Opinion
No. X10-UWY-CV-07-4015543-S
July 15, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#141)
Introduction
This is essentially a tax assessment appeal by the Plaintiffs, William Massey and Dawn Massey, regarding property they own in Branford. In Count One, they claim excessive valuation pursuant to General Statutes § 12-117a, of their property, on the October 1, 2006 assessment date using values as of the October 1, 2004 revaluation date. In Count Two, they claim that pursuant to General Statutes § 12-119 the valuation and assessment of their property on October 1, 2006, as of the October 1, 2004 revaluation date, was wrongful, manifestly excessive, and made in disregard of relevant state law. In Count Three, they claim unlawful, malicious, wanton, willful, reckless and/or negligent actions, inactions and/or omissions against the Town of Branford regarding claims of violations of the Freedom of Information Act ("FOIA") and conflict of interests in the determination by the Branford Board of Assessment Appeals of their appeal of the assessment of their property for the October 1, 2006 grand list, which used values as of the October 1, 2004 revaluation date. In Count Four, the Masseys seek invalidation of the October 1, 2006 grand list of the Town of Branford asserting, among other claims, violations of General Statutes § 12-121f(a)(11) and (13), General Statutes § 12-121f(b)(1) and (6), and General Statutes § 12-121f(c)(5). In Count Five, the Masseys claim unlawful, malicious, wanton, willful, reckless and/or negligent actions, inactions and/or omissions by Michael Milici, as assessor/sub-contractor/consultant for the Town's Assessor's officer in his assessments of other various properties in Branford. In Count Six, the Masseys claim unlawful, malicious, wanton, willful, reckless and/or negligent actions, inactions and/or omission against Barbara Neal, as Assessor for the Town and a member of the Branford Board of Assessors in causing and/or allowing and/or permitting Milici to reduce selective assessments which she approved as the Assessor of the Town of Branford and which the Masseys claim violated their state and federal constitutional rights to due process and equal protection of the law. In Count Seven, the Masseys claim unlawful, malicious, wanton, willful, reckless and/or negligent actions and/or inactions and/or omissions against Trista Clyne, an employee of the Town of Branford, regarding her handling of various Freedom of Information requests made by the Masseys' agent, which the Masseys claim violated their state and federal constitutional rights to due process and equal protection of the law. In Count Eight, the Masseys claim the Town of Branford has violated various statutes regarding the disclosure and safeguarding of public records as well as the assessment of property. In Count Nine, the Masseys claim negligent supervision against the Town of Branford regarding the supervision of its town counsel, litigation defense counsel, and special outside counsel regarding certain of their actions in a prior lawsuit brought by the Masseys. In Count Ten, the Masseys claim a civil conspiracy against Clyne, Milici, and Neal to commit unlawful acts which resulted in injury and emotional distress to the Masseys. In Count Eleven and Twelve, the Masseys claim common-law and statutory fraudulent conveyance against Parish Farms, LLC. In Count Thirteen and Fourteen, the Masseys claim General Statutes § 12-170 penalties for official misconduct against Milici and Neal.
These Counts are not the subject of the motion for summary judgment before the court.
The Defendants, Town of Branford, Trista Clyne, Michael Milici, and Barbara Neal have moved for summary judgment with respect to the Masseys' complaint based upon the doctrine of res judicata and a lack of standing.
