228 Conn. 23 | Conn. | 1993
The principal issues in this tax appeal are: (1) whether the appeal by the plaintiff, Carol Manage
The following facts are undisputed. The plaintiff’s property, located at 25 West Elm Street in Greenwich, is a six-story brick apartment building containing fifty-three units of living space and garage space for thirteen vehicles. On October 1, 1979, in connection with a decennial revaluation mandated by General Statutes (Rev. to 1979) § 12-62,
In 1983, the plaintiff
In 1985, the plaintiff appealed the 1984 assessment of its property to the defendant pursuant to § 12-111. The defendant refused to grant relief. The plaintiff then filed a complaint in the Superior Court pursuant to § 12-118 challenging the defendant’s denial of relief. In 1986, the plaintiff-amended its complaint to include a challenge to the 1985 and 1986 assessments of its property, and to add a second count directly challenging the assessments of its property pursuant to § 12-119.
In an October 12, 1988 motion for summary judgment, the defendant claimed that the 1984 decision by Judge Devlin on the § 12-119 claim precluded the plaintiff’s § 12-118 appeal under principles of collateral
After trial, the court, Lewis, J., rendered judgment for the plaintiff on its § 12-118 appeal. In its November 13, 1992 memorandum of decision, the trial court also rejected the defendant's collateral estoppel defense because of “the vast difference between § [12-118] appeals and § [12-119] law suits.”
The defendant 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). The defendant claims that: (1) the plaintiff’s § 12-118 appeal should have been barred because Judge Devlin’s 1984 decision
I
Because the defendant’s collateral estoppel claim, if valid, would dispose of this appeal, we consider it first. The defendant claims that the trial court incorrectly determined that the plaintiff’s appeal under § 12-118 was not collaterally estopped by Judge Devlin’s earlier judgment under § 12-119. We disagree.
In Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 339-40, 597 A.2d 326 (1991), we distinguished appeals brought pursuant to §§ 12-111 and 12-118 from direct actions brought pursuant to § 12-119. 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 [tax review for] 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.’ 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
The defendant acknowledges the distinctions between the two statutes and concedes that Judge Devlin in the 1984 case dismissed the plaintiffs § 12-118 appeal without reaching its merits. The defendant nevertheless argues that in deciding the merits of the plaintiff’s § 12-119 claim, Judge Devlin did not limit his consideration to whether the assessment was manifestly excessive or arrived at in disregard of the statutory provisions governing property valuation; rather, he employed the standard of review applicable to § 12-118 appeals and considered whether the plaintiff’s property had been substantially overvalued. Specifically, the defendant asserts that Judge Devlin’s comments on the “wide variance in the appraisal figure[s] submitted,” and on his power to accept so much of the testimony of the appraisal experts as he found reasonable, indicate that he was considering issues beyond what is required for a § 12-119 claim. According to the defendant, these comments, coupled with citations to cases decided under § 12-118, demonstrate that Judge Devlin did not narrowly confine his consideration to whether there was misfeasance or nonfeasance by the taxing authority, or whether the assessment was arbitrary or so
Res judicata and collateral estoppel “express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.” State v. Ellis, 197 Conn. 436, 464-65, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990). “Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim.” (Emphasis added.) In re Juvenile Appeal (83-DE), 190 Conn. 310, 316, 460 A.2d 1277 (1983). “ ‘For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.’ ” (Emphasis added.) Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988); see also Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); State v. Hope, 215 Conn. 570, 584, 577 A.2d 1000 (1990), cert. denied, 498 U.S. 1089, 111 S. Ct. 968,112 L. Ed. 2d 1054 (1991). “An issue is ‘actually litigated’ if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. (Emphasis added.) 1 Restatement (Sec
The defendant argues that because Judge Devlin used the criteria for determining the reasonableness of valuation under § 12-118 in his consideration of the plaintiffs direct action under § 12-119, those findings should have precluded the plaintiff from relitigating the claim. Both Judge Ryan, in ruling on the motion for summary judgment, and Judge Lewis, in trying the first count, rejected the defendant’s contention that Judge Devlin’s decision had collateral estoppel effect on this action, in light of the well recognized distinctions between the two statutes.
