JJT v. Town of Oxford (2014)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 101

The plaintiff, JJT & M, Inc., commenced this action against the defendant, 66 Hawley Road, LLC,¹ by service of process on July 8, 2013.   On September 18, 2013, the plaintiff filed an amended complaint.   In the third count of the amended complaint, the plaintiff alleges the following facts.   The plaintiff is a Connecticut corporation that was and is the rightful owner of commercial real estate located at 66 Hawley Road (the property) in Oxford, Connecticut (the town).   The tax collector for all times relevant to this dispute, Karen Guillet, engaged in a scheme to defraud various owners of real property and, as a direct consequence of this scheme, various Oxford residents such as the plaintiff were issued real estate tax bills by the town that were inflated, false, and fraudulent.   Although the plaintiff attempted to protest and resist the real estate tax bills, the town nonetheless caused tax liens to be recorded against the plaintiff's property, caused a lis pendens of a foreclosure action to be recorded on the town's land records, and subsequently sold the property at a tax sale to Angelo Melisi on June 28, 2012.   Melisi has since conveyed his interest in the property to the defendant.   The plaintiff, however, retains title because the defendant's claims arise from a tax sale based on false and fraudulent real estate tax bills that were the result of a tax fraud scheme and are therefore null and void.

On August 23, 2013, the defendant filed a motion to strike the third count of the amended complaint on the grounds that the plaintiff has failed to state a cause of action for quiet title.   The defendant submitted a memorandum of law in support of its motion.   On September 18, 2013, the plaintiff submitted a memorandum in opposition to the defendant's motion to strike.

This court heard argument on the matter at short calendar on September 23, 2013.   The parties informed the court that the September 18, 2013 amended complaint was filed by consent to address an allegation not raised in the original complaint.   The court also accepted the plaintiff's recommendation that the plaintiff file an amended motion in opposition, which the plaintiff filed on November 11, 2013.

“The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial.”  Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993).  “It is fundamental that in 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.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   This court “construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).   The motion to strike, however, “does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

In the present case, the defendant moves to strike the third count of the plaintiff's complaint on the ground that the plaintiff has failed to state a cause of action because the plaintiff has not alleged that it did not receive notice of the tax sale and all other alleged defects are validated by General Statutes § 12–159.²  The plaintiff counters, arguing that § 12–159 has an additional exception which prevents the section from curing a defect where the property was not by law liable to be sold to satisfy the tax and that this exception applies to the present dispute.

Before addressing the substantive arguments of the parties, it should be noted that both parties reference allegations and facts not arising from the complaint or from documents attached to it in their respective memoranda.   See, e.g., Defendant's Memorandum of Law in Support (# 101), p. 3 (referencing plaintiff's motion to dismiss in bankruptcy case);  Plaintiff's Amended Memorandum in Opposition (# 105), pp. 1–2 (referencing positions of town and Melisi in separate action).  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).  “Where the legal grounds for ․ a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied.”  (Internal quotation marks omitted.)  Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).   “While there is some Superior Court authority for going outside the complaint on a motion to strike to consider pleadings that are the subjects of judicial notice”;  Rutigliano v. Singer Asset Finance Co., LLC, Superior Court, judicial district of Hartford, Docket No. CV–08–5021433 n.3 (December 20, 2012, Shuman, J.);   several decisions of the Superior Court have rejected this position even in cases where judicial notice could otherwise be taken.   See Union Street Furniture & Carpet, Inc. v. Peerless Indemnity Ins. Co., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–08–5008699–S (July 15, 2010, Brazzel–Massaro, J.) (50 Conn. L. Rptr. 316, 318–19);  Cadle Co. v. Gabel, Superior Court, judicial district of Middlesex, Docket No. CV–00–0091155 (July 31, 2001, Gilardi, J.);   Sand Dollar Development Group, LLC v. Michael, Superior Court, judicial district of New Haven, Housing Session, Docket No. SPNH96–1048736 (February 18, 1997, Levin, J.) (19 Conn. L. Rptr. 453, 453).   Thus, given the procedural posture of this case and the foregoing authority, this memorandum will only consider those allegations arising within or implied from count three of the amended complaint.

