Opinion
No. 559813
December 23, 2004
MEMORANDUM OF DECISION
By amended complaint dated April 4, 2002, the plaintiff, Hyman Biber, the owner and possessor of real property known as 7 Pierce Road, Preston, Connecticut, brought this action against the defendant, the town of Preston, to quiet title to the aforesaid property. The plaintiff's complaint alleges, in relevant part, that the town may claim estates or interests adverse to the plaintiff's title or interest in the real property owned by the plaintiff in connection with a tax lien certificate dated July 1, 1990 and recorded on the Preston land records on July 5, 1990 in volume 93, page 672. The plaintiff prays to the court for, inter alia, a judgment declaring the tax lien certificate to be void and invalid.
The defendant town filed a counterclaim on March 1, 2002, alleging taxes owed on the same property in the principal amount of $1,283.16 by virtue of a different tax lien which was dated July 1, 1990, received for record by the town clerk on July 1, 1990, and filed in the Preston land records, Tax Liens and Releases in volume 4, page 187. On March 20, 2002, this court granted the defendant town's motion to cite in two additional defendants, Jewett City Savings Bank and Haitian Health Foundation, as both parties are mortgage holders of the real estate.
On January 22, 2004, the plaintiff filed a motion for summary judgment on the grounds that as a matter of law the town of Preston filed a defective tax lien because it: (1) fails to contain an adequate description of the property allegedly subject to a tax lien; and (2) was not timely filed in the Preston land records. In support of his motion, the plaintiff submitted a memorandum of law and attached exhibits consisting of land deeds, the contested tax lien and affidavits. On April 21, 2004, the defendant town filed a memorandum of law in opposition to the plaintiff's motion for summary judgment with attached exhibits consisting of affidavits and a certificate continuing tax lien dated and recorded on July 1, 1990. On May 21, 2004 and August 30, 2004, respectively, the plaintiff filed supplemental memoranda of law in support of his motion for summary judgment with attached exhibits. The following facts are necessary for the court's review of the plaintiff's claims.
The plaintiff's motion for summary judgment appears to relate only to his own quiet title action and not to the defendant town's counterclaim. "Because a counterclaim is a separate and distinct action . . . a party seeking summary judgment on both a complaint and a counterclaim must file an appropriate motion addressed to each." (Citations omitted; internal quotation marks omitted.) Miller v. Bourgoin, 28 Conn.App. 491, 500, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992). Because the plaintiff has not filed a motion for summary judgment addressed to the counterclaim, the court will address only whether the plaintiff is entitled to summary judgment on his own complaint.
In 1968, James O. Darnell, Sr. and Jane A. Darnell, as joint tenants with rights of survivorship, were conveyed by warranty deed real property known as 7 Pierce Road in the town of Preston. This deed was dated and recorded on August 2, 1968 in Volume 49, page 459 of the Preston land records. In 1986, James and Jane Darnell conveyed a portion of the property at 7 Pierce Road to James O. Darnell, Jr. and Doreen Darnell. Allegedly, this new portion of property became known as 9 Pierce Road, and the deed was recorded on August 20, 1986 in volume 77, page 617 of the Preston land records. In July 1990 (dates are now in contention), the town recorded the Certificate Continuation Tax Lien to secure payment of a tax appearing on the October 1, 1988 assessment list. The legal property description contained on the tax lien was "Vol. 77 pg. 167." Allegedly, the legal description, "Vol. 77 pg. 167" does not appear in the chain of title for 7 Pierce Road. On November 13, 1990, James O. Darnell, Sr. quit claimed his interest in Pierce Road Property to Jane A. Darnell. This deed was recorded on November 21, 1990 in volume 94, page 607 of the Preston land records. In December of 1995, the plaintiff, Hyman Biber, purchased 7 Pierce Road from Jane A. Darnell. This deed was dated and recorded on December 15, 1995 in volume 109, page 366 of the Preston land records.
