Opinion
No. TTD CV-08-5002743-S
May 5, 2009
MEMORANDUM OF DECISION RE LIABILITY FOR MUNICIPAL TAX LIENS
This case is an action by the plaintiff, Town of Hebron, seeking to foreclose on two municipal tax liens on real property owned by the defendant, REJA Acquisition Corp., located on Route 85 in Hebron, CT, due to defendant's failure to pay overdue taxes. In its Amended Complaint, plaintiff alleges, in two counts, that the defendant owes money to the town for real estate taxes on the October 1, 1992, and October 1, 1993, grand lists on its property. In its Answer, the defendant agrees that it owes money to the town, and it is ready to pay, but it argues that it is not liable on the full debt because of a written agreement with the town, executed in 1995, and it further contends the town is barred from declaring a default on the agreement and foreclosing on the tax liens under general principles of equity, and under the specific equitable defenses of waiver, laches and estoppel. The contested issues presented for court decision at this time concern liability only, i.e., whether the plaintiff can seek foreclosure on the tax liens, and, if so, how much is due. For the following reasons, the court renders judgment in favor of the town and against the defendant as to liability on both counts, renders judgment for the town and against the defendant on the special defenses, finds the debt due to date to total $31,087.08, and it further awards attorneys fees in favor of the plaintiff in the amount of $2,462.50.
I
The facts in this case were established at the court trial conducted on March 12, 2009. At that time the court heard the testimony of Adrien McLean, Revenue Collector of the Town of Hebron; John Wittzenzellner, a stockholder and president of the defendant REJA Acquisition Corp.; John Soderberg, Wetlands Agent for the Town of Hebron; Andrew Tierney, Hebron's Public Works Director; Theodore Stevens, a private Environmental Engineer; and Robert E. Lee, former Town Manager of the Town of Hebron. The court also accepted into evidence certain documentary evidence, consisting of plaintiff's Requests for Admissions; defendant's Supplemental Response to those Requests for Admissions; an Inquiry Report proving and calculating the subject tax lien debt to date; an Agreement dated January 30, 1995, concerning the subject tax liens; two Quit Claim Deeds for the subject properties; an invoice dated March 27, 2006, and another dated January 7, 2009 concerning work on the property; numerous photographs depicting the condition of the property before restoration; a letter dated September 7, 2004 from the state Department of Environmental Protection (DEP) to Mr. Wittenzellner; and a letter dated December 22, 2008 from that same state agency to Theodore Stevens. Following trial, the parties filed briefs.
The court finds as follows: Prior to 1995, the land in question was an abandoned and polluted multi-acre tract, popularly known in town as the Nutek site. The property was then in the hands of the creditors of a previous owner, and it was under clean-up orders and/or liens from federal and state environmental agencies. The town was anxious to get the property cleaned-up, the back taxes paid, and the property back on the tax rolls as a valuable, viable and taxable commercial property, especially if it did not have to acquire the property by foreclosure and do the costly remedial work necessary itself. At the same time, Mr. Wittzenzellner was doing business in town operating a water company, and he was looking for new business opportunities. The Nutek site was across the street from the property he was using in his water system, and he saw that the site had potential as an aquifer. He reviewed the various reports identifying the pollution problems, and interviewed the experts involved. He decided to pass on the opportunity as the costs made the potential project a financial flop.
The property was known as the Nutek site because it was once owned by the Nuclear Technology Corporation. Although the site was polluted, it was not polluted due to radioactive waste. Despite its name, the Nuclear Technology Corporation was not engaged in atomic energy on site. It did gain some fame for its connection to the team of scientists that carbon-dated the Shroud of Turin, the funeral linen believed to have covered the body of Jesus. See STURP — Shroud of Turin Research Project, http://www.shroudstory.com/topic-sturp.htm. Some tests have disproved the authenticity of the shroud, but the debate continues. See Shroud of Turin, http://en.wikipedia.org/wiki/ShroudofTurin. Earlier, the area was famous for a different reason: Old Amston bourbon was made there by United Distillers Products Corp. See Along the Air Line . . . United Distillers and Nat Tulley Semel,http://www.performance-vision.com/airline/airline-smokestack.htm#history.