Turning to the parties' arguments, § 12–159 provides in relevant part:  “No act done or omitted relative to the assessment or collection of a tax, including everything connected therewith, after the vote of the community laying the same, up to and including the final collection thereof or sale of property therefor, shall in any way affect or impair the validity of such tax as assessed, collected or sought to be collected or the validity of such sale, unless the person ․ contesting the validity of such sale shows that the collector neglected to provide notice pursuant to section 12–157 ․ to such person or to the predecessors of such person in title, and who had a right to notice of such sale, and that the person or they in fact did not know of such sale within six months after it was made, and provided such property was by law liable to be sold to satisfy such tax.”  “Thus, unless [the party challenging the sale] can show that (1) the tax collector failed to mail him notice of the sale and that he did not have actual notice of the sale [six months] after it was made, or (2) that the property was not by law liable to be sold to satisfy the tax, then the ․ proffer of the tax collector's deed is prima facie evidence of [a] valid and unencumbered title to the subject property.”   Berger v. Fitzgerald, 55 Conn.App. 138, 149, 739 A.2d 287, cert. denied, 251 Conn. 922, 742 A.2d 358 (1999).

There are no allegations within count three of the amended complaint that the plaintiff did not receive notice of the tax sale.   Therefore, the court must consider whether the plaintiff's allegations qualify under the second exception to the general rule stated by § 12–159, which raises a question of statutory interpretation.  “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ General Statutes § 1–2z directs this court to first consider the text of the statute and its relationship to other statutes to determine its meaning.   If, after such consideration, the meaning is plain and unambiguous and does not yield absurd or unworkable results, we shall not consider extratextual evidence of the meaning of the statute ․ Only if we determine that the statute is not plain and unambiguous or yields absurd or unworkable results may we consider extratextual evidence of its meaning such as the legislative history and circumstances surrounding its enactment ․ the legislative policy it was designed to implement ․ its relationship to existing legislation and common law principles governing the same general subject matter ․ The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation ․ We presume that the legislature did not intend to enact meaningless provisions ․ [S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant ․” (Citations omitted;  footnote omitted;  internal quotation marks omitted.)  Tine v. Zoning Board of Appeals, 308 Conn. 300, 305–06, 63 A.3d 910 (2013).

No Connecticut appellate authority has addressed the contours of the second exception in § 12–159, and the only Superior Court opinion to review this language is not particularly helpful in answering the question before the court.³  Considering first the language of the statute itself, “liable” has been defined to be mean “1. Responsible or answerable in law;  legally obligated. 2. (Of a person) subject to or likely to incur (a fine, penalty, etc.)”   Black's Law Dictionary (8th Ed.2004);  see also Random House Webster's College Dictionary (2d Ed. Rev.2000) (defining “liable” as “1. legally responsible ․ 2. subject or susceptible ․ 3. likely or apt ․”).  Given the modification of “liable” by the words “by law” in this section, the more appropriate choices would be “subject to” or “susceptible,” and the exception therefore applies if such property was not by law subject or susceptible to be sold to satisfy such tax.   The focus of this exception thus appears to be whether the property itself can be used to satisfy the tax in question rather than whether taxes themself were proper.

This interpretation does not produce absurd or unworkable results, as both Connecticut and federal law provide situations where real property cannot be levied to satisfy certain taxes.   In Connecticut, for instance, a party cannot use § 12–157 to collect water or sanitation charges.   See General Statutes § 12–155(b) (permitting tax collectors to levy and sell goods and chattels “for any unpaid tax or any unpaid water or sanitation charges,” but only allowing use of levy and sale of party's interest in real property “for any unpaid tax”);  see also General Statutes § 12–162(b)(2) (“an alias tax warrant shall not be issued by a tax collector to levy upon the real estate of any person and sell such real estate pursuant to section 12–157 solely for the purpose of collecting any water or sanitation charges”).   Similarly, the Supreme Court has noted that a party cannot levy warrants on real estate while the property is subject to a receivership.   See Lamkin v. Baldwin & Lamkin Mfg. Co., 72 Conn. 57, 63, 43 A. 593 (1899).   Under federal law, although real property belonging to the Federal Deposit Insurance Corporation (FDIC) is subject to the same state, territorial, county, municipal, and local taxes as other real property, “[n]o property of the [FDIC] shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of the [FDIC], nor shall any involuntary lien attach to the property of the [FDIC].” 12 U.S.C. § 1825(b)(1) and (2) (2012).

In the present case, the central underlying allegations of the third count are that the tax collector engaged in a tax fraud scheme that included the manipulation and alteration of real estate tax assessments, the failure to credit property owners for payments submitted in payment of their real estate tax bills, and/or the theft of taxpayer funds, and as a result, this tax fraud scheme resulted in real estate taxes that were “inflated, false, and fraudulent.”   See Amended Complaint (# 103), count 3, paras. 5–7.   As these alleged acts go to whether the taxes placed upon the property were proper rather than whether it could be sold under applicable laws to satisfy the taxes in question, they are legally insufficient to constitute a basis on which to challenge the tax deed at issue.

