Opinion
CV155016831S
01-31-2018
Stephen C. MCCULLOUGH v. TOWN OF ROCKY HILL
UNPUBLISHED OPINION
OPINION
PETER EMMETT WIESE, JUDGE
I
PROCEDURAL HISTORY
On September 11, 2015, the plaintiff, Stephen C. McCullough, filed his writ, summons and complaint against the defendant, the Town of Rocky Hill (town). On July 18, 2016, the plaintiff filed a twelve-count amended complaint against the defendant, asserting claims for abuse of process and various intentional torts. On August 17, 2016, the defendant filed a motion to strike all counts in the amended complaint on the grounds that the abuse of process claims were legally insufficient and the intentional torts were barred by governmental immunity. By a decision dated January 24, 2017, the court, Wiese, J., granted the motion to strike counts two through twelve. With regards to count one, the motion to strike was denied as to the abuse of process claim, but was granted as to the claim of selective enforcement of laws also alleged in count one.
On April 24, 2017, the plaintiff filed a twelve-count substituted complaint against the defendant, which re-alleged most of the counts previously stricken by the court. This court articulated the factual allegations underlying the plaintiff’s claims against the defendant in a previous memorandum of decision (Docket No. 123) that addressed the defendant’s motion to strike and does not restate them here. Additional facts will be set forth later in this memorandum as necessary. Count one alleges abuse of process and count two alleges intentional infliction of emotional distress. Count three still asserts a claim for invasion of privacy, but now also contains a single allegation that it was an illegal search in violation of article first, § 7 of the Connecticut constitution and the fourth amendment to the United States constitution. Count four was previously titled " Intentional Tort," but is now titled " Abuse of Process." Count five was previously entitled " Trespass," it is now entitled " Inverse Condemnation." Count six and count seven continue to allege trespass and trespass to chattels, respectively; however count seven now includes an allegation of an illegal search and seizure. Count eight is entitled abuse of process. Count nine alleges intentional infliction of emotional distress. Count ten is entitled " Fraud by Non-Disclosure." Count eleven is now entitled " Municipal Ordinance in violation of the Thirteenth Amendment," rather than " Abuse of Process." Finally, count twelve, which previously alleged trespass, is now entitled Illegal Search.
In contrast to counts three and seven, the bodies of counts four and ten contain no references to constitutional rights or any allegations that any such right was violated as a result of the conduct alleged. Rather, the only reference to violations of constitutional rights is in the labels given these counts by the plaintiff. Construction of pleadings is a question of law for the court and the court is not required to accept the label affixed to allegations by the plaintiff. See Home Oil Co. v. Todd, 195 Conn. 333, 340, 487 A.2d 1095 (1985) (" [w]hen a case requires [the] court to determine the nature of a pleading filed by a party, [the court is] not required to accept the label affixed to that pleading by the party" ); see also Desmond v. Yale-New Haven Hospital, Inc., 138 Conn.App. 93, 100-01, 50 A.3d 910 (2012) (" we construe counts one and two of the complaint, despite their labels to the contrary; ... to allege only that the defendants delayed in bad faith the workers’ compensation claims of the plaintiff" [citation omitted] ). When considered without the affixed labels, counts four and ten, no matter how broadly construed, cannot be said to allege anything more than common-law claims of abuse of process and fraud. See Grenier v. Commissioner of Transportation, 306 Conn. 523, 536, 51 A.3d 367 (2012) (noting that a pleading " must not be contorted in such a way so as to strain the bounds of rational comprehension" [internal quotation marks omitted] ). Therefore, contrary to the affixed labels, the court construes count four as asserting a claim for abuse of process based on the increase in the assessed value of his property, and count ten as asserting a claim for fraud by nondisclosure based on misrepresentations made by town officials.
The defendant filed a motion for summary judgment as to the entire substituted complaint on June 21, 2017. The plaintiff filed a memorandum in opposition to the motion and an affidavit on September 25, 2017. On October 11, 2017, the plaintiff filed a supplemental memorandum in opposition to the motion and a second affidavit. The parties appeared and argued the motion and opposition at short calendar on October 16, 2017.
II
APPLICABLE LAW
A. Standard of Review
" [S]ummary 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." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" Once the moving party has met its burden ... the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
" In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact ... but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011). Additionally, " the court’s role is not to weigh the credibility of the parties, which falls within the province of the finder of fact ... When a court, in ruling on a motion for summary judgment, is confronted with conflicting facts, resolution and interpretation of which would require determinations of credibility, summary judgment is not appropriate." (Citation omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 710, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).
B. Governmental Immunity
Subdivision (2) of § 52-557n(a) provides in relevant part: " Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, actual malice or wilful misconduct ..." General Statutes § 52-557n(a)(2)(A).
Under our law, there is no distinction between " intentional" and " wilful" ; see O’Connor v. Board of Education, 90 Conn.App. 59, 65, 877 A.2d 860 (2005); accordingly, claims asserting an intentional tort are barred by governmental immunity as a matter of law. See id., 65-66; see also Pane v. Danbury, 267 Conn. 669, 685, 841 A.2d 684 (2004), overruled on other grounds by Grady v. Somers, 294 Conn. 324, 330, 984 A.2d 684 (2009); Martin v. Westport, 108 Conn.App. 710, 729-30, 950 A.2d 19 (2008). This includes intentional infliction of emotional distress; Martin v. Westport, supra ; and invasion of privacy. O’Connor v. Board of Education, supra, 65 (finding that in asserting claim for invasion of privacy, plaintiff alleged violation of intentional tort, thus: " plaintiff’s allegations of invasion of privacy amount to ‘wilful misconduct’ under the statute and, therefore, § 52-557n(a)(2) provides defendant immunity" ).