There is another and more compelling reason why the defendant’s argument must fail. Although it was essential to the decision of a § 12-119 claim for Judge Devlin to examine whether § 12-63 had been followed, he did not determine as part of his disposition of the § 12-119 claim what constituted the highest and best use of the property in 1979, a decision Judge Lewis was later called upon to make in connection with the § 12-118 appeal. In response to a motion to clarify his March 7,1984 decision, Judge Devlin stated that he had not specifically determined the highest and best use of the plaintiff’s property, although it “was an element an appraiser was entitled to take into consideration in his determination of the fair market value.”
We read Judge Devlin’s decision to reflect approval of the assessor’s use of § 12-63 as a means of assessment, and to hold merely that such consideration by
Regardless of whether Judge Devlin journeyed beyond what was essential for a determination of the § 12-119 claim, he did not make factual findings that would collaterally estop a later court from deciding the value of the property. The issue raised by the § 12-119 appeal was whether the relevant statutes had been properly applied by the assessor. On the other hand, the issue raised by the § 12-118 appeal concerned what actually constituted the fair market value of the property as ascertained by a decision about its highest and best use. The earlier decision, therefore, did not have any preclusive effect upon the later court’s ability to decide the case before it.
II
The defendant next claims that the trial court incorrectly determined, contrary to the decision of the defendant, that the plaintiff’s property had been overvalued by the Greenwich tax assessor. More specifically, the defendant claims that the trial court: (1) improperly rejected the cost of replacement approach used by the Greenwich tax assessor to value the plaintiff’s property; (2) incorrectly determined that conversion to condominiums was not the highest and best use of the plaintiff’s property; and (3) improperly relied on the report and testimony of the plaintiff’s appraiser
A
First, the defendant claims that the trial court improperly rejected the cost of replacement approach used by the Greenwich tax assessor to value the plaintiffs property. The defendant argues that because the plaintiff did not offer any direct evidence that the assessor’s analysis was erroneous, the trial court should have given deference to the assessor’s judgment and upheld the initial assessment. We disagree.
The trial court in a § 12-118 appeal hears the case de novo; Stamford Apartments Co. v. Stamford, 203 Conn. 586, 588, 525 A.2d 1327 (1987); and has “ ‘ “the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as [it] finds applicable . . . ’ (Emphasis added.) Pandolphe’s Auto Parts, Inc. v. Manchester, [181 Conn. 217, 221, 435 A.2d 24 (1980)], quoting Greenfield Development Co. v. Wood, 172 Conn. 446, 451, 374 A.2d 1084 (1977).” Stamford Apartments Co. v. Stamford, supra, 594.
In the absence of any evidence on why the assessor used the cost of replacement approach to value the plaintiff’s property and how the values in the assessment were calculated, deference to the assessor’s valuation was not required. Further, both Robert L. Levy, the plaintiff’s appraiser, and Michael Gold, the defendant’s appraiser, testified that the cost of replacement approach was the least valuable method of valuing the plaintiffs property. The Greenwich assessor at the time of trial, John P. Grecco, Jr., also testified that the cost of replacement approach was the worst method and the comparable sales approach was the best method of valuing an apartment building. It therefore was not improper for the trial court to reject the cost of replacement approach and the assessor’s valuation.
The defendant next claims that the trial court incorrectly determined that conversion to condominiums was not the highest and best use of the plaintiffs property. The defendant argues that this determination was incorrect because: (1) the trial court relied on testimony offered by the plaintiff that, at the time of the revaluation in October, 1979, it had no intention of converting its apartment building into condominiums; and (2) the trial court’s acceptance of Levy’s comparable sales analysis, which was based on the assumption that the building would be converted to condominiums, is inconsistent with its determination. We reject these arguments.
The parties agree that, while property should be valued according to its highest and best use, the valuation of an apartment building may be based on its potential conversion to condominiums only if conversion is reasonably probable in the near future. See Stamford Apartments Co. v. Stamford, supra, 592. The highest and best use of a property and the reasonable probability of conversion are questions of fact for the trier of fact. Id., 592-93; see Greene v. Burns, 221 Conn. 736, 748, 607 A.2d 402 (1992). We will not “substitute our evaluation of the evidence for that of the trial court . . . .” Stamford Apartments Co. v. Stamford, supra, 593.