As a threshold matter, the Masseys claim that the Motion for Summary Judgment is procedurally improper in that the proper mechanism to raise a lack of subject matter jurisdiction is by way of motion to dismiss. However it is well recognized that a lack of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings. Fort Trumbull Conservancy, LLC v. City of New London, 282 Conn. 791, 802 (2007). The Plaintiffs cite the court to Colton v. State, Superior Court, Judicial District of New Haven at New Haven, Docket No. CV97-0396370 (Robinson-Thomas, J., Feb. 11, 2003), where the court stated that "a motion for summary judgment is not the proper vehicle to raise a lack of subject matter jurisdiction." Yet the court there recognized as well that whenever a lack of subject jurisdiction is raised it must be addressed and decided. The Masseys also claim that the Defendants are attempting, in their Motion for Summary Judgment, to move to strike portions of the complaint and they are time barred from doing so. Again, our Supreme Court has held that the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate where it fails to state a cause of action which cannot be cured by repleading. Larobina v. McDonald, 274 Conn. 394, 401 (2005). "Although we do not condone the use of a motion for summary judgment as a response to a defective pleading when a motion to strike would suffice, we can find no statute, rule or case that prohibits the use of a motion for summary judgment in this context. In fact, our Supreme Court has stated that [i]t is incumbent on a plaintiff to allege some recognizable cause of action in his complaint. If he fails so to do, it is not the burden of the defendant to attempt to correct the deficiency, either by motion, demurrer or otherwise . . . Thus, failure by the defendants to demur to any portion of the amended complaint does not prevent them from claiming that the [plaintiffs] had no cause of action and that a judgment in their favor was not warranted." (Citation and internal quotation marks omitted.) Gaudino v. East Hartford, 87 Conn.App. 353, 357-8 (2005). The Masseys do not argue that they can amend their pending complaint to allege facts which would defeat the Defendants' motion for summary judgment.
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 moving for summary judgment has the burden of showing . . . that the party is . . . entitled to judgment as a matter of law . . ." (Internal quotation marks and citations omitted.) Hopkins v. O'Connor, 282 Conn. 821, 829 (2007).
In a prior action, Massey v. Town of Branford, Superior Court, judicial district of Waterbury Docket No. X10 UWY 04-4010224, the Masseys sued the Town of Branford, Barbara Neal, and Michael Milici, regarding the assessment of their property for the grand lists of October 1, 2003, October 1, 2004, and October 1, 2005. In that same action they also sought to invalidate the grand lists for October 1, 2002, October 1, 2003, and October 1, 2004. The complaint there indicates that the challenged assessments were based on an October 1, 2002 revaluation date and a "statistical" revaluation for the grand list of October 1, 2004. In that action, the Masseys entered into a stipulation in which they agreed that the value of their property for 2003-2008 was $675,000. They subsequently sought to repudiate that agreement, and the court entered an order enforcing it. On January 31, 2007, the court entered judgment finding the fair market 100% valuation of the Massey's property, as of October 1, 2002 and October 1, 2004, to be $675,000 and the 70% value to be $472,500.00. That judgment is presently on appeal.
Res Judicata
The Defendants claim that this case is an attempt to simply relitigate the prior action. They argue that they are entitled to summary judgment because this action is barred by res judicata in that the claims on which the complaint is based have already been decided on the merits. The Defendants claim that judgment entered in which the court established the assessed value of the Plaintiffs' home for the years 2005, 2006, 2007, and 2008 at $675,000. The Masseys argue that this case involves the tax assessment for a different time period, October 1, 2006, and seeks invalidation of the Town of Branford's grand lists for different years, October 1, 2005, and October 1, 2006. In addition, the Masseys claim that this action includes additional causes of actions not included in the previous action as well as ones directed against two parties who were not named in the previous action, Clyne and Parish Farms, LLC.
The Masseys claim that the documents submitted by the Defendants in support of their motion are insufficient as a matter of law and should be disregarded since they have not been authenticated. It is true that evidence submitted in support of a motion for summary judgment must be properly authenticated to be considered. New Haven v. Pantani, 89 Conn.App. 675 (2005). However, here the documents referred to by the Defendants in support of their motion, and relied upon the court in rendering this decision, are documents, pleadings or memoranda of decisions filed with the court in their previous case. This court may take judicial notice of that file. Code of Evidence § 2-2(b). Court records may be judicially noticed for their existence, content, and legal effect. State v. Gaines, 257 Conn. 695, 705 n. 7, 778 A.2d 919 (2001); Grant v. Commissioner of Corrections, 87 Conn.App. 814, 817, 867 A.2d 145 (2005)." 2007 Cumulative Supplement, Tait's Handbook of Connecticut Evidence, Third Edition, Colin C. Tait, p. 24.
