SG Pequot 200, LLC v. Fairfield

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SG PEQUOT 200, LLC v. TOWN OF FAIRFIELD
(AC 45863)
Bright, C. J., and Alvord and Moll, Js.

Syllabus

Pursuant to statute (§ 12-111 (a) (1)), ‘‘[a]ny person . . . claiming to be
aggrieved by the doings of the assessors of [a] town may appeal there-
from to the board of assessment appeals. Such appeal shall be filed in
writing or by electronic mail in a manner prescribed by such board on
or before February twentieth. . . .’’
Pursuant further to statute (§ 12-112), ‘‘[n]o appeal from the doings of the
assessors in any town shall be heard or entertained by the board of
assessment appeals . . . unless written appeal is made on or before
February twentieth in accordance with the provisions of section 12-111.’’
The plaintiff limited liability company appealed to this court from the trial
court’s judgment dismissing its municipal tax appeal brought pursuant
to statute (§ 12-117a). In October, 2021, the defendant town assessed
the plaintiff’s property and set forth a valuation. The plaintiff mailed its
petition to appeal the valuation to the town’s board of assessment
appeals on Friday, February 18, 2022, via commercial standard overnight
shipping. The town’s municipal offices were closed Saturday, February
19, 2022, through Monday, February 21, 2022, Washington’s Birthday, a
legal holiday. On February 22, 2022, the board received the plaintiff’s
petition and, on February 23, 2022, the board notified the plaintiff that
its petition would not be heard because it was received after February
20, the statutory deadline set forth in §§ 12-111 (a) (1) and 12-112. The
plaintiff then appealed to the trial court pursuant to § 12-117a, alleging,
inter alia, that it had been aggrieved by the board under § 12-117a and
that its appeal to the board had been timely. The town filed an answer
and asserted several special defenses, including that the plaintiff’s claim
was barred under § 12-117a because the plaintiff did not file its petition
before the statutory deadline. The town subsequently filed a motion for
partial summary judgment, arguing, inter alia, that there was no genuine
issue of material fact in dispute, it was entitled to judgment as a matter
of law, and the court lacked subject matter jurisdiction because the
plaintiff’s appeal to the board was untimely. The trial court granted the
town’s motion for partial summary judgment and dismissed the relevant
counts of the plaintiff’s complaint, finding, inter alia, that the plaintiff’s
appeal was untimely because it was received two days after the statutory
deadline set forth in §§ 12-111 and 12-112. On appeal, held that the trial
court improperly determined that it lacked subject matter jurisdiction
over the plaintiff’s municipal tax appeal on the basis that the plaintiff’s
petition to the board was untimely: in accordance with the Supreme
Court’s decision in Brennan v. Fairfield (255 Conn. 693), which analyzed
the statutory deadline for a claim under the municipal defective highway
statute (§ 13a-149), this court similarly determined that the legislature
did not intend for a taxpayer to have a shorter time period to file its
petition to a town’s board simply because the statutory deadline fell on
a day that the municipal offices were closed; moreover, this court found
persuasive the principle set forth in Brennan and in Lamberti v. Stam-
ford (131 Conn. 396) that a plaintiff cannot effectuate notice on a board
when a town’s municipal offices are closed on weekends or a legal
holiday because the designated town official is not available to receive
the notice, the Supreme Court having determined that the legislature
did not intend the alternative, that is, that either the town clerk’s office
would have to be open on those days in order to receive the notice or
the designated official would have to be otherwise available to receive
the notice, and this court similarly was not persuaded that the legislature
intended to have municipal offices open on weekends or legal holidays
in order for a taxpayer to satisfy the deadline set forth in §§ 12-111 (a)
(1) and 12-112; accordingly, because the statutory deadline of February
20, 2022, was a Sunday and the following day was a legal holiday, this
court concluded that the plaintiff’s appeal, received by the board on
February 22, 2022, was timely made.