The defendant argues that the trial court relied on the plaintiff’s subjective intent in determining whether conversion was reasonably probable.
The defendant also argues that the trial court’s finding that conversion was not reasonably probable is inconsistent with its acceptance of Levy’s comparable sales analysis, because the analysis assumed conversion to condominiums. This argument is based on the fact that the three apartment buildings that Levy used in the analysis were all converted into condominiums. The trial court was aware of this implied inconsistency, and specifically noted that Levy’s analysis favored the defendant to the extent that the comparable buildings had been converted, even though conversion was not probable at the plaintiff’s building.
We have said that the “ ‘process of estimating the value of property for taxation is, at best, one of approx
C
Finally, the defendant claims that the trial court’s reliance on the report and testimony of Levy, the plaintiffs appraiser, was clearly erroneous because that evidence conflicted with testimony given by Levy in an earlier case. We disagree.
Levy was the appraiser for the taxpayer in an earlier case, Stamford Apartments Co. v. Stamford, supra. In that case, Levy adjusted the results of his comparable sales analysis to reflect differences in interest rates on the revaluation date and on the sale dates of the com
We have long held that “[t]he question of evaluating the credibility of the appraisers is for the trial court, not this court. Pandolphe’s Auto Parts, Inc. v. Manchester, [supra, 220-21]; see also Uniroyal, Inc. v. Board of Tax Review, [supra, 174 Conn. 387].” Stamford Apartments Co. v. Stamford, supra, 592. This court “cannot retry the facts or pass upon the credibility of the witnesses.” (Internal quotation marks omitted.) Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 220. “[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Id., 221-22.
The trial court gave the defendant ample opportunity to challenge Levy’s credibility. The defendant was permitted to cross-examine Levy extensively about the evidence he had given in the earlier case, and to introduce portions of that evidence as exhibits. In his November 13, 1992 memorandum of decision, Judge Lewis specifically stated, “I find the testimony of the plaintiff’s appraiser to be credible.” After reviewing the evidence in the record, we cannot say that that finding was clearly erroneous.
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes (Rev. to 1987) § 12-118 provides in relevant part: “Any person . . . claiming to be aggrieved by the action of the board of tax review in any town or city may, within two months from the time 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 . . . . The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable .... If the assessment made by the board of tax review is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and costs, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and costs. 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, together with interest and costs. 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.”
Section 12-118 now provides for appeals to the Superior Court from decisions of the Connecticut appeals board for property valuation. The provisions of § 12-118 allowing appeals from decisions of local boards of tax review have been moved to General Statutes § 12-117a.
General Statutes § 12-119 provides in relevant part: “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or 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 .... 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.”
General Statutes (Rev. to 1979) § 12-62 provides in relevant part: “Commencing October 1, 1978, the assessors of all towns, consolidated towns and cities and consolidated towns and boroughs shall, no later than ten years following the last preceding revaluation of all real property and every ten years thereafter, view all of the real estate of their respective municipalities, and shall revalue the same for assessment . . . .”
General Statutes § 12-62a provides in relevant part: “(b) Each . . . municipality shall, no later than the close of its next revaluation required under the provisions of section 12-62, assess all property for purposes of the local property tax at a uniform rate of seventy per cent of present true and actual value, as determined under section 12-63.”
Prior to June, 1983, the property belonged to the estate of Alfred L. Kaskel, which was the named plaintiff in the 1983 action. The defendant claims, and the plaintiff does not dispute, that the plaintiff, Carol Management Corporation, was also a party to the 1983 action, and that the estate and the plaintiff corporation were one and the same entity. This claim is supported by the record in this case. The estate deeded the property to the plaintiff in June, 1983.
General Statutes § 12-111 provides in relevant part: “[A]ny person . . . claiming to be aggrieved by the doings of the assessors of [a] town may appeal therefrom to [the] board of tax review . . .
That case, Estate of Alfred Kaskel v. Greenwich, Superior Court, judicial district of Stamford-Norwalk, Docket No. 760016502 (March 7,1984), was never appealed.
The plaintiff subsequently revised its complaint to include the 1987,1988, 1989, 1990 and 1991 tax years.