"The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction . . . If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made . . . Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum . . . More specifically, collateral estoppel, or issue preclusion . . . prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . The applicability of the doctrines of collateral estoppel or res judica presents a question of law that we review de novo . . . Because these doctrines are judicially created rules of reason that are enforced on public policy grounds . . . we have observed that whether to apply either doctrine in any particular case should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . . . and the competing interest of the plaintiff in the vindication of a just claim . . . These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation . . . The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest." (Citations and internal quotation marks omitted.) Powell v. Infinity Insurance Company, 282 Conn. 594, 600-(2007).
The concepts of res judicata and collateral estoppel apply as well to appeals from property tax assessments. In Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619 (1981), the plaintiff attempted to challenge an assessment for the years October 1, 1975, 1976, and 1977 where, in previous litigation, it had challenged the assessment for the years October 1, 1973 and October 1, 1974, and the assessments for the years 1973-1977 were identical. The Court noted that the annual grand list for every year since 1971 had been based on the 1971 valuation which the Court previously determined was proper. The Court held that: "The fact that this valuation has been applied to successive grand lists does not permit a different result. Consideration of the contrary result demonstrates the inefficacy of permitting a litigant to contest the validity of an assessment figure on ten different occasions (i.e., each of the ten years permitted by General Statutes 12-62). The Uniroyal I decision is conclusive as to the question of whether the value established was a fair 1971 value. Its application to subsequent years (as permitted by General Statutes 12-62) does not permit relitigation of issues previously decided." (Footnote omitted.) Id., 633-34. The Court noted that: "Since we deal here with tax assessments for different tax years, we are not directly concerned with res judicata but instead with that branch of the doctrine known as collateral estoppel . . . Collateral estoppel is that aspect of res judicata which is concerned with the effect of a final judgment on the subsequent litigation of a different cause of action involving some of the issues determined in a former action between the parties . . . [A] prior judgment between the parties has been held to operate as an estoppel in a suit on a cause of action different from that forming the basis for the original suit only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered." (Internal quotation marks and citations omitted.) Id., n. 9. As Judge Aronson noted: "Following Uniroyal Inc. v. Board of Tax Review, 182 Conn. 619, 438 A.2d 782 (1981) ( Uniroyal II), we have consistently held that the doctrine of collateral estoppel bars a property owner from challenging an assessment where the value of the property was determined in a prior tax appeal related to the same decennial revaluation year . . . A litigant cannot contest the valuation placed upon his or her property during a revaluation year, and then contest the validity of the assessment each year thereafter until the next revaluation. Uniroyal, Inc. v. Board of Tax Review, supra, 182 Conn. 634." Maharishi School v. City of Hartford, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV95 0551521 (Oct. 17, 1997) [20 Conn. L. Rptr. 568]. See also, Naugatuck Valley Associates v. City of Waterbury, Superior Court, judicial district of Waterbury at Waterbury, Docket No. UWY CV 96-0132751 (Hodgson, J., Jan. 11, 1999). ("[T]he general rule [is] that a party that has already obtained an adjudication on the issue of the fairness of a particular decennial assessment cannot obtain another court adjudication on that same issue simply because the contested valuation had been used again as a basis for assessment of taxes in a subsequent year.")