Reviewing older versions of the statute in question further supports this interpretation.  Section 12–159 has existed in one form or another since the late nineteenth century.   See General Statutes (1887 Rev.) § 3895.   At the time of its adoption, the statutory scheme explicitly disallowed or conditioned the levying and sale of real property to satisfy tax debt in certain circumstances.   See General Statutes (1887 Rev.) §§ 3898 and 3899.⁴

Importantly, the predecessors to § 12–159 also included various other exceptions that existed alongside the language that the plaintiff asserts allows his action for quiet title.⁵  Several of these longstanding exceptions, however, were removed by No. 95–228 of the 1995 Public Acts, which left in place the language on which the defendant relies.   See Public Acts 1995, No. 95–228, § 5. In the present case, several of the plaintiff's allegations would have, under older versions of § 12–159, constituted an “act done or omitted [which] caused said tax to be greater than it would have been had a tax of the same percent in favor of said community been in all respects legally assessed against the taxpayer ․” General Statutes (1902 Rev.) § 2401.   This language has since been excised from the statute, foreclosing this exception to the general curative provisions of § 12–159.   Therefore, whatever the meaning or scope of the second present exception to § 12–159 might be, construing so broadly the language on which the plaintiff relies and which existed at the same time as the exceptions since removed would have rendered superfluous the exception for taxes that were greater than could be legally assessed against a specific taxpayer.

Finally, the case on which the plaintiff relies, Newton v. Schott, 87 Conn. 142, 87 A. 271 (1913), does not command a different result.   In that case, the tax collector made a levy upon the real estate sold at the tax sale for the various taxes due for one year only, but gave notice that the sale would be for unpaid taxes assessed over nine years.  Id., 144–45.   In so doing, the Supreme Court held that the sale did not meet the requirements of the predecessor of § 12–157.  Id., 146.   Importantly, the court also held that § 2401, the predecessor to the present § 12–159, did not cure the defect because another exception no longer present in § 12–159 ⁶ applied.   Id., 147–48 (holding that, because “[c]ertificates of lien had been filed for some of these taxes, but not all of them” and thus “some ․ claims were [e]ncumbrances upon the real estate, and others were not,” party in that case “was not bound to redeem for taxes that were invalid as a lien against the property” and to require otherwise fell afoul of exception to § 2401 for acts or omissions that “put [party contesting validity of sale] to a greater expense in redeeming the property sold than if the same had been sold in all respects according to the law” [internal quotation marks omitted] ).   The court thus did not address in its analysis of that section's curative powers the language on which the plaintiff relies or even acknowledge in its decision that language existed.   See id., 146–48.

For the foregoing reasons, the motion to strike count three of the amended complaint is granted.

The Court

By John W. Moran, Judge Trial Referee

FOOTNOTES

FN1. The plaintiff also asserts causes of action against the town of Oxford in counts one and two.   Because count three only asserts a cause of action against 66 Hawley Road, LLC, however, it alone will be referred to as “the defendant” throughout this memorandum..  FN1. The plaintiff also asserts causes of action against the town of Oxford in counts one and two.   Because count three only asserts a cause of action against 66 Hawley Road, LLC, however, it alone will be referred to as “the defendant” throughout this memorandum.

FN2. Section 12–159 was amended by No. 13–276, § 32, of the 2013 Public Acts, which made technical changes to the statute that are not relevant to the issue before this court.   For purposes of clarity, this memorandum will refer to the current revision of the statute..  FN2. Section 12–159 was amended by No. 13–276, § 32, of the 2013 Public Acts, which made technical changes to the statute that are not relevant to the issue before this court.   For purposes of clarity, this memorandum will refer to the current revision of the statute.