C. Abuse of Process
" An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed ... Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process ... the gravamen of the action for abuse of process is the use of a legal process ... against another primarily to accomplish a purpose for which it is not designed ... [T]he addition of primarily is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." (Citations omitted; emphasis in original; internal quotation marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987). " The import from Mozzochi is that the relevant inquiry is whether the defendant used the judicial process for some ulterior motive unrelated to the action at hand, not whether the defendants’ methods to oppose were weakly supported or otherwise lacking in merit." Sacred Heart University v. Voll, Superior Court, judicial district of Fairfield, Docket No. CV- 15-6048244-S (April 25, 2016, Kamp, J.) (62 Conn.L.Rptr. 220, 224). " Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish." (Internal quotation marks omitted.) Lewis Truck & Trailer, Inc. v. Jandreau, 11 Conn.App. 168, 170-71, 526 A.2d 532 (1987).
In affirming the decision of the trial court striking the plaintiff’s abuse of process claim, our Supreme Court in Mozzochi discussed instances where an abuse of process claim might lie, listing as examples " [using] the pleadings or the process in the [underlying] case as leverage to coerce the plaintiff to pay a debt or surrender property unrelated to that litigation," or " [using] unreasonable force, excessive attachments or extortionate methods ..." (Emphasis added.) Mozzochi v. Beck, supra, 204 Conn. 493. An excessive attachment was at issue in Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn.App. 541, 544, 905 A.2d 1214 (2006). In that case, the Appellate Court affirmed the judgment of the trial court, which found that the defendants had engaged in an abuse of process: " The court concluded that the defendants had engaged in an abuse of process by improperly obtaining the execution in an excessive amount and primarily for the inappropriate purpose of securing moneys in which their clients had no known or established right or interest. According to the court, the execution was intended to prevent the lender liability settlement funds from disappearing while an active dispute about their ownership was being litigated in [a] declaratory judgment action." Id., 563.
D. State Constitutional Claims
Although our courts have allowed a private cause of action for money damages against state officers; Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998); this recognition was limited. Moreover, where allowed, the actions have been against individual agents or officers, not state agencies. This has been extended to municipalities and thus, damages claims based on violations of the Connecticut constitution cannot be maintained directly against a municipal entity. See Alvarez v. Bloomfield Board of Education, Superior Court, judicial district of Hartford, Docket No. CV-14-6054235-S (November 1, 2015, Elgo, J.) (61 Conn.L.Rptr. 233, 234).
In Alvarez, the court discussed the United States Supreme Court case which recognized a cause of action for damages against federal agents and the Connecticut Supreme Court case recognizing a similar action against state agents:
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the United States Supreme Court created an implied cause of action for damages against individual federal agents for violations of a right secured under the fourth amendment to the United States Constitution. Id., 397. Relying on Bivens, our Supreme Court in Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998), similarly recognized a private damages claim against state police officers for violations of rights guaranteed under article first, § § 7 and 9, of the Connecticut constitution. Id., 41.
Both Bivens and Binette, however, implied causes of action for damages against individual officers. With respect to federal governmental agencies, the United States Supreme Court has definitively held that the Bivens remedy does not extend to damages claims against federal agencies. In Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), the court rejected the proposition that " the category of defendants against whom Bivens -type actions may be brought [should] include not only federal agents, but federal agencies as well." (Emphasis in original.) Id., 484. Rejecting the argument that the " logic" of Bivens applies equally to claims against agencies, the court observed that " we implied a cause of action against federal officials in Bivens in part because a direct action against the Government was not available ... In essence, [the plaintiff] asks us to imply a damages action based on a decision that presumed the absence of that very action." ... The court reaffirmed this limitation in Correctional Services Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001), which held that actions under Bivens are available only against individuals and not corporate entities acting under color of federal law. Id., 74.(Citations omitted; emphasis in original; internal quotation marks omitted.) Alvarez v. Bloomfield Board of Education, supra, 61 Conn.L.Rptr. 234.
Our Appellate Courts have not considered whether an identical limitation applies to Bivens -type actions under the Connecticut constitution, however, numerous Superior Courts, relying on Federal Deposit Ins. Corp., have held that damages claims based on violations of the Connecticut constitution cannot be maintained against a municipal entity. See e.g., Alvarez v. Bloomfield Board of Education, supra, 61 Conn.L.Rptr. 233 (" this court is persuaded by numerous superior court authority which has held that the rationale precluding actions against federal and state agencies applies equally as well to municipal agencies" ); Aselton v. East Hartford, Superior Court, judicial district of Tolland, Complex Litigation Docket, Docket No. X07-CV-01-0079187-S (December 3, 2002, Sferrazza, J.) (" [a]pplying the limitations pertaining to Bivens actions as announced by the Supreme Court, no Bivens action can be maintained directly against the town of East Hartford for any violations of the state constitution" ).