In this case the Masseys seek to differentiate their claims here by alleging that they are attacking their assessment for different years than in the previous suit. However, those assessments are based on the same valuations that were the subject of their previous lawsuit and, based on the decision in Uniroyal, Inc., any challenge to them is barred by collateral estoppel. See, for example Count Three (Excessive Valuation — October 1, 2005 Grand List, C.G.S. § 12-117a), Paragraph 85 of the Plaintiffs' June 20, 2006, Revised and Re-Amended Assessment Appeal Application in Docket No. X10-UWY-CV-04-4010224 (alleging "[t]he assessor determined that the true and actual valuation for plaintiffs' 225 Stony Creek Road property as of October 1, 2005 assessment date (using values as of October 1, 2004 valuation date) was as follows: Land — $165,300.00, Building — $550,100.00, Extra Building Features — $13,500.00, Total Appraised Value — $728,900.00") and Paragraph 87 of that same complaint (alleging "[t]he assessors of the Town, instead, assessed plaintiffs' property in excess of 70% of its purported true and actual valuation on the October 1, 2005 assessment date (using values as of the October 1, 2004 revaluation date) IN VIOLATION OF C.G.S. § 12-62a(b) — i.e.: Land — $115,700.00, Building — $385,100.00, Extra Building Features $9,500.00, Total Appraised Value — $510,300.00), and Count One (Excessive Valuation — C.G.S. § 12-117a), Paragraph 2 of their May 29, 2007 Amended Application in this case (alleging "[t]he assessors determined that the true and actual valuation for plaintiffs' 225 Stony Creek Road property as of the October 1, 2006 assessment date (using values as of the October 1, 2004 revaluation date was as follows: Land — $165,300.00, Building — $550,100.00, Extra Building Features — $13,500.00 Total Appraised Value — $728,900.00") and Paragraph 4 (alleging "[t]he assessors of the Town instead, assessed plaintiffs' property in excess of 70% of its purported true and actual valuation of the October 1, 2006 assessment date (using values as of the October 1, 2004 revaluation date) in violation of C.G.S. § 12-62a(b) — i.e.: Land — $115,700.00, Building — $385,100.00, Extra Building Features — $9,500.00, Total Appraised Value — $510,300.00") of that same complaint. In the previous lawsuit the court made findings of facts and entered judgment on January 31, 2007 in which it found the fair market 100% valuation of the Plaintiffs' property to be $675,000 and the 70% value to be $472,500 as of October 1, 2004. Therefore the Defendants' motion for summary judgment as to Counts One, Two, and Three, in which the Plaintiffs seek to challenge the assessment of their property for the October 1, 2006 assessment year is granted, since that assessment is based on the October 1, 2004 valuation. The October 1, 2004 valuation was stipulated to by the parties in the previous lawsuit, and was determined by the court in its January 31, 2007 judgment to be proper. Although the Plaintiffs have appealed that judgment, it remains in full force and effect. Pursuant to Practice Book § 61-11, there is no stay of the judgment in a tax appeal while the case is on appeal to the Appellate Court.
The court agrees with the Plaintiffs that this was the operative complaint when judgment was entered in that matter.
In Count Nine, the Masseys claim negligent supervision against the Town of Branford regarding the supervision of its town counsel, litigation defense counsel, and special outside counsel regarding certain of their actions in the prior lawsuit brought by the Masseys. The Masseys claim that "the Town of Branford caused and/or allowed and/or permitted certain attorneys representing the Town of Branford to maliciously hinder, obstruct, delay and withhold records to which the plaintiffs were entitled under the Freedom of Information Act by making and filing untrue pleadings and employing other wrongful and unfair means including but not limited to coercing an expert to cause fabricated evidence to exist in plaintiff's aforementioned prior lawsuit." (Amended Application Count Nine (Negligent Supervision), Paragraph 3.) The Defendants claim that res judicata bars these claims since the Plaintiffs made numerous requests for sanctions against the Town's trial counsel in the previous litigation. "In deciding whether the doctrine of res judicata is determinative, we begin with the question of whether the second action stems from the same transaction as the first. We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage . . . In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action . . ." (Citations and internal quotation marks omitted.) Powell v. Infinity Insurance Company, 282 Conn. 594, 604 (2007). In Powell, the Court held that res judicata barred a subsequent action against the plaintiffs' insurer alleging bad faith, breach of contract, and violation of the Unfair Trade Practices Act through the Unfair Insurance Practices Act, after trial and entry of judgment in a previous suit by the plaintiffs against their insurer for uninsured motorist coverage. The Court upheld the trial court's granting of summary judgment on the basis of res judicata because under the transaction test the insurer's actions were known to the plaintiffs during the pendency of the prior action and the plaintiffs could have amended their complaint to include them. The Court stated: "We emphasize the well settled rule that [a] judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it . . . Therefore, despite the fact that the complaint in action I did not include express claims of bad faith and violations of CUTPA/CUIPA, those claims are nevertheless extinguished because they could have been asserted in action I . . . The additional allegations to which the plaintiffs direct our attention merely constitute additional evidence in support of their claims regarding the defendant's wrongful failure to pay the policy benefits and, therefore, are extinguished by the judgment in action I as part of the transaction, or series of connected transactions, out of which the action arose." (Citations and internal quotation marks omitted.) Id., p. 607-8. As in Powell, the judgment in the Massey's previous lawsuit bars their subsequent claims, which could have been raised in that lawsuit, that the Town's attorneys' actions in that lawsuit were improper.