Argued November 8, 2023—officially released January 16, 2024

Procedural History

Appeal from the decision of the defendant’s Board
of Assessment Appeals declining to hear the plaintiff’s
petition to appeal the valuation of its property, brought
to the Superior Court in the judicial district of Fairfield
and transferred to the judicial district of New Britain,
Tax Session, where the court, Cordani, J., granted the
defendant’s motion for partial summary judgment and
rendered judgment thereon; thereafter, the plaintiff
withdrew the remaining count of its complaint and
appealed to this court. Reversed in part; judgment
directed.
Gary J. Greene, with whom, on the brief, were
Michael D. Reiner and Sean V. Patel, for the appellant
(plaintiff).
Owen T. Weaver, with whom was Barbara M. Schel-
lenberg, for the appellee (defendant).
Opinion

ALVORD, J. The plaintiff, SG Pequot 200, LLC,
appeals from the judgment of dismissal rendered in
favor of the defendant, the town of Fairfield (town), by
the trial court in this municipal tax appeal brought
pursuant to General Statutes § 12-117a.1 On appeal, the
plaintiff claims that the court improperly determined
that the court lacked subject matter jurisdiction over
the plaintiff’s municipal tax appeal on the basis that
the plaintiff’s petition to the town’s board of assessment
appeals (board) was untimely under General Statutes
§§ 12-111 (a) (1) and 12-112. We agree and, accordingly,
reverse in part the judgment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to this appeal. On October 1, 2021,
the town assessed the plaintiff’s property located at 200
Pequot Avenue, Fairfield, and valued it at $2,750,790.
The plaintiff mailed its petition to appeal the valuation
to the board on Friday, February 18, 2022, via Federal
Express (FedEx) standard overnight shipping. The
town’s municipal offices were closed Saturday, Febru-
ary 19, 2022, through Monday, February 21, 2022, Wash-
ington’s Birthday.2 On February 22, 2022, the board
received the plaintiff’s petition, and on February 23,
2022, the board notified the plaintiff that its petition
would not be heard because it was received after the
statutory deadline of February 20.
The plaintiff then appealed to the Superior Court
pursuant to § 12-117a. In count one of its three count
complaint; see footnote 4 of this opinion; the plaintiff
alleged that it had been aggrieved by the board under
§ 12-117a and that its appeal to the board was timely.
The town filed an answer and asserted several special
defenses, including that the plaintiff’s claim was barred
under § 12-117a because the plaintiff did not file its
petition before the statutory deadline.
On June 28, 2022, the town filed a motion for partial
summary judgment, accompanied by a supporting mem-
orandum of law, as to counts one and three of the
plaintiff’s complaint. See footnote 4 of this opinion. As
to count one, the town argued, inter alia, that there was
no genuine issue of material fact in dispute, it was
entitled to judgment as a matter of law, and that the
court lacked subject matter jurisdiction because the
plaintiff’s appeal to the board was untimely. In support
of its motion, the town submitted the affidavit of its
tax assessor, Ross Murray, who averred that he receives
and processes taxpayer petitions for the board. Murray
attested that he received the plaintiff’s petition on Feb-
ruary 22, 2022, and he notified the plaintiff on February
23, 2022, that the board would not hear its petition
because the petition was received after the statutory
deadline.
On July 15, 2022, the plaintiff filed an opposition
to the town’s motion for partial summary judgment,
accompanied by a supporting memorandum of law,
wherein it argued, inter alia, that it timely had appealed
to the board. In support of its opposition, the plaintiff
submitted a copy of the petition’s FedEx tracking infor-
mation as an exhibit. According to the tracking informa-
tion, the plaintiff mailed the petition from Buffalo, New
York, on February 18, 2022, via FedEx standard over-
night delivery and the board received the petition on
February 22, 2022.