Although our Supreme Court in Binette v. Sabo, supra, 244 Conn. 41, recognized a private cause of action for money damages for violations of article first, § § 7 and 9 of the Connecticut constitution, it " did not purport to announce an overarching universal principle ... It cautioned that the availability of access to a separate tort action under Binette should be analyzed on a case-by-case basis only." Martin v. Brady, 64 Conn.App. 433, 439, 780 A.2d 961 (2001), aff’d, 261 Conn. 372, 802 A.2d 814 (2002). Similarly, our courts have rejected a private cause of action under article first, § 8 of the Connecticut constitution. See ATC Partnership v. Windham, 251 Conn. 597, 612-17, 741 A.2d 305 (1999), cert. denied, 530 U.S. 1214, 120 S.Ct. 2217, 147 L.Ed.2d 249 (2009); Fago v. Devin, Superior Court, judicial district of Hartford, Docket No. CV-14-6053659-S (July 31, 2015, Wiese, J.); see also Ward v. Housatonic Area Regional Transit Dist., 154 F.Supp.2d 339, 356 (D.Conn. 2001) (holding that there is " no private cause of action for monetary damages under the equal protection and due process provisions [Art. First, § § 1, 8, and 20] of the Connecticut constitution" ).
" A municipality or other local government may be held liable under [§ 1983] if the governmental body itself subjects a person to a deprivation of rights or causes a person to be subjected to such deprivation ... But, under § 1983, local governments are responsible only for their own illegal acts ... They are not vicariously liable under § 1983 for their employees’ actions ... Plaintiffs who seek to impose liability on local governments under § 1983 must prove that action pursuant to official municipal policy caused their injury ... " [I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the moving force behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights ... [W]here the policy relied upon is not itself unconstitutional, considerably more proof than [a] single incident [of unconstitutional activity] will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the policy and the constitutional deprivation." (Citations omitted; internal quotation marks omitted.) Edgewood Street Garden Apartments, LLC v. Hartford, 163 Conn.App. 219, 231-32, 135 A.3d 54 (2016).
F. Equal Protection
" Mere laxity in the administration of the law, no matter how long continued, is not and cannot be held to be a denial of the equal protection of the law. To establish arbitrary discrimination inimical to constitutional equality, there must be something more, something which in effect amounts to an intentional violation of the essential principle of practical uniformity ... For the plaintiffs to prevail, they must show a pattern of discrimination consciously practiced." (Citations omitted; internal quotation marks omitted.) Bianco v. Darien, 157 Conn. 548, 559-60, 254 A.2d 898 (1969).
" [T]he analytical predicate [of an equal protection claim] is a determination of who are the persons ... similarly situated ... [T]he requirement imposed [on] [p]laintiffs claiming an equal protection violation [is that they] identify and relate specific instances [in which] persons situated similarly in all relevant aspects were treated differently ...
" Class of one plaintiffs, however, must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves ... This is because the existence of persons in similar circumstances who received more favorable treatment than the plaintiff in a class-of-one case is offered to provide an inference that the plaintiff was intentionally singled out for reasons that so lack any reasonable nexus with a legitimate governmental policy that an improper purpose- whether personal or otherwise- is all but certain ... Accordingly, to succeed on a class-of-one claim, a plaintiff must establish that (i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate governmental policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 219-20, 9 A.3d 247 (2010).
III
DISCUSSION
A. Count One- Abuse of Process
The defendant moves for summary judgment as count one on the ground that there is no genuine issue of material fact that the foreclosure action was not used for an improper purpose. In count one the plaintiff alleges that the defendant engaged in abuse of process by using the foreclosure action to offset damages it owed the plaintiff and to circumvent the town’s anti-blight ordinances.
An abuse of process claim arises when the legal process, in this case the foreclosure proceeding, is used primarily for an improper purpose. Mozzochi v. Beck, supra, 204 Conn. 494. When the legal process is used primarily for the purpose in which it was intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant, then there is no abuse of process. Id. ; see 3 Restatement (Second), Torts § 682, comment (b) p. 475 (1977). The institution of foreclosure proceedings against a delinquent tax payer to enforce tax liens is proper and used for the purpose for which it was intended: collecting delinquent taxes owed on the plaintiff’s property. See General Statutes § § 12-172 & 12-181. That the town and its officials may have sought to acquire the property because of their dislike for the plaintiff, because they hoped to remedy blight issues without imposing citations under the anti-blight ordinances or remedying the conditions and then seeking reimbursement; see General Statutes § 49-73b; or hoped to derive the benefit of reducing any damages owed the plaintiff is of no import. The justified foreclosure action does not become an abuse of process because of the foregoing. Mozzochi v. Beck, supra, 204 Conn. 494; see also 3 Restatement (Second), supra, § 682, comment (b). Therefore, the plaintiff’s allegations, even if true, do not amount to an abuse of process.
Comment b of § 682 of the Restatement (Second) of Torts provides: " The significance of [the] word [primarily] is that there is no action for abuse of process when the process is used for the purpose for which it was intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant. Thus the entirely justified prosecution of another on a criminal charge, does not become abuse of process merely because the instigator dislikes the accused and enjoys doing him harm; nor does the instigation of justified bankruptcy proceedings become abuse of process merely because the instigator hopes to derive benefit from the closing down of the business of a competitor." (Internal quotation marks omitted.) 3 Restatement (Second), Torts § 682. Comment (b) p. 475 (1977).
General Statutes § 12-172 provides in relevant part: " The interest of each person in each item of real estate, which has been legally set in his assessment list, shall be subject to a lien for that part of his taxes laid upon the valuation of such interest ... Such lien, during its existence, may be enforced by levy and sale of such real estate ..."