Lack of Standing
In addition, the Defendants also claim that the Masseys lack standing to pursue their claim because the predicate status upon which the Masseys claim their standing appears to be that of wrongfully assessed taxpayers of the Town of Branford. The Defendants argue that since the Plaintiffs' assessment has been fixed by the court they cannot point to any action by a municipal actor which has resulted in any improper assessment of their property and the mere assertion by the Plaintiffs that they are taxpayers is insufficient to confer standing.
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it 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." (Citations and internal quotation marks omitted.) West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 11 (2006). "These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy . . . The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue . . . Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy] as opposed to a general interest that all members of the community share . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation . . . In addition to establishing standing through statutory or classical aggrievement, this court has recognized taxpayer standing. The plaintiff's status as a taxpayer does not automatically give [it] standing to challenge alleged improprieties in the conduct of the defendant town . . . The plaintiff must also allege and demonstrate that the allegedly improper municipal conduct cause[d] [it] to suffer some pecuniary or other great injury . . . It is not enough for the plaintiff to show that [its] tax dollars have contributed to the challenged project . . . [T]he plaintiff must prove that the project has directly or indirectly increased [its] taxes . . . or, in some other fashion, caused [it] irreparable injury in [its' capacity as a taxpayer." (Citation and internal quotation marks omitted.) Andross v. Town of West Hartford, 285 Conn. 309, 322-3 (2008). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . . A determination regarding a trial court's subject matter jurisdiction is a question of law . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage [of] the proceedings . . ." (Citation and internal quotation marks omitted.) Lewis v. Planning Zoning Commission, 275 Conn. 383, 390 (2005).
The Masseys claim that they possess standing not merely as taxpayers but also on the basis of their status as statutorily or classically aggrieved parties. However, in order to possess standing under any of these principles the Plaintiffs must allege and show that they, or in the case of statutory aggrievement, the interest protected by the statute, have suffered or are likely to suffer some injury as a result of the conduct of the Defendants. This the Plaintiffs cannot do. Here, as the Defendants claim, the Plaintiffs cannot demonstrate any injury personal to them as a result of any action by the Town or its officials in setting the 100% fair market value and the 70% assessment value of their property or the grand list, because those values have been reviewed and set by the court and not unilaterally by the Town and its officers. "In § 12-117a tax appeals, the trial court tries the matter de novo and the ultimate question is the ascertainment of the true and actual value of the [taxpayer's property] . . . The trier of fact must arrive at [its] own conclusions as to the value of [the taxpayer' property] by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and [its] own general knowledge of the elements going to establish value . . ." Cadlerock Properties v. Town of Ashford, 98 Conn.App. 556, 560 (2006). "The trial court in a § 12-117a tax appeal exercises de novo review and must arrive at its own conclusions as to the value of the taxpayer's assessed property. Thus, a judicial admission, like stipulation between parties, serves to inform, rather than to bind, the court's independent determination in a § 12-117a tax appeal." National Amusements, Inc. v. Town of East Windsor, 84 Conn.App. 473, 483 (2004). Thus the trial court here was required to, and did, make its own determination as to the value of the Masseys' property. Therefore the Plaintiffs have no standing to protest any action by the Town in setting their assessment since it was the court, and not the Town that did so. In fact, standing pursuant to General Statutes § 12-117a is limited to "[a]ny person . . . aggrieved by the action of the board of tax review or the board of assessment appeals." Thus the Plaintiffs also lack standing to pursue their claims set forth in Counts One, Two and Three of their Amended Application.