The town filed a reply memorandum, wherein it
argued, inter alia, that the plaintiff’s ‘‘late filing was due
solely to [its] decision to mail its petition on February
18, 2022.’’ In support of its reply memorandum, the
town submitted, inter alia, a supplemental affidavit of
Murray. Murray averred that the Office of Policy and
Management informed towns that taxpayers were
required to file their petitions on or before February
18, 2022, because February 20, 2022, fell on a Sunday,
and Monday, February 21, 2022, was Washington’s
Birthday.3
On September 14, 2022, the court, Cordani, J., issued
a memorandum of decision, in which it dismissed
counts one and three of the plaintiff’s complaint. Rele-
vant to this appeal, the court determined that ‘‘[t]he
timing deadlines in §§ 12-111, 12-112 and 12-117a are
jurisdictional. The court acquires subject matter juris-
diction over a § 12-117a claim pursuant to the applicable
statutes themselves and only upon compliance with
the terms of the statutes. A failure to comply with the
foregoing enabling statutes undermines the subject mat-
ter jurisdiction of the court for such claims. As noted,
these statutes provide a two step process. The taxpayer
is first required to file an appeal with the [board]. Then,
only a taxpayer who is ‘aggrieved by the action’ of the
[board] may file a claim pursuant to § 12-117a in court.
Further, as noted, § 12-112 expressly prohibits the
[board] from hearing or entertaining an untimely
appeal. In this matter, the [board] determined that the
plaintiff’s appeal was untimely because it was received
two days after the deadline. As a result, the [board], in
accordance with § 12-112, refused to hear or entertain
the appeal.’’ Accordingly, the court dismissed count one
of the plaintiff’s complaint.4 This appeal followed.
Before turning to the plaintiff’s claim on appeal, we
set forth the relevant standard of review. ‘‘A determina-
tion regarding a trial court’s subject matter jurisdiction
is a question of law. When . . . the trial court draws
conclusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record.’’ (Internal quotation marks omitted.) Manifold
v. Ragaglia, 94 Conn. App. 103, 114, 891 A.2d 106 (2006).
‘‘[A] claim that the court lacks jurisdiction over the
subject matter cannot be waived and must be addressed
whenever it is brought to the court’s attention. . . .
Subject matter jurisdiction involves the authority of the
court to adjudicate the type of controversy presented
by the action before it. . . . [A] court lacks discretion
to consider the merits of a case over which it is without
jurisdiction . . . . Accordingly, [t]he 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.’’ (Citations omitted; internal quotation marks
omitted.) Id., 116–17.
‘‘[A] challenge to the court’s subject matter jurisdic-
tion is ordinarily raised by way of a motion to dismiss.
. . . Our Supreme Court, however, has held that a
motion for summary judgment is also an appropriate
means of challenging the court’s subject matter jurisdic-
tion, as the question of subject matter jurisdiction can
be raised at any time. . . . Furthermore, once the ques-
tion of the court’s subject matter jurisdiction is raised,
it must be resolved before the court addresses the mer-
its of the plaintiff’s claims.’’ (Citations omitted.) Sosa
v. Robinson, 200 Conn. App. 264, 275–76, 239 A.3d
1228 (2020).
‘‘Practice Book § 17-49 provides in relevant part 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. Furthermore, [i]n deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The party seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles
of substantive law, entitle[s] him to a judgment as a
matter of law . . . and the party opposing such a
motion must provide an evidentiary foundation to dem-
onstrate the existence of a genuine issue of material
fact. . . .
‘‘Whereas a motion to dismiss is decided only on the
allegations in the complaint and the facts implied from
those allegations, summary judgment is decided by
looking at all of the pleadings, affidavits and documen-
tary evidence presented to the court in support of the
motion.’’ (Citation omitted; emphasis in original; inter-
nal quotation marks omitted.) Manifold v. Ragaglia,
supra, 94 Conn. App 120.
We next set forth the applicable legal principles
regarding a municipal tax appeal. ‘‘When a taxpayer is
aggrieved by the assessment of his property, there are
statutory procedures in place for the taxpayer to chal-
lenge the assessment. [T]he legislature has established
two primary methods by which taxpayers may chal-
lenge a town’s assessment or revaluation of their prop-
erty. First, any taxpayer claiming to be aggrieved by an
action of an assessor may appeal, pursuant to . . .
§ 12-111, to the town’s board . . . . The taxpayer may
then appeal, pursuant to . . . § [12-117a], an adverse
decision of the town’s board . . . to the Superior
Court. The second method of challenging an assessment
or revaluation is by way of [General Statutes] § 12-119.’’