General Statutes § 12-181 provides in relevant part: " The tax collector of any municipality may bring suit for the foreclosure of tax liens in the name of the municipality by which the tax was laid ..."
General Statutes § 49-73b provides in relevant part: " (a) Any municipality that has incurred expenses for the inspection, repair, demolition, maintenance, removal or other disposition of any real estate in order to secure such real estate, to remedy a blighted condition on such real estate or to make it safe and sanitary under any provision of the general statutes or any municipal building, health, housing or safety codes or regulations shall have the right to recover such expenses from the owner of the real estate for which such expenses were incurred."
Moreover, even if the defendant had pursued the plaintiff’s property pursuant to the blight ordinances, it could have sought the same outcome; acquisition of the property, through the same process: foreclosure. Unpaid fines imposed by a municipality pursuant to its ordinance regulating blight constitutes a lien against the property and can be enforced in the same manner as property tax liens. General Statutes § 7-148aa. Similarly, expenses incurred by a municipality pursuant to § 49-73b(a) also constitute a lien; General Statutes § 49-73b(b); and this municipal lien can be foreclosed in the same manner as a mortgage. General Statutes § 49-73b(d). This collective statutory authority demonstrates that the foreclosure process is also designed for issues of blight; wherein a municipality can pursue a blighted property through foreclosure where there are unpaid fines or the town has incurred expenses remedying the blighted condition. Accordingly, there is no genuine issue of material fact that the foreclosure proceeding was not used for an improper purpose. To that end, the court grants the defendant’s motion for summary judgment as to the abuse of process claim in count one.
B. Count One- Equal Protection
In addition to the claim for abuse of process, the plaintiff also alleges in count one that enforcing the tax lien through the foreclosure action violated his rights to equal protection and more specifically, that he was selectively enforced as a " class of one." The defendant argues that the plaintiff has failed to establish an essential predicate of his equal protection claim and the record demonstrates that there is no genuine issue of fact that he was not intentionally singled out.
Demonstrating the persons who were similarly situated is an essential predicate to the plaintiff’s equal protection claim. As the plaintiff is arguing that he was selectively singled out, he must show " an extremely high degree of similarity" ; Brooks v. Sweeney, supra, 219; between himself and the other taxpayers he contends were treated differently. The plaintiff’s allegations and the record presented do not rise to this level and do not demonstrate that the other taxpayers were " situated similarly in all relevant aspects ..." (Emphasis in original; internal quotation marks omitted.) Id.
The plaintiff alleges that there were at least thirty-two other properties who had more than three years of liens and for larger amounts but were not foreclosed on. Instead they received letters from the town attorney which he did not receive. He additionally alleges that his was the only foreclosure brought by the town in nine years. These allegations lack the specificity required for a class of one equal protection claim. In addition, there is nothing in the record before the court regarding how many taxpayers in total are on the rolls of the town, how many were current, and how many were delinquent. The plaintiff merely alleges that the other property owners had liens for more than his lien of $4,642.24 but alleges no facts to support this, such as the actual amounts of the other tax liens. Similarly, there is nothing in the record before the court regarding whether the other property owners with liens were actively paying their taxes, including any taxes still owed. Finally, in his objection to the defendant’s motion for summary judgment the plaintiff argues that the fact that there are no comparators to him is a " moot issue," because he was the only one selectively singled out. This assertion is completely incorrect as a matter of law, as the plaintiff must identify comparators to prove that he was singled out.
Along with the plaintiff’s failure to identify and relate specific instances where persons similarly situated were treated differently; see Brooks v. Sweeney, supra, 299 Conn. 219; the defendant points to the record, and specifically the plaintiff’s deposition testimony, in support of its contention that the evidence does not support an equal protection claim as a matter of law.
Specifically, the plaintiff testified that he believed the town manager, Barbara Gilbert, was behind everything; the tree cuttings, citations, and foreclosure, because she said the blight ordinance was hers. McCullough Dep., 49:22-50:7. Elaborating further regarding this contention, the plaintiff discussed a prior tax foreclosure brought by the town about seven years before his, and how he saw similarities between his case and that prior foreclosure, such as that the other person foreclosed on also had issues with blight but the town did not use the blight statutes when approaching him. McCullough Dep., 52:9-53:3. The record before the court demonstrates that the closest comparator the plaintiff is able to identify is the person who was foreclosed on about seven years before him. The plaintiff’s own testimony, however, is that he was treated similarly to that individual not differently, essentially extinguishing his equal protection claim.
Attached as exhibit B to the defendant’s motion for summary judgment is a copy of the transcript of the plaintiff’s deposition.
In this regard, the law is that " [o]nce the moving party has met its burden ... the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, supra, 317 Conn. 228. The plaintiff has failed to present evidence that would save his claim and demonstrate the existence of a disputed factual issue. In his objection to the motion for summary judgment, the plaintiff relies on the testimony of the town’s tax collector in the underlying foreclosure case, which was submitted by the defendant as an exhibit to its motion for summary judgment. The plaintiff argues that she testified that the last foreclosure was in 2007; Trial Tr., 24:5-25:5; and that the judicial branch website shows that there have been no other foreclosures, aside from the plaintiff’s since that time. The plaintiff also notes that she testified that there were some people who had not paid their taxes for more than ten years. Trial Tr., 43:16-43:21. This testimony further demonstrates the plaintiff’s failure to identify persons similarly situated, and to whom he can compare himself to determine if he was singled out. Further, this evidence at best indicates carelessness in the town’s enforcement of delinquent taxes, however, " [m]ere laxity in the administration of the law, no matter how long continued, is not and cannot be held to be a denial of the equal protection of the law." (Emphasis added; internal quotation marks omitted.) Bianco v. Darien, supra, 157 Conn. 559-60.