On or about March 15, 2000, the Preston town clerk added a notation to the Certificate Continuing Tax Lien which read: "Corrected to Vol. 49 — Pg 459, 3/15/00, H. Wucik, Town Clerk." This correction referred to the deed recorded on August 2, 1968 that conveyed the Pierce Road property to James O. Darnell, Sr. and Jane A. Darnell.
I DISCUSSION
Practice Book § 17-49 "provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . To succeed on a motion for summary judgment, [t]he movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791, 849 A.2d 839 (2004).
The plaintiff moves for summary judgment on the grounds that the defendant town of Preston filed a defective tax lien because, (1) it failed to contain an adequate description of the real property subject to the tax lien; and (2) the lien was not timely filed on the Preston land records. In opposition, the defendant argues that any irregularities or omissions in the tax lien are validated pursuant to Special Acts 1991, No. 91-1, § 1(d)(7), and that General Statutes § 12-173(b) provides for a valid notice of a timely filed tax lien, notwithstanding any irregularities, errors or omissions in the certificate. Finally, the defendant argues that the tax lien was validly and timely filed and recorded on July 1, 1990 in volume 4, page 187, and that the volumes entitled "Tax Liens and Releases" are part of the "Preston Land Records" and are proper books in which tax liens may be recorded.
There have been subsequent validating acts instituted by the legislature that have affected the statutes governing acts and deeds: Special Acts 1997, No. 97-6; Special Acts 1999, No. 99-7.
A Tax Lien: Adequate Description of Real Property
The plaintiff argues, in his memorandum of law in support of his motion for summary judgment, that when a municipality files a continuing certificate of tax lien, the certificate of tax lien, pursuant to § 12-175, must contain information required by § 12-173. As to the description of the real property encumbered by the tax lien, the plaintiff asserts that the tax lien fails for two reasons. First, the tax lien only names James Darnell, and not Jane Darnell, the co-owner of the property encumbered, nor does the tax lien indicate whether the co-owner is James Darnell, Sr., or James Darnell, Jr. Second, there is not an adequate description of the encumbered real property. The description of the real property, (before the March 15, 2000 correction), on the tax lien is simply "Vol. 77 pg. 167" which allegedly is not the proper description of a deed in the chain of title for 7 Pierce Road. As to the issue of whether only the name of James Darnell is sufficient on the tax lien, the defendant argues, in its memorandum of law in opposition to the motion, that under Special Acts 1991, No. 91-1, § 1(d)(7), the certificate continuing tax lien is validated despite the certificate's exclusion of the co-owner's name. As to the issue of whether Special Acts 1991, No. 91-1 validates the tax lien certificate despite the omission of a co-owner's name, this court agrees with defendant that the Special Act does validate the tax lien certificate despite the omission of the co-owner.
Special Acts 1991, No. 91-1, § 1(d)(7) entitled "An Act Validating Acts and Deeds, Valid Except for Certain Irregularities and Omissions," provides that "[n]o tax lien of which a certificate to continue has been recorded prior to the effective date of this act in accordance with the procedures and within the time provided by law in the book of tax liens in the office of the clerk of the town, city or borough in which the land upon which such lien is claimed is situated, shall be deemed invalid where: . . . (7) The property assessed for taxation was listed in the name of an agent or co-owner instead of the name of the owner or owners of the property according the land records of the town in which such property lies . . ." Section 9 states that "[n]o defects, omissions or irregularities enumerated in this act shall be validated if any action, suit or proceeding has been commenced, or notice of pendency thereof has been duly recorded on or before the effective date of this act." Section 10 states that "[t]his act shall take effect from its passage and shall apply to any defect, omission or irregularity enumerated in this act which occurred on or before January 1, 1991."