FN3. In Republic Credit Corp. v. Caldrello, Superior Court, judicial district of New London, Docket No. CV–10–16332 (September 11, 2000, Hurley, J.T.R.) (28 Conn. L. Rptr. 40, 40–41), the court analyzed this exception in the context of a motion to dismiss a summary process action.   In that case, the property was sold at a tax sale on June 30, 1998, and the purchaser recorded the deed on July 1, 1999.  Id., 40.   Because the original deed erroneously conveyed title to two parcels, however, a corrected second deed was issued and recorded on April 17, 2000.  Id. The court, in reviewing the claim that the party to whom the purchaser conveyed the property lacked standing to pursue the summary process action, held that the second exception to § 12–159 did not apply to the circumstances before it.  Id., 40–41.   The court explained its reasoning as follows:  “Even if the original deed erroneously included an additional parcel of land, this is irrelevant because the defendants do not claim that the property actually involved in the present case was not ‘by law liable to be sold to satisfy such tax.’   Significantly, the defendants have nowhere asserted that the property involved in the present case is other than the property described in the second, correct deed.”  Id., 41..  FN3. In Republic Credit Corp. v. Caldrello, Superior Court, judicial district of New London, Docket No. CV–10–16332 (September 11, 2000, Hurley, J.T.R.) (28 Conn. L. Rptr. 40, 40–41), the court analyzed this exception in the context of a motion to dismiss a summary process action.   In that case, the property was sold at a tax sale on June 30, 1998, and the purchaser recorded the deed on July 1, 1999.  Id., 40.   Because the original deed erroneously conveyed title to two parcels, however, a corrected second deed was issued and recorded on April 17, 2000.  Id. The court, in reviewing the claim that the party to whom the purchaser conveyed the property lacked standing to pursue the summary process action, held that the second exception to § 12–159 did not apply to the circumstances before it.  Id., 40–41.   The court explained its reasoning as follows:  “Even if the original deed erroneously included an additional parcel of land, this is irrelevant because the defendants do not claim that the property actually involved in the present case was not ‘by law liable to be sold to satisfy such tax.’   Significantly, the defendants have nowhere asserted that the property involved in the present case is other than the property described in the second, correct deed.”  Id., 41.

FN4. Section 3898 prohibits a collector of taxes from levying upon and selling under warrant “any real estate which is subject to a mortgage, lien, or other [e]ncumbrance appearing of record at the time of such levy” unless that collector has provided notice within a specified time and in a specified manner.   Section 3899 contains a further prohibition on the use of property subject to a lien or mortgage, providing in relevant part:  “No real estate [e]ncumbered by mortgage or other lien, shall be sold for the payment of any taxes except the taxes laid upon the assessed valuation of such real estate, unless the sale is made subject to such mortgages or other liens thereon, as were recorded before the laying of such taxes.”.  FN4. Section 3898 prohibits a collector of taxes from levying upon and selling under warrant “any real estate which is subject to a mortgage, lien, or other [e]ncumbrance appearing of record at the time of such levy” unless that collector has provided notice within a specified time and in a specified manner.   Section 3899 contains a further prohibition on the use of property subject to a lien or mortgage, providing in relevant part:  “No real estate [e]ncumbered by mortgage or other lien, shall be sold for the payment of any taxes except the taxes laid upon the assessed valuation of such real estate, unless the sale is made subject to such mortgages or other liens thereon, as were recorded before the laying of such taxes.”

FN5. For instance, General Statutes (1902 Rev.) § 2401 provides in relevant part:  “No act done or omitted, relative to the assessment or collection of a tax, including everything connected therewith, after the vote of the community laying the same, up to and including the final collection thereof or sale of property therefor, shall in any way affect or impair the validity of such tax as assessed, collected, or sought to be collected, or the validity of said sale, unless the person contesting such validity shall show that such act done or omitted caused said tax to be greater than it would have been had a tax of the same per cent in favor of said community been in all respects legally assessed against the taxpayer, or did or would have put him to a greater expense in redeeming the property sold than if the same had been sold in all respects according to the law, or that the collector neglected to mail the notice by law required to him, or to those that whom he is in privity of title, and who have a right to notice of such sale, and that he or they in fact did not in fact did not know of such sale within one year after it was made;  provided, said property was by law liable to be sold to satisfy said tax ․” (Emphasis omitted.).  FN5. For instance, General Statutes (1902 Rev.) § 2401 provides in relevant part:  “No act done or omitted, relative to the assessment or collection of a tax, including everything connected therewith, after the vote of the community laying the same, up to and including the final collection thereof or sale of property therefor, shall in any way affect or impair the validity of such tax as assessed, collected, or sought to be collected, or the validity of said sale, unless the person contesting such validity shall show that such act done or omitted caused said tax to be greater than it would have been had a tax of the same per cent in favor of said community been in all respects legally assessed against the taxpayer, or did or would have put him to a greater expense in redeeming the property sold than if the same had been sold in all respects according to the law, or that the collector neglected to mail the notice by law required to him, or to those that whom he is in privity of title, and who have a right to notice of such sale, and that he or they in fact did not in fact did not know of such sale within one year after it was made;  provided, said property was by law liable to be sold to satisfy said tax ․” (Emphasis omitted.)

FN6. This exception was also removed from § 12–159 by the 1995 amendments.   See Public Act 95–228, § 5..  FN6. This exception was also removed from § 12–159 by the 1995 amendments.   See Public Act 95–228, § 5.

Moran, John W., J.T.R.