What changed his mind was a creative solution promoted by Robert E. Lee, then working as Town Manager for the Town of Hebron, concerning the 1992 and 1993 taxes and others. Lee had been working with a new tool in urban renewal that permitted potential land purchasers to "buy the tax liability"; i.e., developers could obtain property subject to existing tax liens with an agreement that the town would accept less than the full amount owed and the buyer was assigned the right to collect on the tax lien. The arrangement would require agreements and conveyances involving the existing owner, new owner, the town, and the environmental agencies. It also required a vote of the Hebron Board of Selectmen and a vote of the Hebron Town Meeting. A deal was struck, and approvals and favorable votes were obtained, resulting in the January 30, 1995 agreement central to the dispute in the instant case.
The agreement provided, in pertinent part, as follows:
1. The Purchaser shall acquire ownership of the premises described on Exhibit A attached and shall remediate all site contamination on parcels 1 and 2 on Exhibit A to the satisfaction of the Connecticut Department of Environmental Protection by no later than May 1, 1998.
2. The Town shall forebear foreclosing any of the tax liens identified above and any tax liens in its favor arising subsequent thereto and shall transfer the tax liens identified above to the PURCHASER or the PURCHASER'S designee upon the occurrence of the following events:
a. The payment to the TOWN as consideration for the assignment of the tax liens the sum of $5,000, together with interest at 12 percent per annum from March 1, 1995.
b. The provision by the Purchaser of satisfactory evidence to the TOWN that the PURCHASER has fulfilled the obligation imposed under Paragraph 1, above.
3. The parties acknowledge that time is of the essence of this agreement, and the failure of the PURCHASER to satisfy the requirements set out above by May 1, 1998, shall render this agreement null and void.
Agreement, p. 2 (emphasis added).
The agreement was signed by Lee, as the Chief Administrative Officer for the Town, and by Wittenzellner, as President of REJA, the company created for the acquisition. Of significance to this case are the requirement that the defendant complete remediation to the satisfaction of the DEP by May 1, 1998, and the fact that the contract indicated that time was of the essence. That deadline, like all other terms in the contract, was the result of negotiation, and the evidence at trial established the town wanted an express deadline, but left the choice of the specific date to the defendant. The defendant, after consulting with the DEP, estimated that it would take approximately two and one-half years to complete remediation and get final DEP approvals, and, so, it selected a deadline slightly more than three years away to give it ample time for completion. The phrase "time is of the essence" was not requested by any town official nor by the defendant. It was a legalism inserted by the Town Attorney upon which neither of the parties paid much attention. In short time, the defendant acquired the property, as agreed, and immediately commenced remediation efforts. However, the goal of obtaining DEP approval proved to be protracted and elusive. The regulators and regulations at DEP kept changing, and the every time the defendant seemed to reach the goal line, that goal line moved. Although the site was ninety percent cleaned by early 1998, and the necessary tests for DEP approval were done, for a variety of reasons the defendant kept having to repeat the tests or do more work. The May 1, 1998, deadline came and went with no final DEP approval having been obtained. In fact, to date, the parties disagree as to whether the defendant has obtained final DEP approval. All tests have been completed, and no further testing is required, but defendant's expert must still file a report with DEP. DEP satisfaction with the final report is forecast by defendant's environmental consultant, but it is not yet in hand. One thing is certain: the defendant's estimate that it would take less than three years to get final DEP approval was wrong. Current estimates are that similar projects would need about 40 years.
Plaintiff argues that it sent a request for admission to defendant on June 23, 2008, asking the defendant to admit that it has not, to date, remediated all site contamination to the satisfaction of the DEP. See Requests for Admission, Request No 5. Defendant did not respond within thirty days. Under the Practice Book, defendant's failure to respond constituted an admission. Practice Book § 13-23. Subsequently, defendant received a letter from the DEP dated December 22, 2008, approving a report on groundwater data and approving discontinuance of groundwater monitoring. Defendant contends that this constitutes DEP satisfaction even though it must still file a lengthily report to DEP and DEP could require more action. Defendant submitted a "Supplemental Response" to the Request for Admission date February 12, 2009, explaining the new developments and declaring that as of December 22, 2008, it had remediated all site contamination to the satisfaction of the DEP. Plaintiff argues that defendant cannot withdraw or amend its answer without motion because its failure to respond to the original Request For Admission makes the admission "conclusively established." Practice Book § 13-24. Defendant argues that it can supplement its response because the new event occurred after it allowed the admission. The court agrees with the defendant that it can supplement its response. Under its continuing duty to disclose, defendant can file a "supplemental or corrected compliance" under these circumstances. See Practice Book § 13-15.