"By validating acts, the legislature can cure by a subsequent amendment, the failure to follow a statutory requirement, and a validating act can be applied retroactively to pending cases." Columbia Federal Savings Bank v. International Site Consultants, Inc., Superior Court, judicial district of Danbury, Docket No. 300606 (May 13, 1992, Fuller, J.) ( 6 Conn. L. Rptr. 844); see also Kelly v. Planning Zoning Commission, 13 Conn.App. 446, 447-48, 537 A.2d 509 (1988). This action was commenced on August 22, 2001, well after the effective date of January 1, 1991. The tax lien, regardless of which date it was recorded on in July of 1990, was controlled by Special Acts 1991, No. 91-1, § 1(d)(7) and therefore, any defects, omissions or irregularities that occurred on or before January 1, 1991 did not invalidate the tax lien. The defendant's usage of the name James Darnell, though omitting any indication between "senior" or "junior," and the defendant's alleged failure to include Jane Darnell, co-owner of the real property, does not, pursuant to § 1(d)(7) of the Special Act, render the tax lien invalid for these defects and omissions. As such, the court finds that the exclusion of co-owner's name on the lien, and the omission of the "senior" or "junior" indicator for James Darnell, does not invalidate the tax lien. Therefore, the plaintiff's motion for summary judgment cannot be granted on the basis of those omissions.
The more substantial argument presented by the plaintiff in support for his motion for summary judgment is that there is not an adequate description of the real property inscribed upon the tax lien certificate. The description that is inscribed (before the March 15, 2000 correction) is simply "Vol. 77 pg. 167" which apparently was meant to indicate the page in the Preston land records where the deed to the encumbered real property is recorded. This description, however, does not correspond to the deed or land description of 7 Pierce Road, and in fact, as defendant concedes in its memorandum of law that volume 77, page 167 referenced on the tax lien certificates submitted by the parties, has nothing to do with the property owned by James Darnell. Therefore, the description, "Vol. 77 pg. 167" does not refer to any deed in the chain of title to the property at 7 Pierce Road. The plaintiff, in his memorandum of law, states that the description "Vol. 77 pg. 167" was intended to be the description to a land deed at "Vol. 77 pg. 617." The deed at Volume 77, page 617 of the Preston land records refers to the land conveyance from James O. Darnell, Sr. and Jane Darnell to James O. Darnell, Jr. and Doreen Darnell, in which the conveyed parcel, allegedly, became known as 9 Pierce Road. The plaintiff, however, argues that the inverted page numbers, from "617" to "167," is insufficient to put a subsequent purchaser on notice as to what real property is encumbered by the tax lien. This court agrees with the plaintiff.
Section 12-173 provides in relevant part: "(a) The collector of each municipality, by pursuing the method authorized by . . . [General Statutes] 12-175, may continue any tax lien existing against any item of real estate to secure the payment of the tax assessed by such municipality thereon or of any obligation to make a payment in lieu of any such tax, as defined in section 12-171, as such tax has been increased by legal interest, fees and charges, by making out and filing, within the time limited by section . . . 12-175, in the office of the town clerk of the town wherein such real estate is situated, a certificate containing the following information: (1) The name of the person against whom such tax appears in the rate bill; (2) a description of such real estate; (3) the principal of such tax due thereon, the amount of which, with interest, if any, and fees and other charges, is secured by such lien; (4) the date or dates when the principal of such tax became due . . . The town clerk shall record such certificate in the land records. Any tax lien so continued, when the tax has been paid with interest, fees and charges as provided by law, shall be discharged by a certificate of the then collector of taxes. Such certificate of release shall be delivered by such collector to the town clerk, who shall record it in the land records. "(b) A certificate continuing a tax lien under this section, filed in a timely manner, provides valid notice of the continuance of the lien to a subsequent purchaser or encumbrancer if the recorded certificate is sufficient to place a subsequent purchaser or encumbrancer on notice of the existence and extent of that lien, notwithstanding any error, irregularity or omission in that certificate. A certificate that erroneously states the amount due provides valid notice to a subsequent purchaser or encumbrancer up to the amount stated or the amount actually due, whichever is less." General Statutes § 12-173.
