Hartford, [supra, 703]; see E. Ingraham Co. v. Bristol, supra, 408 (municipality disregarded the statutes when it taxed real property at 50 percent of its value, personal property at 90 percent and motor vehicles at 100 percent at a time when municipalities were prohibited from assessing property as a percentage of its value).” Second Stone Ridge Cooperative Corporation v. Bridgeport, supra, 339-41.

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With this background in mind, we must read the plaintiffs’ complaint requesting declaratory relief as predicated on the substantive rights recognized in 12-119.[9] Paragraph six of the complaint alleges that “[t]he adoption of the Grand List of real property prepared by the Assessor for the year 1989 was illegal, invalid, and contrary to [the assessor’s] statutory duties . . . .” This claim, therefore, invokes the second part of 12-119‘s requirements, that is, that the assessment “could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property . . . .” The plaintiffs do not dispute this reading of paragraph six of their complaint.

The plaintiffs contend, however, that their declaratory judgment action was nonetheless not predicated on 12-119 because the complaint does not allege that the assessment values on the 1989 grand list are “manifestly excessive.” We disagree.

First, the plaintiffs’ declaratory judgment action must be viewed as, in substance, a claim for relief under 12-119 because it would not have been viable unless it rested on an underlying cause of action cognizable in nondeclaratory judgment form, and because it cannot be viewed as an appeal from the board of tax review under 12-118. Thus, the claim under 12-119 that a tax be “manifestly excessive” is implied in the plaintiffs’ declaratory judgment action in this case.

Second, if we were to read the plaintiffs’ complaint as making no claim as to the excessiveness of the

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revaluation, but instead contending solely that the assessor’s methods violated the statutory commands of 12-62, the plaintiffs would have no standing to maintain the declaratory judgment action. “An action for declaratory judgment is a special proceeding. . . [that] requires the existence of an actual bona fide and substantial question in dispute which requires settlement between the parties.” Kiszkiel v. Gwiazda, 174 Conn. 176, 180-81, 383 A.2d 1348 (1978). “[T]he declaratory judgment procedure may not be utilized merely to secure advice on the law . . . or to secure the construction of a statute if the effect of that construction will not affect a plaintiff’s personal rights. . . .” Horton v. Meskill, 172 Conn. 615, 627, 376 A.2d 359 (1977); see also Gannon v. Sanders, supra, 9 (“`[n]o taxpayer is entitled to seek by declaratory judgment the construction of a statute if the effect of that construction will not affect his personal rights'”).

In the absence of some claim that the imposed revaluation of the plaintiffs’ properties on the 1989 list was excessive, the plaintiffs’ personal rights would not have been implicated. An improper method of valuation, standing alone, would not have caused the necessary injury to maintain a declaratory judgment action. Our doctrines of standing and aggrievement obligate us to avoid adjudicating rights in a vacuum.

In light of these considerations, we must read the plaintiffs’ complaint as including both (1) the explicit claim that the revaluation was invalid and contrary to the assessor’s statutory duties, and (2) an implicit claim that the revaluations were manifestly excessive. Accordingly, because the plaintiffs’ claim must be construed to be predicated on 12-119, we apply the statute’s one year limitation period to the plaintiffs’ declaratory judgment action, and the action is

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therefore barred.[10] A contrary result could be reached only by ignoring the legislative preference in 12-111, 12-118 and 12-119 for the prompt resolution of challenges to assessments, and the need for the stability of our towns’ tax rolls. “Public policy requires . . . that this court not permit to be the subject of perpetual litigation, at any time, to suit the convenience of the taxpayer.” National CSS, Inc. v. Stamford, 195 Conn. 587, 597-98, 489 A.2d 1034 (1985).

Our decision today is in accord with this court’s treatment of a similar claim in Norwich v. Lebanon, 200 Conn. 697, 708-13, 513 A.2d 77 (1986). In Norwich, the plaintiff brought an action of indebitatus assumpsit to recover money collected under an allegedly illegal assessment approximately six years after the date of the assessment. We held that the plaintiff could not circumvent the time limitations of 12-118 and 12-119
by resorting to the equitable writ of assumpsit because, if “a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure.” Id., 708. Although resting on the doctrine of exhaustion of remedies, our decision in Norwich recognized that the legislative purpose behind the limitation periods for challenging tax assessments “would be thwarted if an action for refund of taxes paid upon a disputed assessment could be brought far beyond the

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time limits for contesting an assessment established by these statutes.” Id., 710. Although the present case was brought as a declaratory judgment action rather than as an action in assumpsit, the same respect for the legislatively recognized need for the prompt resolution of challenges to tax assessments guides us today.

The remaining issue in this case is the form of our rescript. As a general rule, if a statute creates a cause of action that did not exist at common law, the period established for bringing the action is a limitation of the liability itself, and not of the remedy alone. American Masons’ Supply Co. v. F. W. Brown Co., 174 Conn. 219, 224, 384 A.2d 378 (1978). In such a case, if a plaintiff has failed to comply with the limitation period, a court should dismiss the action for lack of subject matter jurisdiction. Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023 (1985); see also Practice Book 145. If, however, an action is barred by a statute of limitations period that does not inhere in the action itself, the remedy is not a dismissal but a judgment for the party asserting the bar. See, e.g., Beckenstein v. Potter
Carrier, Inc., 191 Conn. 150, 464 A.2d 18 (1983).

Section 12-119 has been held to be “merely declaratory of existing legal and equitable rights.” Norwich v. Lebanon, supra, 710; Connecticut Light Power Co. v. Oxford, supra, 391-92. We, therefore, read the limitation period contained in 12-119 not as a jurisdictional prerequisite, but only as an ordinary statute of limitations. Accordingly, the plaintiffs’ failure to bring the declaratory judgment action within the limitation period did not deprive the trial court of jurisdiction but merely barred the plaintiffs’ declaratory judgment action as untimely.

The judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other justices concurred.

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