In its motion for summary judgment, the defendant also claimed that Judge Devlin’s 1984 decision on the General Statutes § 12-119 claim precluded the § 12-119 claim in the second count of the plaintiffs complaint under principles of res judicata. The court, Ryan, J., agreed and granted summary judgment as to the second count of the plaintiffs complaint. That decision is not involved in this appeal.
The court relied on Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 339-40, 597 A.2d 326 (1991).
General Statutes § 12-63b provides in relevant part: “(a) The assessor or board of assessors in any town, when determining the present true and actual value of real property as provided in section 12-63, which property is used primarily for the purpose of producing rental income, exclusive of such property used solely for residential purposes, containing not more than six dwelling units and in which the owner resides, and with respect to which property there is insufficient data in such town based on current bona fide
General Statutes § 12-63 provides in relevant part: “The present true and actual value of . . . property shall be deemed by all assessors and boards of tax review to be the fair market value thereof and not its value at a forced or auction sale.”
The appraiser analyzed three comparable apartment buildings in Greenwich—Virginia Court, Fairfield House, and Harborview—that were sold between February and May, 1981, about one and one-half years after the October, 1979 revaluation date. The sale price per room at these buildings was $11,307, $14,312 and $17,614, respectively. After adjusting these figures to reflect date of sale and other differences between the three buildings, the appraiser arrived at an adjusted price per room of $8904, $13,382, and $13,205, respectively. The appraiser decided to use $13,000 as the estimated value per room of the plaintiffs building. When this figure was multiplied by 187, which is the total number of rooms in the building, the overall value of the property rounded out to $2,400,000.
See footnote 12.
In Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 342, 597 A.2d 326 (1991), we noted that “[a]t least four methods exist for determining the fair market value of property for taxation purposes: (1) analysis of comparable sales; (2) capitalization of gross income; (3) capitalization of net income; and (4) reproduction cost less depreciation and obsolescence. Lomas & Nettleton Co. v. Waterbury, 122 Conn. 228, 230, 188 A. 433 (1936); see also General Statutes § 12-63b. Each of these is an approved method of ascertaining the actual value of real estate for purposes of taxation.” (Internal quotation marks omitted.)
The defendant also argues that the trial court’s conclusion that the assessment “substantially overvalued” the plaintiff’s property “because it was based on an erroneous assumption that it was reasonably probable on October 1,1979, that the property would be converted to condominium units” was clearly erroneous, because the replacement cost approach “is not concerned with the form of ownership of the property.” As discussed above, neither the assessor nor the appraiser who valued the property in 1979 testified at the trial. The defendant’s appraiser at trial, Michael Gold, testified that he performed a cost of replacement analysis “reflecting the highest and best use for condominium conversion.” The trial court could reasonably have concluded that the Greenwich assessor, like Gold, had assumed condominium conversion in performing the cost of replacement analysis.
The defendant does not argue that the owner's intent is irrelevant to the issue of reasonable probability of conversion, only that the court may not rely on it. Our decision in Stamford Apartments Co. v. Stamford, 203 Conn. 586, 525 A.2d 1327 (1987), affirmed a finding of no probability of conversion that was based, at least in part, on the owner’s intent not to
The report submitted by the defendant’s appraiser, Michael Gold, estimated that the conversion costs would be $26 per square foot, for a total of more than $1.5 million.
The plaintiff’s appraiser, Robert L. Levy, testified that by October, 1979, only one apartment building in central Greenwich had been converted to condominiums. He stated: “I don’t think one building necessarily makes it a market. Don’t forget, there is a difference between conversion and new construction. I differentiate the two. There was a market for new construction of condominiums. There appears to be a much more limited market for conversion of older buildings based upon the fact that only one had taken place.”
The defendant’s appraiser, Michael Gold, testified that there was a shortage of rental apartments in the area in October, 1979.
A witness for the plaintiff testified that in October, 1979, the plaintiff’s apartment building had a large population of senior citizens.
See footnote 11.
Had the court chosen to adopt a capitalization of income analysis (which is not the preferred method under General Statutes § 12-63b), it could have relied on the alternative analysis of the plaintiffs appraiser, Levy. Levy’s capitalization of income analysis yielded a fair market value of $1,500,000, which is $900,000 less than the value the court ultimately found.