After the May 1, 1998 deadline expired, defendant and town officials remained in touch, regularly, and the officials were satisfied with defendant's progress in cleaning up at the site. That the deadline for tax payment had expired was not an issue, at least not as long as Lee was Town Manager. Although the original agreement required approval of the Town Selectmen and a vote of the Town Meeting, Lee handled the daily administration of the town and the Board of Selectmen usually deferred to him. He took no action on the default. Despite the default, he thought he had the authority to keep the agreement in effect as long as the defendant kept working on obtaining DEP approval. Lee kept the Board of Selectmen updated on the progress of obtaining DEP approval, and they were satisfied with that progress, too; but Lee did not specifically raise the contract deadline with respect to the tax issue with Board of Selectmen or at a Town Meeting, nor with the other town officials monitoring work at the site. He did not ask for an opinion of the Town Attorney as to the ramifications of the expiration of the deadline nor whether an extension of the deadline required action by the Board of Selectmen or a Town Meeting vote. For him, the essence of the agreement was the cleanup and return of the property to the tax rolls as a valuable asset, and as long as the defendant was working on accomplishing DEP approval to his satisfaction, and to the satisfaction of the affected town agencies and the Board of Selectmen, he did not pursue tax collection. In the meantime, although the defendant had not paid the old real estate taxes covered by the agreement, Lee felt that the town was adequately protected because the debt was still increasing at 12 per cent interest under the agreement, and the defendant was paying the current taxes in the years after it acquired the land — at least until 2000.
In that year, the town Tax Collector raised the issue that the law required any tax payments to be credited to the oldest tax bills first — the 1992 and 1993 taxes — not current bills. Accord, General Statues § 12-144b. When the question of how to credit payment was raised with Lee, Lee told the Tax Collector to hold off on applying the payment to the old debts, and to allow the payments to be credited to current tax liability only, as there was then a proposal pending for the sale of the land to a non-profit organization — a desirable prospect that the Town Manager did not want to derail with a tax problem. Furthermore, twelve per cent interest was still building on the unpaid taxes, so Lee was not concerned about the delay in collection. Nevertheless, due to the continuing disagreement with the Tax Collector, defendant did not pay any real estate taxes in 2000, 2001, 2002, 2003, 2004, 2005 and 2006.
General Statutes § 12-144b provides, in pertinent part, as follows:
Each tax payment made to a municipality for taxes due on any specific property shall be applied by the municipality toward payment of the oldest outstanding tax levied on such property with the interest thereon . . .
Those liabilities have since been resolved. Only the taxes due on the 1992 and 1993 grand lists are in issue in the instant case.
Lee left the Town in July 2004. A succession of short-term, interim town managers followed him. None of them declared defendant in default on the agreement. In 2006, a permanent, new Town Manager was hired: Jared Clark; and, by then, there were new members on the Board of Selectmen. After the new Town Manager was notified of the failure to meet the agreement deadline, and after he consulted with others, he changed course. He no longer ignored the failure to meet the deadline under the Agreement with respect to the taxes. In 2008, the present lawsuit was served, seeking to foreclose on the tax liens on the property due to defendant's failure to pay the taxes.
Lee testified that he thought he had authority from the Board of Selectmen to allow the defendant more time, as he kept the Board apprised of the progress and the Board did not demand foreclosure; but, as noted above, he also testified that he did not specifically discuss the contract deadline on the tax issue with them, and the other town officials involved in monitoring the work at the site testified that the subject was not discussed with them, and they expressed complete unfamiliarity with the tax issue. Mr. Wittzenzellner thought that Lee had authority to extend the contract as Lee was aware of the expiration of the deadline and the town never sought to declare a default or seek a foreclosure. To the contrary, the town officials he dealt with all wanted him to continue cleaning the land and working to obtain DEP approval. Mr. Wittzenzellner never sought a written modification of the Agreement, nor did he ask for a new Board of Selectman or Town Meeting vote because he did not think it was necessary.
Based on the testimony of the Hebron Revenue Collector, assuming no contract discount, taxes due for the 1992 and 1993 taxes are $6,214.66, and $2,005.24, respectively. At 18 per cent statutory interest, the debt grows at the rate of $123.30 each month plus fees and charges, according to the town. Thus, the debt as the date of hearing, assuming no agreement, was $30,840.48; and the debt as of today, assuming no agreement, is, therefore, $31,087.08. If judgment enters in favor of the plaintiff in this foreclosure action, plaintiff is also eligible for an award of attorneys fees. General Statutes § 12-193. Counsel for the town submitted documentation, as of March 10, 2009, showing attorneys fees incurred to that date in the amount of $2,462.50. The attorneys fees calculations are not contested.