(Internal quotation marks omitted.) Tirado v. Torring-
ton, 179 Conn. App. 95, 101–102, 179 A.3d 258 (2018).
Section 12-111 (a) (1) provides in relevant part: ‘‘Any
person . . . claiming to be aggrieved by the doings of
the assessors of such town may appeal therefrom to
the board of assessment appeals. Such appeal shall
be filed in writing or by electronic mail in a manner
prescribed by such board on or before February twenti-
eth. . . .’’ Section 12-112 provides in relevant part: ‘‘No
appeal from the doings of the assessors in any town
shall be heard or entertained by the board of assessment
appeals . . . unless written appeal is made on or
before February twentieth in accordance with the provi-
sions of section 12-111.’’
In the present case, the plaintiff claims that the court
had subject matter jurisdiction over its appeal because
its appeal to the board was timely made on February
22, 2022, given that the February 20 statutory deadline
fell on a Sunday and February 21, 2022, was Washing-
ton’s Birthday. The town maintains that the court cor-
rectly determined that the plaintiff’s petition was
untimely because the board received it after the statu-
tory deadline. We agree with the plaintiff.
In support of its argument that it timely appealed,
the plaintiff relies on Brennan v. Fairfield, 255 Conn.
693, 768 A.2d 433 (2001). Therein, our Supreme Court
concluded that the ninety day filing period under the
municipal defective highway statute, General Statutes
§ 13a-149,5 may be extended to ninety-two days when
the ninetieth and ninety-first days fall on a Saturday
and a Sunday. Id., 694–95. The court applied the long-
standing principle that, ‘‘[a]t common law, when the
terminal day for filing legal papers fell on a holiday or
Sunday, the plaintiff was able to make performance on
the following day’’; id., 698; and determined that there
is ‘‘no meaningful distinction between, on one hand,
municipal offices that routinely are closed on week-
ends, and, on the other hand, such offices that are
required to be closed on legal holidays . . . . Filing
notice under § 13a-149 . . . does not involve just one
party. The designated town official must be available
to receive the notice. When municipal offices are closed
on weekends, public officers are freed from the obliga-
tion of keeping open their offices or attending to their
duties, just as they are freed from these obligations on
official holidays. . . . To conclude otherwise would
mean that, if the terminal date for filing notice pursuant
to § 13a-149 fell on a Saturday or Sunday, then either
the town clerk’s office would have to be open on those
days in order to receive the notice, or the designated
official would have to be otherwise available to receive
the notice delivered on the ninetieth day. We do not
think that the legislature intended these consequences
in order for a claimant to satisfy the notice filing require-
ments of § 13a-149.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 700. The court also recognized
‘‘that permitting filings past certain deadlines is an
accepted practice in our courts,’’ cited several examples
of statutes that directly provide for extended deadlines,
and determined that, although § 13a-149 ‘‘does not
explicitly provide for an extension of time when the
terminal day falls on a Saturday or Sunday . . . its
notice provision should be read in light of the statute’s
overall purpose to provide claimants with the opportu-
nity to recover for injuries . . . .’’ Id., 700–701.
In reaching its determination in Brennan, the court
relied on Lamberti v. Stamford, 131 Conn. 396, 40 A.2d
190 (1944), wherein the court analyzed the notice
requirement of General Statutes (1930 Rev.) § 1420, the
predecessor to § 13a-149, the current municipal defec-
tive highway statute. Under General Statutes (1930
Rev.) § 1420, a person who sought to bring a cause of
action against a municipality alleging an injury resulting
from a defective road or bridge had ten days to notify
the municipality of the occurrence. See also id., 397. In
Lamberti, the plaintiff was injured on December 15,
meaning that the statutory deadline fell on December
25, Christmas, a legal holiday. Id., 397–98. The plaintiff
notified the municipality of the occurrence on Decem-
ber 26. Id., 397. The court concluded that, ‘‘if the last
day of the [statutory] period falls on a holiday, the giving
of notice on the next day is . . . sufficient compliance
with the statute.’’ Id., 401. After examining the interplay
between the municipal defective highway statute and
the statute designating legal holidays, the court deter-
mined that ‘‘[w]e do not have here a situation where
the giving of the notice requires action only by the
[party] injured or someone [on its] behalf. The giving
of that notice involves a duty to receive it on the part
of the proper municipal official. Certainly when the
legislature declares a day to be a holiday, it means at
least to free public officers from the obligation of keep-
ing open their offices or attending to their duties on
that day . . . . Practically, where the last day of the
period falls on a holiday, not to permit the notice to be
filed on the succeeding day would be to cut down the
time permitted for giving the notice . . . . We cannot
believe that the legislature had such an intention.’’ Id.,
399–400.
