Opinion
HHDCV156057864S
06-30-2017
SJK Properties, LLC v. Town of East Windsor
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #146
A. Susan Peck, Judge.
On December 21, 2016, the plaintiff, SJK Properties, LLC, filed the single-count substituted complaint in this action against the defendant, the Town of East Windsor. In the complaint, the plaintiff alleges the following facts. The plaintiff was the owner of a single forty-five-acre undeveloped parcel of land located on East Road in East Windsor. The defendant has assessed the forty-five-acre lot as forty-nine individual building lots. The defendant has been illegally taxing the plaintiff's lot as forty-nine individual lots for tax years 2008 to 2013. The tax liens filed on the land records reference the deed of the single parcel. The defendant recorded forty-nine separate and distinct statutory foreclosure actions to foreclose on these tax liens, which were pending in the Superior Court. While the foreclosure actions were pending, the defendant initiated a single tax warrant collection process against the forty-nine individual lots.
The foreclosure actions have been withdrawn.
On December 11, 2014, the defendant sent the plaintiff the single tax warrant, which informed the plaintiff that the defendant was selling the forty-nine lots at auction on February 24, 2015. On February 20, 2015, the plaintiff applied for a temporary injunction with the Superior Court to enjoin the auction. On February 24, 2015, the Superior Court (Wahla, J.), denied the plaintiff's application for temporary injunction pursuant to General Statutes § 12-159. On February 24, 2015, the defendant would not accept bids on individual lots, and instead, only accepted bids on the entire subdivision. The plaintiff seeks: an order of temporary, preliminary, and permanent injunctive relief, which declares that the tax warrant sale of the plaintiff's properties to the defendant is null and void; an order, which permanently enjoins the defendant from proceeding with additional tax warrant sales and to allow the pending tax foreclosures to proceed to trial; an order that the defendant pay to the plaintiff's costs, including reasonable attorneys fees in defending against the illegal and void tax warrant sale; and other relief, which the court deems just and proper.
General Statutes § 12-159 provides in relevant part: " No act done or omitted relative to the assessment or collection of a tax, including everything connected therewith, after the vote of the community laying the same, up to and including the final collection thereof or sale of property therefor, shall in any way affect or impair the validity of such tax as assessed, collected or sought to be collected or the validity of such sale, unless the person seeking to enjoin or contesting the validity of such sale shows that the collector neglected to provide notice pursuant to section 12-157, to such person or to the predecessors of such person in title, and who had a right to notice of such sale, and that the person or they in fact did not know of such sale within six months after it was made, and provided such property was by law liable to be sold to satisfy such tax."
Attorney John Watts, the attorney for a collection agency for the defendant, refused to accept any bids that were not for the entire subdivision and that did not exceed $705,000.
On May 11, 2016, the defendant filed a motion to strike the single count of the plaintiff's original complaint on the grounds that the complaint failed to state a claim upon which relief can be granted because (1) a tax sale cannot be invalidated based on the manner that a town chose to conduct an auction or by anyone aware of their pendency in time to redeem; (2) state law permits towns to bid at their own tax sales, and prohibits invalidating the tax sale based on challenges to the underlying assessments, concurrent collection efforts, or their claimed attorneys fees; and (3) injunctive relief against tax sales cannot be awarded due to the availability of a remedy at law, and attorneys fees cannot be awarded because no statute or contract authorizes them. On November 8, 2016, the court (Shapiro, J.) granted the defendant's motion to strike the single count of the plaintiff's original complaint on the ground that the plaintiff failed to allege that either statutory exception provided in § 12-159 was applicable, and therefore, the plaintiff's challenge was precluded. On November 23, 2016, the plaintiff filed a motion for reconsideration and reargument. On December 5, 2016, the court (Shapiro, J.) denied the plaintiff's motion for reconsideration and reargument. On December 21, 2016, the plaintiff filed a single count substituted complaint. On January 4, 2017, the defendant filed a motion to strike the single count in the plaintiff's substituted complaint and submitted a memorandum of law in support of its motion. On March 3, 2017, the plaintiff submitted a memorandum of law in opposition to the motion to strike. On March 8, 2017, the defendant filed a reply to the plaintiff's opposition. The court heard oral argument at short calendar on March 20, 2017.
Practice Book § 10-39(a) provides in relevant part: " A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of . . . any one or more counts . . . to state a claim upon which relief can be granted . . ." " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " Our Supreme Court has found it appropriate for a defendant to file . . . a motion to strike . . . when an allegedly improperly revised complaint replaces a stricken complaint, especially when the allegations of the revised complaint appear to be the same in substance as those of the earlier, stricken complaint. See Royce v. Westport, 183 Conn. 177, 180-81, 439 A.2d 298 (1981) . . ." (Citations omitted.) Perugini v. Giuliano, 148 Conn.App. 861, 877 n. 10, 89 A.3d 358 (2014).
In the present motion to strike, the defendant argues that the plaintiff's substituted complaint fails to state a claim upon which relief may be granted because the plaintiff's substituted complaint is virtually identical to the complaint previously stricken by this court and does not add allegations, which this court held were necessary to avoid the prohibition against suit pursuant to § 12-159. Specifically, the defendant argues again that the substituted complaint fails to allege legally sufficient facts to support the plaintiff's cause of action because: (1) a tax sale cannot be invalidated based on the manner that the town chose to conduct the auction or by anyone aware of their pendency in time to redeem; (2) state law permits a town to bid at their own tax sale and prohibits invalidating them based on challenges to the underlying assessments, concurrent collection efforts, or their claimed attorneys fees; and (3) injunctive relief cannot be awarded due to the availability of a remedy at law and attorneys fees cannot be awarded because no statute or contract authorizes them. The plaintiff counters that (1) state law does not authorize or validate the defendant's illegal conduct or its violation of § 12-157(h); (2) the plaintiff can challenge the defendant's tax sale pursuant to § 12-159 because an exception applies as the collector failed to provide proper notice; (3) the defendant violated § § 12-157(h) and 12-157(c)(2) because it was a " first bidder" at the auction and submitted a " first bid" equal to the alleged tax liability of the entire subdivision, and therefore, the tax sale is invalidated and § 12-159 does not apply; and (4) the plaintiff's prayers for relief are legally sufficient.
" When the allegations of an amended complaint appear to be the same in substance as those of an earlier complaint that was stricken, the defendant may challenge the amended complaint by filing . . . a second motion to strike." (Citation omitted.) P& L Properties, Inc. v. Schnip Development Corp., 35 Conn.App. 46, 50, 643 A.2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994). " The motion to strike . . . challenges the legal sufficiency of the pleading by testing whether the complaint states a cause of action on which relief can be granted." Id. " If the plaintiff here has in fact merely restated the original cause of action, the defendant would prevail on either pleading." Id.
In the present case, the allegations of the substituted complaint are essentially the same as those of the original complaint. The plaintiff has failed to allege that either statutory exception provided in § 12-159 is applicable. For instance, the plaintiff alleges that the tax warrant did not properly describe the land sought to be auctioned and the defendant failed to post public notices of the sale, and argues that these facts demonstrate exceptions to § 12-159. Neither of these allegations, however, are an exception to § 12-159. The plaintiff's substituted complaint, therefore, fails to cure the defects of its original pleading, which the court struck. See P& L Properties, Inc. v. Schnip Development Corp., supra, 35 Conn.App. 50.
CONCLUSION
Because the substituted complaint merely reiterates claims previously disposed of by the trial court, the motion to strike the plaintiff's substituted complaint is hereby granted.