If the agreement is in effect, then plaintiff contends that it owes $5,000 as of March 1, 1995 as per the agreement. At twelve per cent interest, also as per the agreement, the debt grows at the rate of $50 each month, according to the defendant. Therefore, if the agreement is in effect, the debt as of today is only $13,500.00.
II
Foreclosures based on outstanding municipal tax liens are authorized by General Statute § 12-181 et seq. By Amended Complaint with two counts dated January 6, 2009, the Town seeks to foreclose on the liens for taxes due on the October 1, 1992 grand list (Amended Complaint, First Count — $6,214.66 plus interest, fees and charges) and on the October 1, 1993 grand list (Amended Complaint, Second Count — $2,005.24 plus interest, fees and charges). Defendant answered the complaint and, in the responses applicable to the Amended Complaint, it admits the assessments but denies liability and pleads special defenses raising the defenses of equity, waiver, estoppel and laches. In its trial brief, defendant asks the court to terminate this foreclosure action, arguing, in essence, that equity calls for that result because the former Town Manager, Robert E. Lee, waived the deadline for payment of taxes. Defendant briefs the equity and waiver claims, but not its equitable estoppel or laches claims. Defendant admits that it owes taxes, however, it suggests that, under its agreement as extended by Lee, its obligation to pay did not commence until December 22, 2008 — when DEP approved its report and request to discontinue groundwater monitoring. Under that scenario, it now owes only $13,500.00, and that amount increases by $50 each month. It is ready, willing and able to pay that amount. Plaintiff argues, in essence, that the defendant failed to satisfy the agreement when it failed to obtain DEP approval by 1998 and, therefore, it owes the full amount of taxes, not the discounted rate provided for in the agreement, and that defendant has failed to prove any of its special defenses. Plaintiff argues that, if it prevails in this case, defendant now owes $31,087.08 and that amount grows by $123.30 each month.
An action of foreclosure is an equitable action. City Savings Bank v. Lawlor, 163 Conn. 149, 155, 302 A.2d 252 (1972). A trial court has discretion, after a review of the equities, to withhold foreclosure. Lettieri v. American Savings Bank, 182 Conn. 1, 12, 437 A.2d 822 (1980). Certainly, if the debt is not in default, it would not be equitable to allow the foreclosure action to proceed. See First New Haven National Bank v. Rowan, 2 Conn.App. 114, 118-19, 476 A.2d 1079 (1984). Defendant argues that it is not in default because the agreement gave it a certain deadline to pay the 1992 and 1993 real estate taxes, and Lee waived the deadline.
The crux of the case, then, is whether Lee validly waived the deadline and gave defendant an unlimited extension despite the fact that the contract indicated that, with respect to that deadline, "time is of the essence." "When it is said that time is of the essence, the proper meaning of the phase is that the performance by one party at the time specified in the contract or within the period specified in the contract is essential in order to enable him to require performance from the other party." (Citations omitted; internal quotation marks omitted.) Mazzotta v. Bornstein, 104 Conn. 430, 437, 133 A. 677 (1926). "Its commonly understood meaning is that insofar as a time for performance is specified in the contract, failure to comply with the time requirement will be considered to be a material breach of the agreement." (Citations omitted.) Retrofit Partners I, L.P. v. Lucas Industries, Inc., 201 F.3d 155, 160 (2d Cir. 2000).