In Liberty Mutual Life Insurance Co. v. Tucker, 11 Conn.App. 308, 527 A.2d 707 (1987), the city of Hartford, one of the named defendants, appealed a trial court decision, holding that a municipal tax lien filed upon insurance proceeds to be issued to the insured was invalid. The city of Hartford claimed, inter alia, that the municipal tax lien complied with relevant statutes, and that the city's certificate continuing the lien gave fair and legal notice. The Appellate Court set out the foundational principles in considering statutes related to taxes. The court stated that "[s]tatutes related to taxation must be strictly construed . . . Any ambiguity in a tax related statute must be construed in favor of the taxpayer." Id., 312-13. "A statute must not be construed so as to thwart its purpose . . . A statute must be construed to give effect to the legislative purpose in enacting it . . . The purpose of requiring a tax continuation certificate is to give notice of existing tax liens." Id., 314. The court held, inter alia, that because the city had failed to designate amounts owed and dates due, "and instead requir[ed] an insurance company to conduct its own investigation of municipal tax records, the entire intent behind the statutory scheme [was] defeated. The strict requirements were enacted to put all interested parties on constructive notice that certain sums were owed . . . [T]herefore, . . . the city's certificate was not constructive notice as required by the statute." Id., 314.
This holding was handed down before the implementation of the most recent validating acts, and it is likely the court would have taken a relevant validating act into consideration. Nevertheless, this fact does not lessen the impact of the holding and the foundational principles set forth by the court in Liberty Mutual Life Insurance Co. v. Tucker. The subsequent validating acts have been explicitly specific as to what omissions, irregularities and errors within a tax lien certificate may withstand a challenge to the tax lien's validity, and therefore do not diminish the court's general holding that statutes relating to taxation must be strictly construed, and that the strict requirements of these statutes were enacted to put all interested parties on constructive notice.
In Redding v. Elfire, LLC, 74 Conn.App. 491, 812 A.2d 211 (2003), a foreclosure matter, the defendant, Elfire, appealed a trial court's decision granting a summary judgment motion for the plaintiff, the town of Redding. The defendant argued, inter alia, that the plaintiff's fourth amended complaint "failed to rectify the factual discrepancy concerning the description of the property and, in fact, made matters worse by purporting to foreclose on property the description of which is at variance with the description in the certificates of tax lien." Id., 495. The court found that granting the town's summary judgment motion was improper because the defendant had submitted ample evidence "that supports its contention that the description of the property being foreclosed . . . is at variance with that of the property that actually was liened by the plaintiff, as described in the certificate of tax lien." Id., 496. The court concluded that the evidence presented demonstrated that there was a genuine issue of material fact as to the proper description of the property that is the subject of the foreclosure, and therefore the plaintiff's summary judgment motion was improperly granted. Moreover, the court stated that if it were "to affirm the judgment, we would be . . . permitting an incorrect description of the subject property to be placed in the land records. That likely would mislead title searchers and create title problems. Despite the plaintiff's urging, we decline to compromise the sanctity of title by clouding the marketable title of the property in that manner . . . [The] policy of this state [is] that purchasers of interests in real estate are entitled to rely upon the land records as disclosing the true title." Id., 497 n. 6.
In the present case, there is no genuine issue of material fact as to whether the property description inscribed upon the tax liens presented by the parties in their exhibits is incorrect. In fact, the defendant, the non-movant, acknowledges in its memorandum of law in opposition, that "a title searcher doing the search on this property would have found that the document located in Volume 77, page 167 and referenced in both the tax liens had nothing to do with James Darnell, and this alone would have put them on notice to check further." Consequently, there is no question that the property description was erroneous and did not refer to any property deed or title in connection with the property at issue in the present case. The defendant would have this court contradict the rationale presented in Liberty Mutual Life Insurance Co. v. Tucker and Redding v. Elfire, LLC, that the purpose of a tax lien certificate is to give notice that a tax lien exists against a particular parcel of land, and that the "sanctity of title" shall not be compromised by mistakes or variances in the property descriptions on a tax lien certificate.
