Town of Trumbull v. Margaret M. Skoog et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 115)

FACTUAL BACKGROUND

On August 20, 2009, the plaintiff, the town of Trumbull, filed a four-count complaint in which it alleged the following facts.¹  On or about October 1, 1992, a tax in the amount of $2,282 was assessed upon premises now owned by the defendants, Margaret M. Skoog and Robert L. Skoog.   The 1992 tax, which is a lien on the premises, became due on July 1, 1993.   The plaintiff filed and recorded a deferral tax lien for the October 1, 1992 tax on the Trumbull land records on September 13, 1993.   The 1992 tax was not paid and remains due in full, plus interest, lien fees and other charges.   On account of this and other nonpayments of tax, the plaintiff seeks foreclosure of its lien, immediate possession of the premises, interest, late charges, court costs and other expenses.

On October 20, 2009, the defendants filed an answer and special defenses in which they argue that the first count of the complaint is barred by the statute of limitations pursuant to General Statutes § 12-174 and by the terms of the lien.   On November 4, 2009, the plaintiff filed a motion to strike both special defenses of the defendants, accompanied by a memorandum of law.   The plaintiff moves to strike the special defenses on the ground that the defenses are insufficient as a matter of law.²  Attached to this memorandum is an exhibit containing the remarks of Representative Fontana during a June 8, 1999 hearing.   The defendants filed a memorandum in opposition to the motion to strike on November 19, 2009, with a copy of the 1993 tax lien attached as an exhibit.

LEGAL DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike.”  Barasso v. Rear Still Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).  “In ․ ruling on the ․ motion to strike, the trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency.”  Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).  “The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action ․ A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage, the note or both ․” Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002).   A claim that an action is barred by the lapse of the statute of limitations may be pleaded as a special defense.   See Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993).

In their answer and special defenses, the defendants argue that the plaintiff's first count is barred by the fifteen-year statute of limitations codified in General Statutes § 12-174.   Additionally, the defendants claim that the lien mentioned in the first count provides by its own terms that it “continues for a period of not more than 15 years from the date hereof,” and that the complaint alleges that the lien was filed on September 13, 1993, more than fifteen years prior to the commencement of the present action.   In its memorandum in support of its motion to strike the plaintiff's special defenses, the plaintiff counters that § 12-164(b) exempts deferred tax liens from the fifteen-year statute of limitations.   In support of its memorandum, the plaintiff attaches an exhibit of the comments of Representative Fontana regarding Public Acts 1999, No. 99-283 and purporting to show that the legislature's intent in amending § 12-164(b) in 1999 was to exempt such liens from the statute of limitations in § 12-174.   In their memorandum in opposition, the defendants argue that § 12-164(b) is not relevant to the present case, as § 12-164(b) only applies to liens filed pursuant to § 12-129(n), and that the 1993 tax lien was not filed under this statute.   The defendants attach as an exhibit a copy of the 1993 tax lien.

General Statutes § 12-174, entitled “Deferred collection,” provides in relevant part:  “Each lien continued by certificate under the provisions of this section shall be subject to foreclosure at any time, but shall be invalid after the expiration of fifteen years from the date of recording the certificate containing the same, unless an action of foreclosure has been commenced within such time.”  General Statutes § 12-164(b), which was added by way of an amendment in 1999, provides that:  “[n]otwithstanding the provisions of subsection (a) of this section, liens filed under the provisions of section 12-129n shall be valid without any limitation of time.”   Section 12-129(n) governs the establishment of a municipal property tax relief programs for elderly or disabled homeowners.

“[T]he interpretation of a statute, as well as its applicability to a given set of facts and circumstances, involves a question of law ․ In seeking to determine [the] meaning [of a statute], General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”  (Internal quotation marks omitted.)  Saunders v. Firtel, 293 Conn. 515, 525, 978 A.2d 487 (2009).