Of course, contract terms can be waived. Reiner, Reiner and Bendett, P.C. v. The Cadle Co., 278 Conn. 92, n. 10, 897 A.2d 58 (2006). That includes a "time is of the essence" term. Banks Bldg. Co., LLC v. Malanga Family Real Estate Holding, LLC, 102 Conn.App 231, 239, 926 A.2d 1, (2007). "Waiver involves an intentional relinquishment of a known right." (Internal quotation marks omitted.) Cassella v. Kleffke, 38 Conn.App. 340, 347, 660 A.2d 378, cert. denied, 235 Conn. 905, 665 A.2d 899 (1995). "Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Citation omitted; internal quotation marks omitted.) Hensley v. Commissioner of Transportation, 211 Conn. 173, 179, 558 A.2d 971 (1989). Furthermore, whether a waiver has occurred is a factual question for the trier. See Ridgefield v. Eppoliti Realty Co., 71 Conn.App. 321, 340, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002). In the instant case, the court finds that the waiver claimed by defendant was not express. It was not in writing, and its terms were not announced by Lee per se. Indeed, it was not explained when, if ever, plaintiff would be required to pay the 1992 and 1993 taxes. However, Lee's conduct certainly made it clear that Lee was not declaring a default under the agreement when plaintiff failed to obtain DEP approval in 1998. The conversations and conduct made it clear that, as far as Lee was concerned, the "time is of the essence" language of the contract was not a priority. Lee wanted the defendant to continue working on cleaning up the land and just finish the project, and he ignored or put off any attention to the fact that the deadline to obtain DEP approval had passed and the taxes were now due under the agreement.
Under such circumstances, the tests for waiver are very similar to the tests for estoppel. "[I]mplied waivers and estoppels by conduct are so similar that they are nearly indistinguishable." S.H.V.C., Inc. v. Roy, 188 Conn. 503, 509, 450 A.2d 351 (1982); accord, AFSCME, Council 4, Local 704 v. Dept. of Public Health, 272 Conn. 617, 623, 866 A.2d 582 (2005). "There are two essential elements to an estoppel — the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done." (Citation omitted; internal quotation marks omitted.) Fadner v. Commissioner of Revenue Services, 281 Conn. 719, 726, 917 A.2d 540 (2007). When it comes to invoking estoppel against a municipality, the burden on the movant is especially difficult. "[I]n order for a court to invoke municipal estoppel, the aggrieved party must establish that (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents." (Citation omitted; internal quotation marks omitted.) O'Connor v. City of Waterbury, 286 Conn. 732, 758, 945 A.2d 936 (2008). Likewise, it has been held that when a plaintiff seeks to estop a tax authority, estoppel "is limited and may be invoked (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; (3) only when special circumstances make it highly inequitable to estop the agency . . . As noted, this exception applies when the party claiming estoppel would be subject to substantial loss if the public agency were to negate the acts of its agent." (Citations omitted; internal quotation marks omitted.) Fadner v. Commissioner of Revenue Services, supra, CT Page 7655 281 Conn. 726-27.
In the instant case, to prevail, defendant must establish that the Town Manager had the authority to disregard the payment of taxes indefinitely without telling the Board of Selectmen or seeking a Town Meeting vote or even putting his decision in writing or letting the public know about his decision; that defendant fairly rely on it, and that the defendant changed its position in reliance on that fact to its detriment and substantial loss. The facts in this case show that defendant did nothing to determine whether it might give legal significance to the plaintiff's forbearance. S.H.V.C., Inc. v. Roy, supra, 188 Conn. 511. That the Town Manager acted with lawful authority was not proven by the defendant. A town transaction permitting a purchaser to "buy the tax liability" as occurred in this case generally requires a "resolution of its legislative body." General Statutes § 12-195h. A Town Manager is not a legislative body. General Statutes § 1-1(m). Moreover, the fact that the town has sought foreclosure in spite of his forbearance is manifest proof that he had no authority as its agent on this point. While Lee had signed the agreement for the town originally, it was understandable for defendant to believe that Lee had apparent authority to excuse compliance under the contract. Indeed, by law, town managers, under some circumstances, have the same powers as selectmen to take action for the town "approved by such town." See, General Statutes § 7-99. However, the doctrine of apparent authority does not apply to municipalities. Norwalk v. Board of Labor Relations, 206 Conn. 449, 452, 538 A.2d 694 (1988) ("[A]ll who contract with a municipal corporation are charged with notice of the extent of . . . the powers of municipal officers and agents with whom they contract, and hence it follows that if the . . . agent had in fact no power to bind the municipality, there is no liability . . . [A]n unauthorized compromise is not binding on the municipality"). Nor has the defendant proven the remaining elements necessary for waiver by implication or estoppel. The defendant did nothing different after the deadline was purportedly waived. It continued to work toward obtaining final DEP approval as it always had done. It continued to not pay the 1992 and 1993 taxes as before. Moreover, there is nothing in the facts that persuade the court that the defendant will be subjected to a substantial loss if the town were permitted to declare a default under the agreement and collect its taxes as required by the original agreement. There is nothing in the facts suggesting that defendant cannot pay its taxes. It indicates it is ready, willing and able to do so, and if it does so, there will be no need for a foreclosure. Defendant will still own the land, use it in its water business, and there is nothing in the facts to suggest that any of that will necessarily change if the town is permitted to collect these taxes. Moreover, the defendant has spent the past 11 years paying nothing on the 1992, 1993 taxes with no deadline for payment when the original agreement required default and payment in 1998. That was an extraordinary windfall. Giving up a windfall does not constitute substantial loss for purposes of estoppel. Dorfried v. October Twenty-four, Inc., 230 Conn. 622, 640, 646 A.2d 722 (1994). For the same reasons, the defendant has failed to persuade the court that foreclosure should be barred as a matter of equity.