The plaintiff submits to evidence a tax lien certificate dated July 1, 1990 and recorded on July 5, 1990 in Volume 93, page 672 of the Preston land records. The defendant submits to evidence a tax lien certificate dated July 1, 1990 and recorded on July 1, 1990 in Volume 4, page 187 of a book entitled "Preston Land Records: Tax Liens and Releases."
The Appellate Court in Redding v. Elfire, LLC, reversed the trial court's granting of a summary judgment motion because of a variance in the property description of a tax lien. The court concluded that the variance created a genuine issue of material fact in the context of the foreclosure plaintiff's motion for summary judgment against the landowner. The court's reasoning, nevertheless, fits comfortably upon the facts established in the present case. That is, in the present case, there is no genuine issue of material fact as to the defects in the tax certificate, and the landowner is therefore entitled to summary judgment on its quiet title complaint.
The defendant further argues in its memorandum of law that the plaintiff should have inquired further with the town clerk, once the discrepancy in the certificate was discovered, to determine whether there were taxes due upon the property. The defendant argues that attorney Kaplan's affidavit, which indicates that his firm, who represented the plaintiff in the land transaction, contacted the tax collector's office to inquire about the tax encumbrances on the property at issue, was not based on Kaplan's personal knowledge, but upon speculation of his office's routine. The plaintiff has, however, provided an additional affidavit from Kaplan stating that his law firm did submit a request to the office of the Preston tax collector to provide it with the amount of unpaid taxes for the real property at issue. The plaintiff also provides exhibits of documents that establish that the office of the Preston tax collector submitted to Kaplan's law firm the amount of taxes due on the property known as 7 Pierce Road, Preston, Connecticut. One document issued by the office of the tax collector states, "our records indicate as of 12/13/95 an unpaid balance on the following tax grand list . . ." The document states that for the tax grand lists bill numbers 9210000460, 9310000453 and 9410000452, the total tax sum due was $4,073.89. At the closing of the land sale, the plaintiff relied upon the tax accounting provided by the tax collector's office and paid the taxes to the Preston tax collector out of the proceeds of the sale, as is evidenced on line 1303 in the HUD-1 settlement statement submitted to the court as Exhibit H-2. The amount inscribed on line 1303 is $4,073.89. What is compelling about the above-described facts is that the Preston tax collector's office itself did not locate or indicate that there was a tax lien certificate or tax encumbrance originating from the 1988 grand list that would affect the property at issue in the present case. The court concludes that under these circumstances, in which a subsequent purchaser performed a title search relying on an erroneous property description, and in conjunction with that title search, he requested from the tax collector's office an accounting of the tax encumbrances for the property at issue and was provided with a document indicating that there are no tax encumbrances originating from the 1988 grand list, the tax certificate was not "sufficient to place a subsequent purchaser or encumbrancer on notice of the existence and extent of that lien, notwithstanding any error, irregularity or omission in that certificate" as required by § 12-173(b). To find that there was sufficient constructive notice under these circumstance would be to undermine the legislative intent of requiring notice of existing tax liens upon real property, and to disregard the admonition of the Appellate Court in Mutual Life Insurance Co. v. Tucker that strict statutory requirements were enacted to provide constructive notice to all interested parties that certain encumbrances were owed upon real property.
This court is disinclined to depart from the aptly expressed precedent provided in Redding v. Elfire, LLC and Mutual Life Insurance Co. v. Tucker. Therefore, as to whether there was an adequate property description on the tax lien certificate, the court finds no genuine issue of material fact as to the description being incorrect, and the plaintiff is entitled to a judgment as a matter of law. Accordingly, the plaintiff's motion for summary judgment is granted.
