Sprague Water & Sewer Authority v. Bonnie Realty Company (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 145 & MOTION TO STRIKE # 147

FACTS

On December 1, 2009, the plaintiff, Sprague Water and Sewer Authority, filed a complaint seeking to foreclose on a municipal lien for unpaid sewer charges.   In its complaint, the plaintiff alleges the following facts.   The defendant, Bonnie Realty Co., was the record owner of real estate situated in Sprague, Connecticut on October 1, 2007.¹  Sewer charges in the amount of $8,582.13 were accessed upon the property.   On March 4, 2008, the charges became due and payable.   A portion of the charge has been paid, but an outstanding balance remains.   On December 10, 2008, the plaintiff filed and recorded on the town of Sprague's land records a certificate of lien for the charge with interest and fees.   The defendant now owns and is in possession of the premises.   The plaintiff is entitled to foreclosure of the municipal lien, possession of the premises, reasonable attorneys fees and costs.

On May 10, 2010, the defendant filed a motion to dismiss the plaintiff's complaint and a motion to strike the plaintiff's complaint.   In both the motion to strike and the motion to dismiss, the defendant makes the same argument.   That is, the defendant argues that the plaintiff has failed to plead with specificity those facts necessary to establish a right of foreclosure pursuant to General Statutes § 49-72 and Practice Book § 10-70(a).   The defendant contends that because the plaintiff did not plead the specific dates when each charge became due or was assessed, the plaintiff has not pleaded a valid cause of action.   It further argues that “[i]f the plaintiff cannot plead what the statute requires then the court lacks subject matter jurisdiction and a[m]otion to [d]ismiss would have to be granted on that basis.”

On June 16, 2010, the plaintiff filed an objection to the defendant's motion to dismiss and an objection to the defendant's motion to strike.   The plaintiff argues that it has adequately plead a cause of action under General Statutes § 49-72 and Practice Book § 10-70(a).   It contends that pursuant to Practice Book § 10-70(b), the defendant's argument is better suited to a special defense rather than a motion to strike or motion to dismiss.

The court heard oral argument on both the motion to strike and the motion to dismiss at short calendar on June 28, 2010.

DISCUSSION

IMotion to Dismiss

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).  “[T]he question of subject matter jurisdiction ․ once raised, either by a party or by the court itself ․ must be answered before the court may decide the case.”  (Internal quotation marks omitted.)  Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007).

Generally, a statute of limitations defense “must be specially pleaded and cannot be raised by a (motion to dismiss].”  Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972);  see also Practice Book § 10-50.   Nevertheless “[w]here ․ a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ․ In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone ․ Under such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time, even by the court sua sponte, and may not be waived.”  (Internal quotation marks omitted.)  Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993).

General Statutes § 49-72 provides in relevant part as follows:  “Any private water company which is owed rates or charges for connection with or for the use of its water system and such rates or charges are not paid when due has a lien on the real estate served and a charge against the owners of such real estate from the date the rates or charges were due, provided the owner of such real estate when the lien is recorded is the party that owes such rates or charges.   The lien and charge shall bear interest at the rate of eighteen per cent per annum so long as the rates or charges remain unpaid.   The lien may be recorded and released in the manner provided for recording and releasing tax liens.   The lien shall not continue for more than one year after the date the rates or charges were due, unless the secretary of the company, before the expiration of that year, has filed a certificate of continuation of the lien in the manner provided by law for the continuance of tax liens.   When continued the lien shall be valid for fourteen years thereafter.”  (Emphasis added.)

In its memorandum in support, the defendant states that it “has filed a Motion to Dismiss because the plaintiff has to plead (and later prove) the jurisdiction requirements to give this court authority to foreclose on its municipal water and sewer liens.   If the plaintiff cannot plead what the statute requires then the court lacks subject matter jurisdiction and a. Motion to Dismiss would have to be granted on that basis.”   The focus of the defendant's argument, therefore, is on what has been pleaded in the complaint.

“The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ․” (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).  “When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  State v. Marsh & McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008).

