Opinion
LLICV165007909S
07-25-2018
Alyssa PETERSON v. CITY OF TORRINGTON
UNPUBLISHED OPINION
OPINION
The Hon. John D. Moore, Judge
ORIGINAL MEMORANDUM OF DECISION IS DATED FEBRUARY 16, 2018. THIS CORRECTED MEMORANDUM OF DECISION INCORPORATES CHANGES IN THE TEXT AS SET FORTH IN ORDER # 296.10, WHICH ORDER GRANTED DEFENDANT CROVO’S MOTION FOR RECONSIDERATION.
I. Introduction
In this lawsuit, the plaintiff and its mortgagee, Homeowners Finance Company (Homeowners), each attempts to undo a tax sale of the plaintiff’s real property and also seeks certain declarations from the court, damages and other relief arising from harm allegedly caused by this tax sale.
Each of the six parties in this case has filed a motion for summary judgment. On March 30, 2017, the defendant, Robert Crovo (Crovo), filed a motion for summary judgment (# 216) as to all counts of the plaintiff, Alyssa Peterson’s (Peterson) second amended complaint of November 28, 2016 (the operative complaint), as well as to counts one through four, inclusive, of the defendant and cross complaint plaintiff, Homeowners’ cross complaint. Count five of the cross complaint was not brought against Crovo. On March 30, 2017, the defendants, William Gilson and Sharon Gilson (collectively, the Gilsons), filed a motion for summary judgment (# 225) in regard to all of the plaintiff’s counts addressed to them, namely counts one through five, inclusive, and counts eight through ten, inclusive, of the operative complaint. On March 31, 2017, Homeowners filed a motion for summary judgment (# 227) on counts one and two of its cross complaint. Homeowners brought both of these counts against Crovo, the Gilsons and the City of Torrington. On March 31, 2017, the defendant, City of Torrington (City or Torrington), filed a motion for summary judgment (# 232) as to counts five through twelve of the operative complaint. Even though counts one through four, inclusive, of the operative complaint were brought against the City, it did not move for summary judgment on these counts. Even though count six of the operative complaint was not brought against the City, the City moved for summary judgment on count six. Because the plaintiff did not name the City as a defendant in count six, the court construes the City’s motion for summary judgment only to apply to count five and counts seven through twelve, inclusive. On March 31, 2017, the plaintiff filed a motion for summary judgment (# 234) on all counts of her operative complaint. Each party initially submitted a memorandum in support of its motion for summary judgment, as well as other supporting documentation.
William and Sharon Gilson are named as separate defendants in this case. However, they have identical interests. Therefore, the court will refer to them collectively throughout this opinion. Any reference infra to the "three defendants" refers to Crovo, the City and the Gilsons.
The plaintiff brought counts one through three, inclusive, five and nine of the operative complaint against all four defendants. The plaintiff brought counts four, eight and ten against Crovo, the City and the Gilsons. The plaintiff brought counts seven, eleven and twelve against Crovo and the City. The plaintiff brought count six only against Crovo.
The court heard argument on all five of the motions for summary judgment on June 13, 2017. The court ordered further briefing on certain legal issues, and the parties filed briefs in response to this order on June 28 and 29, 2017. On July 10, 2017, Crovo filed a request for leave to submit additional authority related to a case first raised in a June 29, 2017 filing of Homeowners. The court granted this request. On October 12, 2017, in order # 280.10, the court ordered additional briefing on or before October 19, 2017 on one discrete issue. All parties that chose to file this additional briefing except for Homeowners filed the briefing by October 19, 2017. Homeowners filed its additional briefing on October 20, 2017.
The motions for summary judgment and the objections filed in response thereto fall into one of two groupings, based upon the posture of the parties. Within each grouping, although not identical, the motions and objections raise essentially the same issues. The first grouping includes the motions and objections filed by Crovo, the City, and the Gilsons. This first grouping of motions and objections argues that there is no genuine issue of material fact as to the fact that the tax sale in question was performed properly under the governing statutes and case law and that the title to the real property sold in the tax sale has vested in the Gilsons. The second grouping is that of the plaintiff and Homeowners. The plaintiff and Homeowners contend that the tax sale was performed improperly, that the plaintiff still owns record title in the real property at issue and Homeowners still holds a mortgage on this property.
As mentioned just above, the two pleadings at issue are the plaintiff’s operative complaint and Homeowners’ cross complaint. The court will first review the plaintiff’s operative complaint and then the first four counts of Homeowners’ cross complaint.
As analyzed in great detail below, in the operative complaint and the cross complaint, the plaintiff and Homeowners mounted several categories of attacks on the tax sale at issue. Their first contention involves a temporary restraining order issued in a previous case. The plaintiff and Homeowners argue that this temporary restraining order, if obeyed, would have precluded the other three defendants from complying with statutory tax sale requirements. The plaintiff and Homeowners also contend the other three defendants did not obey the temporary restraining order and that the actions that the other three defendants undertook in violation of the temporary restraining order should void the tax sale. The second argument of the plaintiff and Homeowners is that, for other reasons, the tax sale did not comply with statutory tax sale preconditions. These other reasons include allegations that the other defendants committed fraud and abuse of process. The third attack made by the plaintiff and Homeowners is that one or more of the other defendants illegally clouded title, slandered title, abused process and committed forgery.