B Timely Filing of Tax Certificate Under § 12-175
The plaintiff also moves for summary judgment on the ground that the tax lien certificate was not timely filed pursuant to § 12-175. The plaintiff contends that the defendant did not record the tax lien until July 5, 1990, four days beyond the time within which to file a tax lien certificate pursuant to § 12-175. The plaintiff acknowledges that the defendant filed and recorded a tax lien certificate on July 1, 1990 in a separate series of land records kept by the Preston town clerk, but argues that there is no statutory authority for the town clerk to maintain these separate volumes of books. The defendant argues in response that §§ 12-173 and 12-175 simply require that the tax lien certificates be filed in the office of the town clerk where the real property is located. In addition, the defendant contends that § 7-24(b) merely requires that there be proper "books" kept by the municipality. The defendant has submitted a tax lien certificate (defendant's exhibit #3) dated and recorded on July 1, 1990, in Volume 4, page 187 of the "Preston Land Records: Tax Liens and Releases." The defendant argues that this tax lien certificate, which is presumably the certificate referred to by the plaintiff as being filed in separate unauthorized books, was timely filed within the time allowed by § 12-175. This court agrees with the defendant, as to the limited issue, that the tax lien certificate found in Volume 4, page 187 of the "Preston Land Records: Tax Liens and Releases" was timely filed in the land records.
In 1990, Section § 12-175 provided in relevant part: "[T]he tax collector of any municipality may continue any tax lien upon any item of real estate by making out a certificate containing the information required by the provisions of section 12-173. Each certificate authorized by the provisions of this section shall be filed in the office of the town clerk of the town in which such real estate is situated within the first year after the first installment of the tax, or the whole tax in case installment payments are not authorized, has become due, and the town clerk shall record such certificate in the land records of such town . . ."
At the time the tax lien certificate was recorded, § 12-175 provided for a one-year limit to file a tax lien certificate after the first installment of the tax. Therefore, in light of the facts provided by the parties, it is noted that July 1, 1990, would have been the last possible date for a timely tax lien certificate to be filed. Public Acts 1997, No. 97-91, changed the time period for filing a tax lien certificate from one year to two years after the first installment of the tax.
Section 7-24(b) provides that "[t]here shall be kept in each town proper books, or in lieu thereof a recording system approved by the Public Records Administrator, in which all instruments required by law to be recorded shall be recorded at length by the town clerk within thirty days from the time they are left for record."
Pursuant to the plain language of §§ 12-175 and 7-24(b), this court finds that the tax lien dated July 1, 1990 and recorded on July 1, 1990 in Volume 4, page 187 and entitled, "Preston Land Records: Tax Liens and Releases" was timely filed. There is no explicit requirement in §§ 12-173 and 12-175 that a town clerk must maintain tax lien certificates in a designated set of books. These sections simply require that the tax lien certificate be recorded in the land records of such town by the town clerk. Furthermore, the defendant's exhibit 4 clearly illustrates that Volume 4, which is entitled "Preston Land Records: Tax Liens and Releases," is part of the Preston land records, and therefore, falls within the recording requirements set forth in §§ 12-173 and 12-175. The tax lien certificate recorded in Volume 4, page 187 of the "Preston Land Records: Tax Liens and Releases," however, contains the same errors and omissions as those contained in the tax lien submitted by the plaintiff (plaintiff's exhibit C), and dated July 1, 1990, and recorded on July 5, 1990, in Volume 93, page 672 of the Preston land records, namely the omission of whether the tax lien certificate concerned James A. Darnell, Sr. or James A. Darnell, Jr. Certain errors and omissions, as discussed above, are validated pursuant to Special Acts 1991, No. 91-1, § 1(d)(7), and the said omission contained in the tax lien submitted by the defendant is validated.
This court therefore, by the evidence submitted by the parties, concludes that although there are no genuine issues of material fact regarding the dates on which the two deeds were filed and where they were filed, the plaintiff is not entitled to judgment as a matter of law based on the issue of timeliness. Although one of the deeds was not filed until July 5, 1990, the other deed was filed on July 1, 1990, in Volume 4 entitled "Preston Land Records: Tax Liens and Releases," which was a proper book in which the town clerk recorded the tax lien certificate. Consequently, the plaintiff is not entitled to summary judgment on the basis of the limited issue of whether the tax lien certificate was timely filed. It is noted, however, that the certificate filed on July 1, 1990, contained the same defect in the property description that was previously discussed with regard to the July 5, 1990 certificate. Accordingly, although the July 1, 1990 certificate was timely filed, the plaintiff is still entitled to summary judgment on the ground previously discussed.