In Count Four, the Masseys seek invalidation of the October 1, 2006 grand list of the Town of Branford asserting, among other claims, violations of General Statutes § 12-121f(a)(11) and (13) General Statutes § 12-121f(b)(1) and (6), and General Statutes § 12-121f(c)(5). As the Defendants claim, the Plaintiffs cannot demonstrate any injury personal to them as a result of any action by the Town or its officials in setting their assessment such as to give them standing to make such claims. Their assessment has been set by court order. The Plaintiffs, however, argue that they are statutorily aggrieved such that they have standing to pursue these claims. "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Citation and internal quotation marks omitted.) Windels v. Environmental Protection Commission of the Town of Darien, 284 Conn. 268, 288 (2007). Pursuant to General Statutes § 12-121f an assessment list may be invalidated as to the taxpayers of the taxing district as a whole if the plaintiff establishes that certain errors or omissions by the assessor or the board of assessment appeals or a member or members of the board will produce a substantial injustice to the taxpayers as a whole. The statute does not identify who has standing as a plaintiff to pursue such a claim, nor does the statute place any requirements on that person. This court could find no cases which have addressed the issue of who had standing to pursue an action to invalidate an assessment list pursuant to General Statutes § 12-121f.
General Statutes § 12-121f provides, in pertinent part: "(a) An assessment list in any town, city or borough is not invalid as to the taxpayers of the taxing district as a whole because the assessor committed any one or more of the errors or omissions listed in subdivisions (1) to (15), inclusive of this subsection unless an action contesting the validity of the assessment list is brought within four months after the assessment date and the plaintiff establishes that the assessor's error or omission will produce a substantial injustice to the taxpayers as a whole: . . . (11) The assessor incorrectly made an assessment list abstract required by subsection (a) of section 12-55; . . . (13) The assessor did not take the oath required by law; . . . b) An assessment list in any town, city or borough is not invalid as to the taxpayers of the taxing district as a whole because the board of assessment appeals or a member or members of the board committed any one or more of the errors or omissions listed in subdivisions (1) to (6), inclusive, of this subsection unless an action contesting the validity of the assessment list is brought within four months after the assessment date and the plaintiff established that the error or omission will produce a substantial injustice to the taxpayers as a whole: (1) A member or members of the board of assessment appeals did not take the oath required by law; . . . (6) Any assessment list or abstract thereof is not signed by a member acting on behalf of the board of assessment appeals after having been examined and corrected by the board of assessment appeals . . . c) A tax laid and imposed in any town, city or borough is not invalid as to the taxpayers of the taxing district as a whole because of any one or more of the errors or omissions listed in subdivisions (1) to (5), inclusive, of this subsection unless an action contesting the validity of the tax is brought within four months after the tax is imposed and the plaintiff establishes that the error or omission will produce a substantial injustice to the taxpayers as a whole: . . . (5) A mistake, irregularity or omission occurred in any of the steps preparatory to the issuance of a rate bill or bill for taxes for an tax, or in the preparation or issuance of such a rate bill or bill for taxes, or in the warrant for collection thereof, provided such mistake, irregularity or omission is not shown by the taxpayer to have made his or her tax materially greater and that notice of the bill has been given to the taxpayer."
The court finds the discussion of standing in the context of the Connecticut Environmental Protection Act (General Statutes § 22a-14 to § 22a-20) to be instructive. There "any person" may maintain an action for relief against any entity for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment, or destruction. Although in Windels v. Environmental Protection Commission of the Town of Darien, Id., the Court recognized that there was no restriction on the class of persons who could seek relief under the Act it did state that: "A complaint does not sufficiently allege standing [however] by merely reciting the provisions of § 22a-16, but must set forth facts to support an inference that unreasonable pollution, impairment or destruction of a natural resource will probably result from the challenged activities unless remedial measures are taken." Id., 290. Applying the requirements of standing applicable to an action pursuant to General Statutes § 22a-16 to an action pursuant to General Statutes § 12-121f, in order to withstand the Defendants' motion for summary judgment as to standing regarding the Plaintiffs' claims pursuant to that statute, the court must review the complaint to determine if it sets forth sufficient facts to support an inference that the alleged errors or omissions by the assessor or the board of assessment appeals or a member or members of the board will produce a substantial injustice to the taxpayers of Branford as a whole. Here, however, the Plaintiffs merely recite the provisions of the statute in their complaint, claiming that the assesseor incorrectly made an assessment list abstract; that the Town through Neal, did not take the oath required by law upon the 2006 grand list; that none of the members of the Branford Board of Assessment Appeals ("BOAA") took the oath required by law upon the 2006 grand list; that certain members of the BOAA did not sign the grand list; that there were mistakes, irregularities or omissions in the steps prior to issuance of the tax bills or the preparation of the bills; and that Neal lacked certification as a Certified Connecticut Municipal Assessor II, all of which the Plaintiffs claim will produce substantial injustice to Branford taxpayers as a whole and that Branford taxpayers were injured. These statements of injury are merely conclusory and the Plaintiffs' complaint does not set forth any factual basis to support an inference that the errors or omissions they allege regarding the 2006 grand list will produce a substantial injustice to Branford taxpayers as a whole nor have the Plaintiffs submitted any evidence in opposition to the motion for summary judgment to support such an inference. Therefore the Plaintiffs lack standing to pursue this claim.