The remainder of the plaintiff’s objection is conclusory assertions and opinions, which are insufficient to demonstrate the existence of a disputed issue of fact. See Citimortgage, Inc. v. Coolbeth, 147 Conn.App. 183, 193, 81 A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014) (" [m]ere statements of legal conclusions ... and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment" [internal quotation marks omitted] ).
" [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ... [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). Viewing the record before the court in a light most favorable to the plaintiff, it is clear that the evidence could lead to only one conclusion: that the plaintiff does not have a viable equal protection claim as a matter of law. This evidence, if presented at trial, would require a directed verdict be entered in favor of the defendant because it fails to show the analytical predicate for a plaintiff claiming an equal protection violation: the persons who are similarly situated to the plaintiff. Brooks v. Sweeney, supra, 299 Conn. 219. Moreover, the evidence cannot reasonably be said to rise to the level required of a plaintiff claiming a class of one equal protection claim: " an extremely high degree of similarity between themselves and the persons to whom they compare themselves." (Internal quotation marks omitted.) Id.
Accordingly, the defendant’s motion for summary judgment as to the plaintiff’s equal protection claim in count one is granted.
C. Count Two- Intentional Infliction of Emotional Distress
The defendant moves for summary judgment as to count two on the ground of governmental immunity, as well as on the ground that the court has already held in its decision on the motion to strike that this claim is barred by governmental immunity and that is the law of the case. The plaintiff alleges a claim for intentional infliction of emotional distress in count two. Count two was stricken because the plaintiff cannot, as a matter of law, assert a claim for intentional infliction of emotional distress against a municipality. See General Statutes § 52-557n(a)(2)(A); Martin v. Westport, supra, 108 Conn.App. 729-30. That determination stands because it addressed a question of law; see Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 322, 63 A.3d 896 (2013); and the plaintiff is still barred by governmental immunity from asserting this claim against the defendant. The court therefore grants the defendant’s motion for summary judgment as to count two as it is barred by governmental immunity.
" The law of the case doctrine expresses the practice of judges generally to refuse to reopen what [already] has been decided ... New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ... [When] a matter has previously been ruled [on] interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Internal quotation marks omitted.) Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 322, 63 A.3d 896 (2013).
The plaintiff contends that intentional torts are not barred by governmental immunity because courts have ruled that there is an exception to immunity for acts involving malice, wantonness or intent to injure as well as an exception for the performance of a proprietary act. The first exception referenced by the plaintiff is inapplicable to his claims because he is asserting intentional torts not negligence. A municipality is not liable for the negligent acts or omissions which require the exercise of judgment or discretion. General Statutes § 52-557n(a)(2)(B). Liability is not precluded, however, where the alleged conduct involves malice, wantonness or intent to injure. St Pierre v. Plainfield, 326 Conn. 420, 434 n.13, A.3d (2017). As the plaintiff is not alleging that the defendant in the present case was negligent but, rather, acted intentionally and maliciously, he cannot avail himself of this exception. Similarly, the proprietary act exception to which he refers provides: " Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit." (Emphasis added.) General Statutes § 52-557n(a)(1)(B). Thus, this exception is similarly of no avail to the plaintiff.
D. Count Three- Invasion of Privacy, Illegal Search
The defendant also moves for summary judgment as to count three, alleging invasion of privacy, on the ground that it is barred by governmental immunity. Invasion of privacy is an intentional tort and barred by § 52-557n(a)(2)(A). See O’Connor v. Board of Education, supra, 90 Conn.App. 65. The plaintiff’s arguments regarding intentional torts are similarly unavailing as to count three. See fn. 8. Notably, count three now also alleges an illegal search in violation of article first, § 7 of the Connecticut constitution and the fourth amendment to the United States constitution.
To the extent that this single conclusory statement alleges a constitutional claim apart from this common-law invasion of privacy claim, it fails because there is no direct cause of action against a municipality under the state constitution and the § 1983 claim is time-barred. As previously discussed in part IID of this decision, numerous Superior Courts have held that damages claims based on violations of the Connecticut constitution cannot be maintained directly against a municipal entity relying on precedent of the United States Supreme Court precluding such actions against federal and state agencies. See Alvarez v. Bloomfield Board of Education, supra, 61 Conn.L.Rptr. 234. This court agrees with the logic and rationale of those Superior Court cases and particularly the decision in Alvarez. The plaintiff, thus, cannot assert a direct cause of action for a violation of article first, § 7 of the Connection constitution in count three.
The plaintiff alleges that on June 10, 2013, a Rocky Hill police officer was " prowling around" his backyard without permission and that this constituted an illegal search in violation of the fourth amendment to the United States constitution. The plaintiff had previously only alleged a common-law claim for invasion of privacy. This newly alleged fourth amendment claim is thus barred by the statute of limitations. Section 1983 claims are governed by the statute of limitations set forth in General Statutes § 52-577. See Lopes v. Farmer, 286 Conn. 384, 388-89, 944 A.2d 921 (2008) (" [i]n the case of an action for malicious prosecution brought pursuant to § 1983, the appropriate limit is the three year limitations period applicable to tort actions, set forth in § 52-577" ). Section 52-577 provides: " No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." The substitute complaint containing the claim of a fourth amendment violation was filed on April 24, 2017, nearly four years after the alleged incident and, therefore, is time-barred.