In the present case, the plaintiff relies on Brennan
and argues that, ‘‘[r]egardless of whether the statutory
deadline is a ‘bright line deadline’ or a deadline ‘mea-
sured by any particular triggering event or time period,’
the legislature intended to give the plaintiff the deadline
provided for in [§§ 12-111a and 12-112].’’ The town main-
tains that Brennan is inapplicable because that case
concerns a statute that prescribes a certain number of
days after a triggering event as a deadline, whereas
§§ 12-111 (a) (1) and 12-112 set forth a specific date.6
We agree with the plaintiff that the principles set
forth in Lamberti, and reaffirmed in Brennan, apply
in the present case, notwithstanding that those cases
involved statutory deadlines prescribed by a certain
number of days after a triggering event rather than a
specific date. In the present case, the plaintiff mailed
its petition on Friday, February 18, 2022, via FedEx
standard overnight delivery. As in Brennan and Lam-
berti, the town’s municipal buildings were closed on
the final day of the statutory deadline, here Sunday,
February 20, 2022, and also on Monday, February 21,
2022, for a legal holiday, Washington’s Birthday. Thus,
the board received the plaintiff’s petition the following
business day, Tuesday, February 22, 2022. The court in
Brennan determined that the legislature did not intend
‘‘for claimants to have fewer than the prescribed ninety
days available to them pursuant to § 13a-149 simply
because the terminal day coincides with a day when
the municipal office is closed.’’ Brennan v. Fairfield,
supra, 255 Conn. 701. Similarly, we do not believe that
the legislature intended for a taxpayer to have a shorter
time period to file its petition to a town’s board simply
because the statutory deadline falls on a day that the
municipal offices are closed.
We also find persuasive the principle set forth in
Lamberti and Brennan that a plaintiff cannot effectuate
notice on a board when a town’s municipal offices are
closed on weekends or a legal holiday because the
designated town official is not available to receive the
notice. See Lamberti v. Stamford, supra, 131 Conn.
400–401; Brennan v. Fairfield, supra, 255 Conn. 700.
The court in Brennan determined that, ‘‘if the terminal
date for filing notice pursuant to § 13a-149 fell on a
Saturday or Sunday, then either the town clerk’s office
would have to be open on those days in order to receive
the notice, or the designated official would have to be
otherwise available to receive the notice delivered on
the ninetieth day. We do not think that the legislature
intended these consequences in order for a claimant
to satisfy the notice filing requirements of § 13a-149.’’
Brennan v. Fairfield, supra, 700. Similarly, we are not
persuaded that the legislature intended to have munici-
pal offices open on weekends or legal holidays in order
for a taxpayer to satisfy the deadline set forth in §§ 12-
111 (a) (1) and 12-112.
Because the statutory deadline of February 20, 2022,
was a Sunday and the following day was a legal holiday,
we conclude that the plaintiff’s appeal, received by the
board on February 22, 2022, was timely made. Thus, the
court had subject matter jurisdiction over the plaintiff’s
appeal from the board’s decision declining to hear its
petition, and, as a result, the court improperly dismissed
count one of the plaintiff’s complaint.