In Count Five, the Masseys claim unlawful, malicious, wanton, willful, reckless and/or negligent actions, inactions and/or omissions by Michael Milici in his assessments of other various properties in Branford. The Defendants argue that this claim was pled as Count Seventeen in the earlier action and stricken by the court as a personal claim. In Count Six, the Masseys claim unlawful, malicious, wanton, willful, reckless and/or negligent actions, inactions and/or omission against Neal in causing and/or allowing and/or permitting Milici to reduce selective assessments which she approved as the Assessor of the Town of Branford and which the Masseys claim violated their state and federal constitutional rights to due process and equal protection of the law. The Defendants argue that this claim was plead as Count Eleven in the earlier action and stricken by the court. The court did strike Counts Eleven and Seventeen in the earlier case because the court found that General Statutes § 12-117 and General Statutes § 12-119 did not provide for a cause of action against a municipal official in his or her individual capacity. See, Massey v. Town of Branford, Superior Court, judicial district of New Haven, Docket No. X10-NNH-CV-04048778 SCLD (Munro J., March 28, 2006). The Defendants also argue that the Masseys lack standing to assert the claims in Counts Five and Six. The court agrees. These Counts allege that Milici and Neal selectively reduced the assessment of certain other properties and, as a result, Branford taxpayers as a whole, including the Plaintiffs, were injured. The Plaintiffs lack standing to assert such a claim because their assessment has been established by court order and is not effected by the assessments of other properties in the Town. The Plaintiffs argue that they have the same degree of standing in their Fifth and Sixth Counts as they do in their First, Second, and Fourth Counts. As this court has already determined, the Plaintiffs do not have standing to pursue the claims in those Counts.
Failure to State Certain Causes of Action
In Count Seven, the Masseys claim unlawful, malicious, wanton, willful, reckless and/or negligent actions and or inactions and/or omissions against Trista Clyne, an employee of the Town of Branford, regarding her handling of various Freedom of Information requests made by the Masseys' agent, which the Masseys claim violated their state and federal constitutional rights to due process and equal protection of the law. However our Supreme Court has held that the Freedom of Information Act does not provide a private right of action for violation of its provisions and that the penalty provisions of the Act are the exclusive remedy for the violation of a right conferred by the FOIA. Pane v. City of Danbury, 267 Conn. 669, 680 (2004). Therefore the Plaintiffs' claims in Count Seven fail as a matter of law.
In Count Eight, the Masseys claim the Town of Branford has violated the FOIA and statutes concerning the safeguarding of public records as well as the assessment of property. As noted above, there is no private right of action for violations of the FOIA. In addition, the statute, General Statutes § 7-27, which requires municipal records be kept in fire-resistant vaults or safes, does not provide for a private cause of action but for enforcement by the State Librarian. Lastly, as noted above, the Plaintiffs lack standing to challenge the Town's assessment of other properties. The Plaintiffs argue that they have the same degree of standing in their Eighth Count as they do in their First, Second, and Fourth Counts. As this court has already determined, the Plaintiffs do not have standing to pursue the claims in those Counts. Therefore the Eighth Count fails as well.
