Ravi Mohan v. Town of Weston (2011)

MEMORANDUM OF DECISION ON MOTION TO STRIKE (No. 101)

Factual and Procedural Background

The plaintiff, Ravi Mohan, brought this two-count application for relief (“application”) pursuant to General Statutes § 12–119 ¹ against the defendant, the town of Weston.   In his application, the plaintiff alleges that the Weston town assessor assessed an under-construction addition to his property before a certificate of occupancy was issued or the addition was used for the purpose for which it was built, in violation of General Statutes § 12–53a, and failed to set a “true and actual” valuation of his property, in violation of General Statutes § 12–63.   The plaintiff alleges that the wrongful assessment took place on October 1, 2009, when the addition was forty-five percent complete, and that he believed the tax was lawful at the time and paid the tax in full by the due date.   According to the application, subsequent assessments caused the plaintiff to question the assessor's actions, prompting the plaintiff to research Connecticut property-tax law.   The plaintiff seeks a reduction in the assessment of his property and reimbursement on the taxes he alleges he overpaid, among other relief.   The plaintiff commenced this action by service of process on the Weston town clerk on December 28, 2010.

On February 15, 2011, the defendant moved to strike both counts of the application on the ground that it was brought after the expiration of the one-year limitations period of § 12–119,² which began running on October 1, 2009.   The motion is accompanied by a memorandum of law.   On February 24, 2011, the plaintiff filed a memorandum in opposition to the motion to strike, urging the court to equitably toll the statute of limitations in his favor.   The court heard oral argument from the plaintiff and the defendant's counsel at short calendar on March 14, 2011.

Discussion

“Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39(a).  “[I]n determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010).

“[O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike ․ This is because a motion to strike challenges only the legal sufficiency of the complaint and might ․ deprive a plaintiff of an opportunity to plead matters in avoidance of the statute of limitations defense.”  (Citations omitted;  internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 344–45 n.12, 890 A.2d 1269 (2006).   Two exceptions exist to this general rule.  “The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the [s]tatute of [l]imitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer.”  (Internal quotation marks omitted.)  Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993).   The second exception is that “when a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right—it is a limitation of the liability itself as created, and not of the remedy alone.”  (Internal quotation marks omitted.)  Greco v. United Technologies Corp., supra, 277 Conn. 345 n.12.

Thus, the court must first determine whether this motion to strike was properly brought.   In his opposition papers, the plaintiff argues that beginning in February 2010, he “diligently made efforts to verify the correctness of the actions of the defendant” through moves that “were informal, verbal, and attempted to be conciliatory.”   The defendant's response to these efforts was not to the plaintiff's satisfaction, and the plaintiff proceeded to write two letters to the Weston tax assessor in fall 2010, copies of which the plaintiff attached to his opposition papers.   This diligence, according to the plaintiff, necessitates the application of the doctrine of equitable tolling of a statute of limitations to his action.   The plaintiff's application, however, does not refer to any such interaction between the plaintiff and the defendant.   At oral argument, the defendant's counsel argued that the plaintiff commenced this action more than one year after he became aware of the increased assessment and that equitable tolling ought not to apply.

The Appellate Court has ruled that statute of limitations cannot be raised on a motion to strike where “[t]he complaint did not state facts that the plaintiffs believed would toll the statute of limitations on their claims” and “[t]he plaintiffs contend[ed] ․ that additional facts are necessary to prove that the claim is not time barred.”  Forbes v. Ballaro, supra, 31 Conn.App. 240–41.   Conversely, “when all the facts establishing the defense are apparent from a reading of the complaint and no claim of tolling is made, the motion to strike is proper.”  Allen v. Endrukaitis, 35 Conn.Sup. 286, 288, 408 A.2d 673 (1979).   See also Liebig v. Farley, Superior Court, judicial district of New London, Docket No. CV 08 5005405 (October 27, 2009, Peck, J.) (“where the claim of tolling of the statute of limitations raises facts outside the pleadings, it cannot be resolved by a motion to strike”);  0'Keefe v. Fazio, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 04 0198690 (May 17, 2005, Tyma, J.) (39 Conn. L. Rptr. 356, 358) (ruling that the first exception to the general rule on raising the defense of statute of limitations does not apply when the parties disagree over whether facts stated in the complaint are sufficient to decide whether the continuing course of conduct doctrine tolls the statute of limitations).

In the present action, the parties do not agree that the application sets forth all the facts that are necessary to decide whether the statute of limitations ought to bar the plaintiff's claims.   In his opposition to the motion to strike, the plaintiff argues that additional facts must be considered in deciding whether the limitations period ought to be tolled.   Thus, the court rules that the first exception to the general rule does not apply so as to allow the defendant to raise the statute of limitations in the motion to strike.

The next inquiry is whether or not the second exception applies.  Greco v. United Technologies Corp., supra, 277 Conn. 345 n.12. This determination requires an assessment of whether the statute pursuant to which the plaintiff brings his claims, General Statutes § 12–119, created a right of action that did not exist at common law.  Id. “Section 12–119 has been held to be merely declaratory of existing legal and equitable rights.”  (Internal quotation marks omitted.)  Wilson v. Kelley, 224 Conn. 110, 123, 617 A.2d 433 (1992).  “[T]he predecessor to § 12–119 was clearly intended to take the place of the remedy in equity based on an overvaluation of the property ․” (Internal quotation marks omitted.)  Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 421, 797 A.2d 494 (2002).  “It is well settled that § 12–119 codified the then existing common-law right and remedy of assumpsit that allowed a taxpayer to challenge an illegally assessed tax.”  Crystal Lake Clean Water Preservation Ass'n. v. Ellington, 53 Conn.App. 142, 150, 728 A.2d 1145, cert. denied, 250 Conn. 920, 738 A.2d 654 (1999).  “[T]he remedies and relief available under § 12–119 are the same as those available under the common law in a challenge to the imposition of an illegal tax.”  Stepney Pond Estates, Ltd. v. Monroe, supra, 260 Conn. 422.   The Supreme Court has “read the limitation period contained in § 12–119 not as a jurisdictional prerequisite, but only as an ordinary statute of limitations.”  Wilson v. Kelley, supra, 224 Conn. 123.

Connecticut appellate authority clearly establishes that § 12–119 codified a common-law right of action.   Accordingly, the second exception to the general rule is inapplicable to the present action.   The defendant therefore cannot raise its claim that this action is barred by the statute of limitations through a motion to strike.

Order

For the foregoing reasons the defendant's motion to strike the plaintiff's application for relief is denied.

Alfred J. Jennings, Jr.

Judge Trial Referee

FOOTNOTES

FN1. 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.”.  FN1. 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.”

FN2. General Statutes § 12–119 provides in relevant part:  “Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action ․.  FN2. General Statutes § 12–119 provides in relevant part:  “Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action ․

Jennings, Alfred J., J.T.R.