General Statutes § 12-195h provides:
Any municipality, by resolution of its legislative body as defined in section 1-1, may assign, for consideration, any and all liens filed by the tax collector to secure unpaid taxes on real property as provided under the provisions of this chapter. The consideration received by the municipality shall be negotiated between the municipality and the assignee. The assignee or assignees of such liens shall have and possess the same powers and rights at law or in equity as such municipality and municipality's tax collector would have had if the lien had not been assigned with regard to the precedence and priority of such lien, the accrual of interest and fees and expenses of collection. The assignee shall have the same rights to enforce such liens as any private party holding a lien on real property.
Our Supreme Court set forth the basic principles for determining the existence of an agency relationship in Beckenstein v. Potter Carrier, Inc., 191 Conn. 120, 464 A.2d 6(1983). "Under § 1 of 1 Restatement (Second) of Agency (1958), [a]gency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking . . . The existence of an agency relationship is a question of fact." Wesley v. Schaller Subaru, Inc., 227 Conn. 526, 543, 893 A.2d 389 (2006) citing and quoting Beckenstein v. Potter Carrier, Inc., supra, 191 Conn. 132-34.
"Apparent authority is that semblance of authority which a principal through his own acts or inadvertencies, causes or allows third persons to believe his agent possesses . . . Consequently, apparent authority is to be determined, not by the agent's own act, but by the acts of the agent's principal . . . The issue of apparent authority is one of fact to be determined based on two criteria . . . First, it must appear from the principal's conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority . . . Second, the party dealing with the agent must have acted in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent's action." (Citations omitted; internal quotation marks omitted.) Host America Corporation v. Ramsey, 107 Conn.App. 849, 857-58, 947 A.2d 957, cert. denied, 289 Conn. 904, 957 A.2d 870 (2008).
As noted above, defendant also raised the issue of laches as a special defense to this foreclosure action. Although defendant has not briefed the issue, the court will discuss it. Laches is available as a defense in a foreclosure action in appropriate cases. See Baybank Connecticut, N.A. v. Thumlert, 222 Conn. 784, 791, 610 A.2d 658 (1992). "The defense of laches, if proven, bars a plaintiff from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the defendant . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant." (Citation omitted; internal quotation marks omitted.) Ferrigno v. Cromwell Development Assoc., 93 Conn.App. 799, 804 n. 10, 892 A.2d 291, cert. denied, 278 Conn. 903, 896 A.2d 104 (2006). By statute, a municipality has 15 years from the due date of the tax within which to institute a collection action. General Statutes § 12-164(a). Although the action in the instant case was brought within the statute of limitations, the court, in equity, has discretion to dismiss for laches an action initiated within the period of the statute where appropriate. See Dunham v. Dunham, 204 Conn. 303, 326, 528 A.2d 1123 (1987). In the instant case, defendant presents no argument in favor of its laches defense. The court finds that the facts show no prejudice to the defendant by the delay in bring this action. To the contrary, as noted above, defendant received a windfall. The plaintiff moved relatively promptly to pursue its taxes, once it learned that the agreement had been breached. Accordingly, the laches defense is unavailing.
III
For all of the above stated reasons, the plaintiff has established that it is entitled to judgment on the amended complaint against the defendant in the amount of $31,087.08, and judgment shall so enter. Judgment shall also enter in favor of the plaintiff and against the defendant on all of the special defenses. The court finds that the plaintiff's request for attorneys fees is reasonable and fair, and it awards the plaintiff $2,462.50 as of March 10, 2009. Plaintiff may file a Motion for Judgment for further proceedings consistent with this decision.