C Municipal Estoppel
The plaintiff, in his secondary supplemental memorandum of law in support of his motion for summary judgment, also argues that it is entitled to summary judgment because the defendant is estopped from claiming that the tax lien is invalid. Specifically, the plaintiff claims that the defendant should be estopped because its agent, the town tax collector supplied the plaintiff with a tax accounting upon which he relied to his detriment. This court concludes that the plaintiff cannot prevail on a theory of estoppel because it has not been adequately pleaded.
"It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [its] complaint . . . However, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery . . . A corollary is that a party's right to recover is limited to the allegations averred in the applicable pleading." (Citations omitted; internal quotation marks omitted.) Covey v. Comen, 46 Conn.App. 46, 49-50, 698 A.2d 343 (1997). "A [party] may not allege one cause of action and recover on another. Facts found but not averred cannot be made the basis for a recovery." (Citation omitted; internal quotation marks omitted.) Id., 50.
In Tabora v. Amdour, Inc., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 00 0091875 (March, 25, 2002, Parker, J.), the plaintiff brought a claim against a corporation, inter alia, for a breach of an employment contract. However, the plaintiff nowhere in his complaint raised the issue of promissory estoppel. In response to the defendant's motion for summary judgment, the plaintiff submitted a memorandum of law in opposition arguing, inter alia, that regardless of the merits of his breach of contract claim, his claim was nevertheless saved by the doctrine of promissory estoppel. The court held that "[i]n order to prevail on his promissory estoppel claim, [the] plaintiff had to plead promissory estoppel . . . [The] plaintiff's second amended complaint does not allege a claim for promissory estoppel . . . In response to the Second Amended Complaint, [the] defendant pleaded the statute of frauds . . . Thereafter, [the] plaintiff filed a Reply. Regarding the statute of frauds affirmative defense, [the] plaintiff simply denied it . . . [The] plaintiff could have pleaded the facts upon which any claim for promissory estoppel was predicated. This could have been done in his reply. No allegations regarding promissory estoppel are contained in the reply. The entry of summary judgment, as is the entry of any judgment, is confined to the issues fairly raised in the pleadings. Promissory estoppel has not been raised in any pleading. Not having been raised in the pleadings, it cannot avail [the] plaintiff here." The court entered summary judgment for the defendant and against the plaintiff.
Furthermore, General Statutes § 47-31 requires a plaintiff in a quiet title action to state in the complaint "the plaintiff's claim, interest or title and the manner in which the plaintiff acquired the claim, interest or title . . ." (Emphasis added.) In the present case, the plaintiff argues, in his second supplemental memorandum of law in support of his motion for summary judgment, that under the doctrine of municipal estoppel, the town of Preston should be estopped from collecting the property tax at issue. The plaintiff, however, has not pleaded facts that would support a theory that he has title to the subject property free of any tax liens as the result of estoppel. On the contrary, he alleges in the complaint that he acquired his title to the property by way of a deed. The alternative theory that the plaintiff now advances is essentially that even if the defendant did have a valid tax lien on his property at one time, the property is no longer encumbered by that lien because of the operation of the doctrine of estoppel. That theory is simply not set forth in the plaintiff's complaint. Therefore, because the plaintiff's pleadings are devoid of sufficient facts and allegations that would support a claim of municipal estoppel, and in light of the fundamental law set out in Covey v. Comen, and the rationale and holding of Tabora v. Amdour, this court concludes that the plaintiff may not now bring a claim for municipal estoppel in their secondary supplemental memorandum of law in support of their summary judgment motion without first supplying sufficient facts and allegations in his pleadings. Nevertheless, as previously stated, the plaintiff is entitled to summary judgment on other grounds.
CONCLUSION
For all the forgoing reasons, the plaintiff's motion for summary judgment is hereby granted.
D. Michael Hurley, JTR