In the present case, the court proceeds to examine the legal sufficiency of the defendants' special defenses.   With regard the first special defense, the plaintiff argues that § 12-164(b) preempts the fifteen-year statute of limitations for liens contained in § 12-174.   Under a plain examination of the statutory text, however, § 12-164(b) only abrogates the statute of limitations for those liens filed pursuant to § 12-129(n).  It does not purport to alter the existing fifteen-year statute of limitations under § 12-174 for any other type of lien.   Because the meaning of this text and its interaction with § 12-174 are plain and unambiguous, the court need not consider the extratextual evidence supplied by the plaintiff.³

The plaintiff's complaint and the defendants' special defenses are in agreement that the lien referenced in the first count of the complaint was filed on September 13, 1993.   Additionally, the complaint is devoid of any allegations that the 1993 lien was filed pursuant a municipal property tax relief program for elderly or disabled homeowners under 12-129(n).  Instead, the complaint simply refers to the lien as a “deferral tax lien.”   The defendants' special defenses, meanwhile, allege that the lien is subject to the terms of § 12-174.   Construing these allegations in the manner most favorable to the defendants, and in light of the fact that it is not in dispute that the 1993 lien was filed more than fifteen years prior to the commencement of the present action, the court concludes that the defendants' special defense is legally sufficient as a matter of law.   Accordingly, the court will deny the plaintiff's motion to strike the defendants' first special defense.

The court now turns to the defendants' second special defense, which alleges that the 1993 lien itself provides that it continues for no more than fifteen years.   On this point the plaintiff presents no argument or case law in its supporting memorandum except for the conclusory statement that the second special defense “[is] insufficient as a matter of law ․” Having already determined that the defendants' first special defense is not preempted by § 12-164(b), it is likewise the case that § 12-164(b) cannot bar the defendants' second special defense.   Construing the allegations in the special defenses in favor of the defendants, the court finds that the defendants' second special defense is therefore legally sufficient.   Accordingly, the court will deny the plaintiff's motion to strike the defendants' second special defense.

Based on the foregoing, the plaintiff's motion to strike (# 115) is denied.

HARTMERE, J.

FOOTNOTES

FN1. The first, second, third and fourth counts address nonpayment of the 1992, 1993, 1994 and 1995 taxes, respectively.   Because the defendants' special defense applies only to the first count of the complaint, only this count is discussed herein..  FN1. The first, second, third and fourth counts address nonpayment of the 1992, 1993, 1994 and 1995 taxes, respectively.   Because the defendants' special defense applies only to the first count of the complaint, only this count is discussed herein.

FN2. The court notes as a preliminary matter that the plaintiff's motion to strike fails to specify the grounds of the insufficiency of the defendants' special defense as required by Practice Book § 10-41.   “Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted ․ Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself.”  (Internal quotation marks omitted.)  Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007).   Because the defendants do not object to the form of the plaintiff's motion to strike in their memorandum in opposition, they are deemed to have waived a defense on these grounds.   The court therefore proceeds to consider the motion to strike in its existing form, as § 10-41 is not jurisdictional in nature.   See id..  FN2. The court notes as a preliminary matter that the plaintiff's motion to strike fails to specify the grounds of the insufficiency of the defendants' special defense as required by Practice Book § 10-41.   “Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted ․ Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself.”  (Internal quotation marks omitted.)  Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007).   Because the defendants do not object to the form of the plaintiff's motion to strike in their memorandum in opposition, they are deemed to have waived a defense on these grounds.   The court therefore proceeds to consider the motion to strike in its existing form, as § 10-41 is not jurisdictional in nature.   See id.

FN3. Notwithstanding the immateriality of the plaintiff's exhibit, the remarks of Representative Fontana merely confirm that § 12-164(b) only exempts liens recorded under municipal property tax relief programs for the elderly or the disabled, while reaffirming the applicability of the fifteen-year statute of limitations to other circumstances..  FN3. Notwithstanding the immateriality of the plaintiff's exhibit, the remarks of Representative Fontana merely confirm that § 12-164(b) only exempts liens recorded under municipal property tax relief programs for the elderly or the disabled, while reaffirming the applicability of the fifteen-year statute of limitations to other circumstances.

Hartmere, Michael, J.