The judgment is reversed only as to the dismissal of
count one of the plaintiff’s complaint and the case is
remanded to the trial court with direction to deny the
defendant’s motion for summary judgment as to count
one and to remand the case to the Board of Assessment
Appeals of the Town of Fairfield; the judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
General Statutes § 12-117a (a) (1) provides in relevant part: ‘‘Any person,
including any lessee of real property whose lease has been recorded as
provided in section 47-19 and who is bound under the terms of his lease to
pay real property taxes, 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. . . .’’
2
General Statutes § 1-4, titled ‘‘Days designated as legal holidays,’’ pro-
vides in relevant part: ‘‘In each year . . . the third Monday in February
(known as Washington’s Birthday) . . . shall . . . be a legal holiday
. . . .’’ Although the trial court refers to the holiday as ‘‘President’s Day,’’
we will use ‘‘Washington’s Birthday’’ as set forth in the statute.
3
The plaintiff, without seeking the court’s permission, then filed a reply
memorandum and accompanying affidavits in further support of its opposi-
tion to the town’s motion for partial summary judgment. In response, the
town filed a motion to strike the plaintiff’s reply memorandum and an
accompanying memorandum of law in support thereof, citing Practice Book
§ 11-10 (c) (‘‘[s]urreply memoranda cannot be filed without the permission
of the judicial authority’’). Subsequently, the plaintiff filed a request for
leave to file its surreply brief. Neither the town’s motion to strike nor the
plaintiff’s request for leave was adjudicated, and neither party raises any
contention on appeal with respect to these filings.
4
In count two of the plaintiff’s complaint, the plaintiff had alleged that
it had been aggrieved by the board under General Statutes § 12-119 and that
its appeal to the board was timely. Following the court’s dismissal of counts
one and three, the plaintiff withdrew count two.
In count three, the plaintiff had alleged that the town improperly assigned
an income and expense penalty to the subject property. Regarding count
three, the court determined that ‘‘[t]he [town] has also moved for summary
judgment on count three, which presents an unspecified claim challenging
the imposition of a late filing penalty in connection with the plaintiff’s 2021
income and expense statement. The [town] has represented that no such
penalty has been imposed. The plaintiff has not opposed the [town’s] motion
as to count three. Given the undisputed facts, it is apparent that count three
does not present an actual case and controversy, and as a result the court
lacks subject matter jurisdiction over count three. Accordingly, the court
must dismiss count three.’’ The plaintiff does not raise any claim on appeal
with respect to the court’s ruling dismissing count three of its complaint.
5
General Statutes § 13a-149 provides in relevant part that ‘‘[n]o action for
any such injury shall be maintained . . . unless written notice of such injury
. . . shall, within ninety days thereafter be given to a selectman or the clerk
of such town . . . .’’
6
The town further contends that the plaintiff’s argument is ‘‘[t]he exact
style argument’’ raised in Seramonte Associates, LLC v. Hamden, 345 Conn.
76, 282 A.3d 1253 (2022) (Seramonte). In that case, our Supreme Court
considered ‘‘whether General Statutes § 12-63c (a), which requires the own-
ers of certain rental property to submit income and expense information
to their municipal tax assessor not later than the first day of June, [was]
satisfied when that information [was] postmarked but not delivered by that
date.’’ (Internal quotation marks omitted.) Id., 78. The court determined
‘‘that the word ‘submit’ in § 12-63c (a) unambiguously requires that the
income and expense information be received by the assessor by June 1.’’
Id., 91. Seramonte is distinguishable from the present appeal for several
reasons. First, unlike the plaintiff in Seramonte, the plaintiff in the present
case sent its petition to the board prior to the statutory deadline and the
delay in the board’s receipt of the plaintiff’s petition was due to February
20, 2022, falling on a Sunday and February 21, 2022, being Washington’s
Birthday. Second, Seramonte does not involve a situation where the June
1 deadline fell on a weekend or legal holiday. Finally, the language of neither
§ 12-111 (a) (1) nor § 12-112 includes the word ‘‘submit’’ when describing
the process of a taxpayer appealing to their town’s board. Thus, we are
unpersuaded by the town’s argument that the statutory analysis in Seramonte
is instructive to our consideration of the present appeal.