The court therefore grants the defendant’s motion for summary judgment as to the invasion of privacy claim as well the state and federal constitutional claims in count three.
E. Count Four- Abuse of Process
The defendant again moves for summary judgment on the ground of governmental immunity as to count four. Although count four is entitled " Abuse of Process," the underlying allegations are identical to those previously stricken, albeit with two new allegations regarding actions of town manager Barbara Gilbert. These allegations, however, are effectively irrelevant, as this claim continues to allege that the actions underlying it, the increase in the assessed value of the plaintiff’s property in order for the town to recoup legal fees expended in the foreclosure action, was done with malice and intent to injure. Municipalities are immune from liability for acts which constitute " actual malice" ; see General Statutes § 52-557n(a)(2)(A); and, therefore, this claim is barred by governmental immunity and the plaintiff’s contentions regarding intentional torts and immunity continue to be of no support. Summary judgment as to count four is therefore granted on the ground of governmental immunity.
F. Count Five- Inverse Condemnation
Count five, previously a claim for trespass, now asserts a claim for inverse condemnation and alleges violations of the fifth and fourteenth amendments to the United States constitution. Section 1983 claims are governed by the statute of limitations set forth in General Statutes § 52-577. See Lopes v. Farmer, 286 Conn. 384, 388-89, 944 A.2d 921 (2008) (" [i]n the case of an action for malicious prosecution brought pursuant to § 1983, the appropriate limit is the three year limitations period applicable to tort actions, set forth in § 52-577" ). Section 52-577 provides: " No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
The basis for the plaintiff’s inverse condemnation claim is the cutting and removal of trees, shrubs and branches from his property in 2012. He alleges that the removal of the shrubs and the cutting of the trees have caused substantial destruction to his ability to use and enjoy his property because the shrubs and trees previously provided privacy and there are tree stumps left behind. These actions took place over two days in August 2012 . The plaintiff alleged this present inverse condemnation claim on April 24, 2017, clearly more than three years from the date of the act complained of. The plaintiff contends that he has not pleaded any new claims in the substitute complaint; however, a common-law tort for trespass is vastly different from a constitutional claim for inverse condemnation. Although his trespass claim and inverse condemnation claim are based on the same factual allegations: the tree cuttings and removal of shrubs; the harms alleged are vastly different. In the first instance, the plaintiff is asserting that town officials and employees trespassed on his property and caused harm to his land whereas in the second instance, the plaintiff is asserting that the town violated his constitutional rights and damaged his property to such an extent that it is equivalent to an eminent domain proceeding; that his property was effectively confiscated because of its actions. The claim of inverse condemnation is thus newly raised. As this newly raised constitutional claim is time barred, the defendant’s motion for summary judgment as to count five is granted.
G. Count Six- Trespass
The defendant moves for summary judgment as to count six on the ground of the law of the case doctrine, in that the court has already held in its memorandum of decision on the motion to strike that intentional torts are barred by governmental immunity. Count six alleges trespass and was previously stricken because " [t]respass to land is, by definition, an intentional tort" ; Robert v. Scarlata, 96 Conn.App. 19, 23 n.1, 899 A.2d 666 (2006); and the Connecticut exemption for immunity for claims involving damage caused by the discharge of surface waters; Emerick v. Glastonbury, Superior Court, judicial district of Hartford, Docket No. CV-11-5034304-S (March 14, 2015, Wiese, J.); was inapplicable. This exemption remains inapplicable and, therefore, the court’s previous decision is the law of the case and the defendant’s motion for summary judgment as to count six is granted.
H. Count Seven- Trespass to Chattels, Illegal Search
The defendant moves for summary judgment as to count seven on the ground of the law of the case doctrine because the court struck this claim as barred by governmental immunity. The plaintiff alleges trespass to chattels in count seven by alleging that a town employee lifted and ripped his car’s cover and illegally obtained the car’s license plate number. Trespass to chattels is an intentional tort; see Simms v. Chaisson, 277 Conn. 319, 331, 890 A.2d 548 (2006) (trespass to chattels is " intentionally [a] dispossessing another of chattel, or [b] using or intermeddling with a chattel in the possession of another" ); and, therefore, is barred by § 52-557n(a)(2)(A). The plaintiff further alleges that the action of the employee in lifting the car cover and obtaining his license plate was an illegal search in violation of article first, § 7 of the Connecticut constitution and the fourth amendment to the United States constitution.
The plaintiff cannot assert a cause of action for a violation of article first, § 7 of the Connecticut constitution for the same reasons set forth in part IIID of this decision. With regards to the plaintiff’s claim of a fourth amendment violation, it is barred by § 52-577, which provides: " No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." The incident alleged in count seven took place August 27, 2012. The substitute complaint asserting this newly raised § 1983 claim was filed on April 24, 2017, nearly five years later.
The court therefore grants the defendant’s motion for summary judgment as to the trespass to chattel claim as well as the constitutional claims in count seven.
I. Count Eight- Abuse of Process, Illegal Ordinances
In count eight the plaintiff alleges a claim for abuse of process based on the town ordering him to comply with town ordinances and issuing him citations for noncompliance. The plaintiff also challenges the validity of the town’s ordinances and alleges that the town’s ordinances regarding unlicensed vehicles and snow and ice removal, as well as an all-night parking ban are unconstitutional.