General Statutes § 7-27 provides that: "All public records of towns, cities and boroughs shall be kept in fire-resistive vaults or safes except when in actual use for the purpose of examination or entry. If the proper authorities in any town, city or borough fail to provide such vaults or safes, the Public Records Administrator may give an order to the chief administrative officer of such town, city or borough that the same shall be provided. If such provision is not made within a reasonable time thereafter, said Public Records Administrator shall report the neglect to the State Librarian, who may seek enforcement of compliance with such order as provided in section 11-8. All fire-resistive rooms or vaults and all safes provided for the safekeeping of any such public records shall conform to the regulations adopted by the Public Records Administrator and shall be furnished with fittings of a noncombustible nature."
In Count Ten, the Masseys claim a civil conspiracy against Clyne, Milici and Neal to commit unlawful acts which resulted in injury and emotional distress to the Masseys. "The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff . . . [T]here is no independent claim of civil conspiracy. Rather, [t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself . . . Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort." (Citations and internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 408 (2005). Here the Plaintiffs simply allege that the Defendants committed "unlawful acts pursuant to an objective to vex and trouble plaintiffs and to cause the undersigned emotional distress." (Amended Application, Count Ten (Civil Conspiracy), Paragraph 2.) There are no facts alleged regarding what acts of the Defendants are claimed to be unlawful. In addition, although it appears that the Plaintiffs are attempting to plea a claim of intentional infliction of emotional distress, which could constitute the underlying substantive tort of the alleged conspiracy, they have not done so. "In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional [distress] or that he knew or should have known that emotional distress was [the] likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Citation and internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 706 (2007). The allegations of the Plaintiffs' complaint do not support a cause of action for intentional infliction of emotional distress therefore their civil conspiracy claim fails. In any event, the Plaintiffs have sued Clyne, Milici, and Neal in their "official positions" for the Town of Branford. "It is well settled law that an action against a government official in his or her official capacity is not an action against the official, but instead, is one against the official's office and, thus, is treated as an action against the entity itself." (Citations omitted.) Kelly v. New Haven, 275 Conn. 580, 595 (2005). Consequently, the claim against Clyne, Milici, and Neal in their official positions are, in essence, claims against the Town of Branford. It has been held that a town may not be liable under General Statutes § 52-557(a)(2)(A) for the alleged intentional infliction of emotional distress by its employees. Pane v. City of Danbury, 267 Conn. 669, 686 (2004).
General Statutes § 52-557n(a)(2)(A) provides that: "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, fraud, actual malice or wilful misconduct . . ."
In Counts Thirteen and Fourteen, the Masseys claim General Statutes § 12-170 penalties for official misconduct against Milici and Neal. That statute provides: "Each assessor, member of the board of assessment appeals, selectman, committee or collector, who does any unlawful act or omits to do any necessary act connected with the levy, assessment or collection of any tax, shall forfeit fifty dollars to the person aggrieved thereby, to be collected by such person in an action on this statute and each collector who charges or receives any illegal fees shall, in addition to said sum of fifty dollars, also forfeit double the amount of such illegal fees to the person aggrieved, to be collected as aforesaid." The Defendants argue that these claims were pled as Counts Twenty-Two and Twenty-Three in the earlier action and stricken by the court. A review of the court's decision on the Motion to Strike reveals, however, that the court did strike Count Twenty-Two but did not strike Count Twenty-Three, finding that since various of the Plaintiffs' claims regarding violations of certain state statutes had survived the Motion to Strike, they continued as a viable basis for recovery pursuant to General Statutes § 12-170. In any event, the claims of the Plaintiffs in both Counts Thirteen and Fourteen are based on the incorporation of their claims in Counts One to Ten to which the court has already determined that the Defendants are entitled to summary judgment. For the same reasons that the Plaintiffs cannot pursue those claims, they are not "aggrieved" such as to have standing to pursue the same claims pursuant to General Statutes § 12-170. As to the allegations of Counts Eleven and Twelve incorporated into Counts Thirteen and Fourteen, none of those allegations involve any "act connected with the levy, assessment or collection of any tax" but related to the alleged fraudulent purchase and transfer of land by Parish Farms, LLC. Thus the Plaintiffs' claims in Count Thirteen and Fourteen fail as well.
Conclusion
For the reasons stated above, the Defendants' Motion for Summary Judgment is granted.
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