Opinion
CV145037834S
05-09-2017
Allison Murray v. Town of Suffield and First Selectman of the Town of Suffield
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT #142
A. Susan Peck, Judge Trial Referee.
The plaintiff, Allison E. Murray, commenced this action against the defendant, Town of Suffield (town), in the small claims court on April 10, 2014, claiming a real estate tax waiver for 2013. On May 23, 2014, the town's motion to transfer this action to the Superior Court was granted. On June 16, 2015, the court granted the plaintiff's motion to add an additional party, the first selectman of the Town of Suffield (first selectman), as the second defendant to this action. On July 8, 2015, the plaintiff filed an amended complaint. The plaintiff also filed, inter alia, a motion for summary judgment on October 15, 2015 and a motion to strike on October 12, 2016, both of which the court denied. On November 17, 2016, the defendants filed the present motion for summary judgment, to which the plaintiff objected. In support of their motion, the defendants submitted a signed and sworn affidavit of Helen Totz, the town's tax assessor. The parties appeared and argued the motion at the short calendar on January 23, 2017.
It is undisputed that the plaintiff remitted the real estate taxes for which she requests abatement through the escrow payments that were included into her mortgage payments. Therefore, this court considers the plaintiff's claim as a request for a tax rebate.
Town and the first selectman will be referred to collectively as the defendants.
During the oral argument, the defendant argued that because the plaintiff filed the amendment without an accompanying request for leave to amend pursuant to Practice Book § 10-60, the allegations contained in the attachment to the summons and in the plaintiff's motion to cite additional party remain the operative pleading. Nevertheless, " it is the established policy of the Connecticut courts to be solicitous of pro se litigants." (Internal quotation marks omitted.) Ruiz v. Gatling, 73 Conn.App. 574, 575, 808 A.2d 710 (2002). The court " will endeavor to see that such a litigant shall have the opportunity to have [her] case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party." (Internal quotation marks omitted.) Cragg v. Administrator, 160 Conn.App. 430, 443 n.9, 125 A.3d 650 (2015). While the plaintiff did not properly amend the complaint pursuant to Practice Book § 10-60, the defendant failed to timely object to the amendment. Pursuant to Practice Book § 10-60, " [i]f no party files an objection . . . the amendment shall be deemed to have been filed by consent of the adverse party." Therefore, the court will consider the amendment as the operative pleading to the extent it raises the tax abatement claim, which is the only ground for the present motion for summary judgment against the town.
I
SUMMARY JUDGMENT STANDARD
" Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " 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). " 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.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " [T]he party moving for summary judgment . . . is required to support its motion with supporting documentation, including affidavits." (Internal quotation marks omitted.) Id., 324 n.12. " Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, supra, 321.
II
APPLICABLE LAW
" Municipalities have no powers of taxation other than those specifically given by the statutes." (Internal quotation marks omitted.) State ex rel. Bennett v. Glynn, 154 Conn. 237, 243, 224 A.2d 711 (1966). The power to prescribe or dispense with conditions, means, and methods of the assessment, levy, and collection of taxes lies clearly in the General Assembly and is subject to legislative control. Bassett v. Rose, 141 Conn. 129, 133-34, 104 A.2d 212 (1954). Powers of taxation possessed by cities are not inherent but must come either from a statute or from a charter provision, which is " a delegation of power from the legislative body of the State." State ex rel. Brush v. Sixth Taxing District, 104 Conn. 192, 198, 132 A. 561 (1926). There must be strict conformity on the part of the municipality to the terms of the legislative grant. Consolidated Diesel Electric Corp. v. Stamford, 156 Conn. 33, 36, 238 A.2d 410 (1968). " [T]he established rule in this state is that, except for an express statutory or charter provision, neither the board of selectmen, board of finance, nor town treasurer has the authority even to consider a tax rebate." State ex rel. Feigl v. Raacke, 32 Conn.Supp. 237, 241, 349 A.2d 150 (1975) . Those situations in which abatement or refund is possible have been carefully circumscribed by the legislature. See, e.g., General Statutes § § 12-124, 12-124a.
In their motion for summary judgment, the defendants claim that the Superior Court has no jurisdiction over the plaintiff's claim. Particularly, the defendants maintain that General Statutes § § 12-117a and 12-119 proscribe the limited circumstances, under which the Superior Court has jurisdiction over the tax review issues. Based on the affidavit of Helen Totz, the town's tax assessor, in which she attests that " at no point did the Plaintiff ever appeal her property valuation to the Board of Assessment Appeals during the calendar years of 2012, 2013, 2014, and 2015" and based on lack of evidence that the plaintiff's property's assessment was manifestly excessive, the town maintains that there is no issue of material fact that there are no such circumstances in the present case. The plaintiff counters in her " affidavit--oppositional motion to summary judgment" dated November 28, 2016, that " there is zero applicability of [§ § ]12-111 and 12-119" as well as § 12-117a to this action. During oral argument, the plaintiff contended that she did not claim that her property had been wrongfully assessed but rather sought to compel the defendants to abate her taxes pursuant to § § 12-124 and 12-124a.