In the present case, the defendant has produced the affidavit of Debra Watson, a paralegal employed by the defendant's attorney, and a copy of the December 10, 2008 certificate of lien that had been filed on the town of Sprague's land records.   The certificate of lien states that “[t]he lien continued by this certificate is to secure payment of a Sewer and/or Water Charge, the Principal amount stated above [$8,582.13], which is due to said Sprague Water and Sewer Authority, with legal, interest fees and charges thereon, in the name stated within this certificate, principal of which a sewer and/or water charge becomes due on March 01, June 01, September 01, and December 01, of each year.”   The statements made within the certificate of lien aligns with those allegations contained within the plaintiff's complaint.   In its complaint, the plaintiff clearly alleges that sewer charges in the amount of $8,582.13 were assessed on the property owned by the defendant, that such charges became due and payable on March 4, 2008, and that the plaintiff filed and recorded a certificate of lien for the charges on the Sprague land records on December 10, 2008.   Construing these allegations in a manner most favorable to the pleader, while keeping in mind the requirements of General Statutes § 49-72, the court finds that it has subject matter jurisdiction over the case.   The defendant's motion to dismiss is therefore denied.

II

Motion to Strike

“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 motion to strike challenges the legal sufficiency of a pleading ․ and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)   Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts are taken as admitted.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).   Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

The defendant's argument in support of its motion to strike is identical to its argument in support of its motion to dismiss.   The defendant contends that the plaintiff has failed to plead with specificity those facts necessary to establish a right of foreclosure pursuant to General Statutes § 49-72 and Practice Book § 10-70(a).   It argues that in order “to establish that the lien is valid the date of the rates or charges were due need[s] to be pleaded to establish that it can be foreclosed in the same manner as a lien for taxes [in compliance with] Connecticut General Statutes § 49-72.”

“In any action to foreclose a municipal tax or assessment lien the plaintiff need only allege and prove:  (1) the ownership of the liened premises on the date when the same went into the tax list, or when said assessment was made;  (2) that thereafter a tax in the amount specified in the list, or such assessment in the amount made, was duly and properly assessed upon the property and became due and payable;  (3) (to be used only in cases where the lien has been continued by certificate) that thereafter a certificate of lien for the amount thereof was duly and properly filed and recorded in the land records of the said town on the date stated;  (4) that no part of the same has been paid;  and (5) other encumbrances as required by the preceding section.”  Practice Book § 10-70(a).

In the present case, the plaintiff has alleged that the defendant owned the property at the time the assessment was made, that sewer charges in the amount of $8,582.13 were duly assessed on the defendant's property on March 4, 2008, that a certificate of lien was duly and properly filed and recorded on the Sprague land records on December 10, 2008, and that Wells Fargo Bank ² has an encumbrance on the property that is junior and subsequent in right to its own interest.   Taking all well-pleaded facts as admitted, the plaintiff has pleaded a legally sufficient cause of action under Practice Book § 10-70(a) and under General Statutes § 49-72.

CONCLUSION

For the foregoing reasons, the court denies the defendant's motion to dismiss (# 145) and denies the defendant's motion to strike.

Martin, J.

FOOTNOTES

FN1. Wells Fargo Bank N.A., as trustee for the registered holders of CBA Commercial Assets, Small Balance Commercial Mortgage Pass-Through Certificate Series 2005-1, was also named as a defendant in the present action.   The plaintiff has alleged that Wells Fargo Bank has an encumbrance on the property that is junior and subsequent in right to its own interest.   Wells Fargo Bank is a non-appearing party..  FN1. Wells Fargo Bank N.A., as trustee for the registered holders of CBA Commercial Assets, Small Balance Commercial Mortgage Pass-Through Certificate Series 2005-1, was also named as a defendant in the present action.   The plaintiff has alleged that Wells Fargo Bank has an encumbrance on the property that is junior and subsequent in right to its own interest.   Wells Fargo Bank is a non-appearing party.

FN2. See note 1..  FN2. See note 1.

Martin, Robert A., J.