This court determined in ruling on the defendant’s motion to strike, that the plaintiff, as a matter of law, cannot state a claim for abuse of process on the basis of these allegations because they do not involve a judicial process. See Larobina v. Mcdonald, 274 Conn. 394, 407, 876 A.2d 522 (2005) (" to prevail on an abuse of process claim, the plaintiff must establish that the defendant used a judicial process for an improper purpose " [emphasis in original; internal quotation marks omitted] ). As there remains a lack of allegations involving the use of a judicial process that would support an abuse of process claim, the court grants the defendant’s motion for summary judgment as to count eight on the basis of the law of the case doctrine. See Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, supra, 308 Conn. 322.
See Memorandum of Decision Re: Motion to Strike # 116, p. 12.
Additionally, this court previously determined that the plaintiff did not have standing to challenge the facial validity of the ordinances because he failed to allege " a specific and personal interest in the[ir] validity." (Internal quotation marks omitted.) Ramos v. Vernon, 254 Conn. 799, 809, 761 A.2d 705 (2000). " Standing is ... a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented ... These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury [that the complainant] has suffered or is likely to suffer, in an individual or representative capacity." (Emphasis in original; internal quotation marks omitted.) Id., 808-09.
See Memorandum of Decision Re Motion to Strike # 116, p. 13-14.
With regards to the town’s parking ban, the plaintiff has not alleged a colorable claim as he merely alleges that it is unlawful and prevented him from keeping his vehicles on the street. Therefore, the plaintiff continues to lack standing to challenge the facial validity of this ordinance. With regards to the ordinance regarding unlicensed vehicles, the plaintiff alleges that he was given an order by Frank Kelley, a Zoning Enforcement Officer and Deputy Fire Marshal, to remove all his motor vehicles from his property and that the order threatened to remove the cars to an impound yard and then dispose of them. He further alleges that a removal and disposal would be an unconstitutional taking of his property. Construing these allegations broadly, the plaintiff arguably may have alleged an injury that he is likely to suffer as a result of violating the ordinance and, thus, would have standing to challenge the facial validity of the ordinance.
Nevertheless, the plaintiff’s claim fails because he has not met his heavy burden of proving the unconstitutionality of the ordinance. See Ramos v. Vernon, supra, 254 Conn. 814 (" [a] party attacking the constitutionality of a validly enacted [ordinance] bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt" [internal quotation marks omitted] ). In his objection to the defendant’s motion for summary judgment, the plaintiff makes no argument regarding the unlicensed vehicle ordinance. Other than the single statement: " [t]he registration of a car is not a safety hazard," the plaintiff does not mention his vehicles or the ordinance. Additionally, the plaintiff’s allegations in his substitute complaint that the town has no authority to order the removal of his vehicles are incorrect as a matter of law.
Municipalities have a broad grant of authority under General Statutes § 7-148. Greater New Haven Property Owners Assn. v. New Haven, 288 Conn. 181, 187, 951 A.2d 551 (2008) (" [Section] 7-148 constitutes a broad statutory mandate authorizing regulations at both the state and local levels" [internal quotation marks omitted] ). The Supreme Court has cautioned against narrowly interpreting this broad grant of authority where express authorization to act is not explicitly stated therein. Porcello v. Santanella, Superior Court, judicial district of Tolland, Docket No. CV-10-6002580-S (February 10, 2012, Shapiro, J.) (53 Conn.L.Rptr. 566, 569). Section 7-148 along with General Statutes § 14-150a permit municipalities to enact ordinances providing for methods of removing from property within the municipality vehicles that are considered abandoned, inoperable, or are unregistered. See e.g., id. ; Windsor v. Kopel, Superior Court, judicial district of Windsor, Docket No. CV-94-0704917-S (February 13, 1996, O’Neill, J.). Further, there was no taking of his property, as none of the plaintiff’s vehicles were ever removed from his property by the defendant. McCullough Dep., ¶¶ 37:1-37-8.
Ordinances are presumed valid; Polio v. Planning Commission, 232 Conn. 44, 49, 652 A.2d 1026 (1995) (" presumption of validity is accorded municipal ordinances" ); and, thus, the court grants the defendant’s motion for summary judgment as to count eight on the ground that there is no genuine issue of material fact that the town’s ordinance is constitutional.
J. Count Nine- Intentional Infliction of Emotional Distress
The plaintiff alleges another claim for intentional infliction of emotional distress in count nine. As discussed in part IIIC of this decision, the plaintiff cannot, as a matter of law, assert such a claim and, therefore, the court grants the defendant’s motion for summary judgment as to count nine.
K. Count Ten- Fraud by Non-Disclosure
In this count, the plaintiff asserts a claim for fraud by non-disclosure, alleging that " town officials misrepresented themselves in order to induce the plaintiff act and gain access to information that would not otherwise be provided ... and [that] led to the enforcement of tax liens." As previously determined by the court, a municipality is immune from liability for acts or omissions which constitute fraud; General Statutes § 52-557n(a)(2)(A); and the plaintiff’s claim for fraud by nondisclosure is thus barred by governmental immunity. The plaintiff’s contentions regarding intentional torts and immunity continue to be of no support and the defendant’s motion for summary judgment as to count ten is granted.