General Statutes § 12-117a, entitled " Appeals from boards of tax review or boards of assessment appeals, " provides in relevant part: " Any person . . . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal there from, with respect to the assessment list . . . and with respect to the assessment list for assessment years thereafter, to the superior court for the judicial district in which such town or city is situated."
General Statutes § 12-119, entitled " Remedy when property wrongfully assessed, " provides in relevant part: " When it is claimed that . . . a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof . . . prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated . . . In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains."
General Statutes § 12-111, entitled " Appeals to board of assessment appeals, " provides in relevant part: " Any person . . . claiming to be aggrieved by the doings of the assessors of . . . town may appeal there from to the board of assessment appeals . . . An appellant whose appeal will not be heard by the board may appeal directly to the Superior Court pursuant to section 12-117a."
General Statutes § 12-124, entitled " Abatements of taxes and interest, " provides in relevant part: " The selectmen of towns . . . (1) may abate the taxes, or the interest on delinquent taxes, or both, assessed by their . . . communities upon such persons as are poor and unable to pay the same . . . provided either a standing abatement committee of a community or, if a community has no such committee, the Secretary of the Office of Policy and Management shall approve such abatement, and (2) shall present to each annual meeting of their respective communities a list of all persons whose taxes, or the interest on whose taxes, they have abated in the preceding year."
General Statutes § 12-124a, entitled " Municipal option to abate taxes on residence exceeding eight per cent of occupants' income, " provides in relevant part: " (a) Any municipality may, upon approval by its legislative body or in any town in which the legislative body is a town meeting, by the board of selectmen, abate the property taxes due for any tax year with respect to any residential dwelling occupied by the owner or owners and for whom such dwelling is the primary place of residence, to the extent that such property taxes exceed eight per cent or more of the total income from any source . . . (b) Whenever any municipality has approved abatement of taxes as provided in subsection (a) of this section, the owner or owners shall deliver to the tax collector in such municipality . . . an agreement . . . [that] shall constitute a lien on such real property which shall remain valid until paid."
During oral argument, the plaintiff also asserted that she had applied for an abatement of taxes and interest based on her low income but the town's first selectman denied her application without recording it in the minutes. Based upon that denial the plaintiff calls upon this court to compel the town to abate her taxes. The legislature, however, has not bestowed this power upon the Superior Court. Sections 12-124 and 12-124a do not proscribe tax abatement as a matter of right but rather give discretionary authority to towns and municipalities to abate taxes of such persons who " are poor and unable to pay" under § 12-124 and whose " property taxes exceed eight per cent or more of the total income" under § 12-124a, respectively. In denying the plaintiff's application for tax abatement, the town acted within its statutory authority.
This court notes that, unlike wrongful assessment appeals under § § 12-117a and 12-119, appeals from the decisions of towns and municipalities on tax abatement applications under § § 12-124 and 12-124a do not fall within the ambit of this court's jurisdiction. Therefore, even if this court were to assume, arguendo, that the town denied the plaintiff's application to abate taxes and even if that denial was recorded in the minutes, this court lacks authority to adjudicate the plaintiff's action to compel the town to either abate or rebate her taxes. Thus, the plaintiff has failed to state a claim against the town upon which relief can be granted and, is, accordingly, without adequate remedy at law.
With respect to the allegations that the town's first selectman breached a fiduciary duty, " [i]t is axiomatic that a party cannot breach a fiduciary duty to another party unless a fiduciary relationship exists between them. [A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him." (Citation omitted; internal quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163, 195, 896 A.2d 777 (2006). In the present case, the plaintiff has not provided the court with any pertinent case law and the court, after conducting its own research, was unable to find any case law that holds that a first selectman owes a fiduciary duty to its town's residents. Nonetheless, the Supreme Court " has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations[.]" Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2000).
Even if we assume that there are circumstances when the first selectman's superior knowledge, skill and expertise impose on him a fiduciary duty to represent the interests of a town's resident, the plaintiff's allegations simply do not provide the necessary factual basis to support a breach of fiduciary duty claim. " Such allegations cannot be read into the present pleadings." (Internal quotation marks omitted.) Doe v. Wolcott, Superior Court, judicial district of Waterbury, Docket No. CV-12-6013133-S (May 4, 2014, Shapiro, J.) (57 Conn.L.Rptr. 756, 759, ). Therefore, the plaintiff has failed to state a claim against the first selectman upon which relief can be granted.
III
CONCLUSION
Accordingly, for the foregoing reasons, the defendants' motion for summary judgment is hereby granted.