I. Count Eleven- Municipal Ordinance in Violation of Thirteenth Amendment
In count eleven, the plaintiff alleges that the town’s snow and ice removal ordinance is unconstitutional and in violation of the thirteenth amendment to the United States constitution. The defendant moves for summary judgment on the ground that the plaintiff lacks standing to challenge this ordinance, which the court previously addressed in its memorandum of decision on the motion to strike (Docket No. 123). Initially, the court concludes that the plaintiff continues to lack standing to challenge the town’s snow and ice removal ordinance in count eleven. See Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, supra, 322. The plaintiff has again alleged legal conclusions unsupported by facts regarding the ordinance, and his contention that the ordinance goes beyond the power bestowed upon municipalities and places an undue burden on abutting landowners like himself, is based on conclusory statements. The plaintiff also alleges that the requirement of the ordinance violates the right against involuntary servitude in the thirteenth amendment to the United States Constitution.
Even if this allegation did confer standing to challenge the ordinance, the plaintiff’s claim would still fail as a matter of law because he has not met his burden of proving its unconstitutionality. The plaintiff alleges that requiring abutting property owners to remove snow and ice within twelve hours after it has begun to accumulate is unlawful and beyond the powers given to it by state under § 7-148(c)(6)(C)(v). Section 7-148 confers broad powers upon municipalities and the plaintiff points to no language limiting a municipality’s decision as to timing or setting forth permissible time requirements. Section 7-148 should not be construed narrowly; Greater New Haven Property Owners Assn. v. New Haven, supra, 288 Conn. 187; and therefore, in the absence of express language, the twelve-hour requirement is not in excess of § 7-148(c)(6)(C)(v).
Further, the plaintiff fails to discuss the other statute which addresses snow and ice removal, General Statutes § 7-163a, which permits a municipality to transfer liability to abutting landowners for the failure to remove ice and snow. See McFarline v. Mickens, 177 Conn.App. 83, n.6, 173 A.3d 417 (2017) (" Our legislature has enacted enabling legislation permitting municipalities to promulgate rules and regulations concerning sidewalks encompassed within municipal highway rights of way. See General Statutes § 7-148(c)(6)(C)(v) ... Under General Statutes § 7-163a, municipalities may transfer to abutting property owners liability solely for injuries caused by ice and snow on public sidewalks" ). " Since the enactment of § 7-163a in 1981 ... municipalities across the state have incorporated the statute into their ordinances on removing ice and snow from sidewalks by adopting the statutory provision with clear, explicit language." (Citation omitted.) Robinson v. Cianfarani, 314 Conn. 521, 527, 107 A.3d 375 (2014). As ordinances are presumptively valid; see Pollio v. Planning Commission, supra, 232 Conn. 49 (" presumption of validity is accorded municipal ordinances" ); and there is clear authority permitting the defendant to have enacted its snow and ice removal ordinance, the plaintiff’s claim that it violates the thirteenth amendment to the United States constitution fails as a matter of law. Summary judgment is therefore granted as to count eleven.
M. Count Twelve- Illegal Search
In count twelve, the plaintiff alleges a claim for illegal search in violation of the fourth amendment to the United States constitution based on a certified letter he received from the town regarding an unregistered/inoperable vehicle that had been found on his property.
In count twelve, the plaintiff alleges an illegal search in violation of the fourth amendment to the United States constitution based on an inspection of his property in which an inoperable/unregistered vehicle was found. The defendant received a certified letter from Kim Ricci, the Town Planner and a Zoning Enforcement Officer, that this was in violation of the Chapter 234 of the Rocky Hill Town Code. The plaintiff alleges that this inspection was " part of a custom of unwarranted searches." This conclusory statement unsupported by fact does not establish that any Rocky Hill employee, by inspecting his property for zoning violations, were acting pursuant to any custom of the town. Additionally, the plaintiff cannot support a § 1983 claim based on the enforcement of the town’s ordinance regarding unregistered/inoperable vehicles because there is no evidence that a search, let alone an unreasonable search took place. The defendant submitted the signed and sworn affidavit of Ricci, who attests that no town official entered the plaintiff’s property or conducted a warrantless search but, rather, that the vehicle was publically visible in the driveway. Ricci Aff., ¶¶ 3-4. The plaintiff’s affidavit contains legal conclusions rather than facts based on personal knowledge and is therefore insufficient to contradict the affidavit submitted by the defendant. See Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).
Further, even if a search of the plaintiff’s property did take place, it was not unreasonable and a single search is legally insufficient to support a municipal liability claim pursuant to § 1983. " [W]here the policy relied upon is not itself unconstitutional, considerably more proof than [a] single incident [of unconstitutional activity] will be reasonably necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the ‘policy’ and the constitutional deprivation." (Internal quotation marks omitted.) Edgewood Street Garden Apartments, LLC v. Hartford, supra, 163 Conn.App. 232.
Accordingly, even if the plaintiff could prove that a town employee or official did conduct a search, he could not establish a basis for the municipal defendant’s liability under § 1983, as there is no vicarious liability under § 1983. See id., 233 (" [t]hat a plaintiff has suffered a deprivation of federal rights at the hands of a municipal employee will not alone permit an inference of municipal culpability and causation; the plaintiff will simply have shown that the employee acted culpably" [emphasis in original; internal quotation marks omitted] ). Therefore, the plaintiff cannot as a matter of law state a § 1983 claim against the defendant and for the reasons stated, summary judgment is granted as to count twelve.
IV
CONCLUSION
For the reasons discussed, the court grants the defendant’s motion for summary judgment as to all counts of the plaintiff’s substitute complaint.