The court concludes that there is no genuine issue of material fact concerning the conclusion that the tax sale in question was performed properly and legally under the governing statutes and applicable case law. Therefore, for the reasons set forth below, the court grants the summary judgment motions of (1) Crovo as to all counts of the operative complaint and as to all counts of the cross complaint directed against him, namely, counts one through four, inclusive, (2) the City as to counts five and seven through twelve, inclusive of the operative complaint and (3) the Gilsons as to counts one through five, inclusive, as well as counts eight through ten, inclusive, of the operative complaint. These counts represent all of the counts of the operative complaint brought against the Gilsons. For the reasons set forth infra, the count denies the summary judgment motions of the plaintiff and Homeowners.
II. The Plaintiff’s Operative Complaint
A. Understanding the Allegations of the Operative Complaint
As mentioned above, the operative complaint is the second amended complaint that was filed on November 28, 2016 (# 189). Reviewing the allegations of this complaint provides a context in which the court may consider whether genuine issues of material fact exist as to the legal claims made in the operative complaint. Construing the operative complaint is, however, a difficult task.
The court begins by noting that, for several reasons, the basis for each claim in the operative complaint is not always clear. First, the plaintiff has mislabeled at least one cause of action. For example, the plaintiff entitled the cause of action of slander of title as "Slander" in count eight. Second, the plaintiff has also, in some counts, confused the essential elements of certain causes of action with an incorrect, layperson’s understanding of the kinds of behavior to which these causes of action might apply. For example, count eleven is entitled "Negligent Misrepresentation," but instead of alleging the essential elements of this subset of fraud (such as those set forth in Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 351-52, 71 A.3d 480 (2013) ), the plaintiff alleges that misrepresentations made by Crovo and the City were made carelessly. Another example is count seven, which sounds in "Fraudulent Conveyance." Instead of alleging that a conveyance was fraudulent because it was made with actual intent to avoid a debt or duty or was made without any substantial consideration by a person who was or will be thereby rendered insolvent (as required under cases such as Molitor v. Molitor, 184 Conn. 530, 535-36, 440 A.2d 215 (1981) ), the plaintiff merely alleges a false, wrongful, or unlawful conveyance. Third, although other causes of action more closely approximate cognizable causes of action, they omit essential elements thereof, or facts that would support those elements. For example, although count six, "Fraud," alleges that certain false statements were intended to "make the Plaintiff and others believe Crovo was acting lawfully" on behalf of Torrington, the count never expressly alleges that the purportedly false statements were made to induce the plaintiff to rely upon them (as required under cases such as Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970) ). Further, even though count six alleges, in conclusory fashion, that the plaintiff "has acted based upon Defendant Crovo’s false statements ...," the preceding factual allegations set forth in paragraphs 1 through 45, inclusive, and incorporated by reference therein, never allege how the plaintiff so acted, or did not act. Fourth, the plaintiff sometimes posits a generally accepted principle of law, but fails to allege facts to support it. In these counts, the plaintiff seems to want to cloak allegedly improper behavior pleaded elsewhere in the operative complaint in the garb of a different cause of action. For example, in count ten, "Abuse of Process," while the plaintiff, for the most part, properly alleges that the tort of abuse of process may lie against a person who improperly uses process to accomplish a purpose for which it was not designed; cf. Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 773, 802 A.2d 44 (2002) ("the gravamen of the action for abuse of process is the use of a legal process ... against another primarily to accomplish a purpose for which it is not designed ..." [Internal quotation marks omitted] ); the process at issue, the statutory method of selling real estate for taxes, was indeed being employed by the defendants for the purpose for which it was designed. Instead of alleging abuse of process, this count merely reiterates some of the issues that the plaintiff has previously alleged as non-compliance with the requirements of a tax sale as such are set forth in General Statutes § § 12-157 and 12-159.
When faced with a situation like this, one in which a pleading, like the operative complaint, "fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties." (Citation omitted.) Preleski v. Farganiasz, 97 Conn. 345, 348, 116 A. 593 (1922). After reviewing the allegations of each count immediately below, the court will construe the operative complaint in conformity with the gravamen thereof, so as to do substantial justice between the parties.
B. Common Factual Allegations
The following four paragraphs summarize the relevant factual allegations made by the plaintiff in the operative complaint.
The plaintiff is the record owner of 83-87 Harwinton Avenue, Torrington (the Property). The defendant, City, is a municipality within Connecticut. The defendant, Crovo, is the former private tax collector for the City. Crovo acted as such pursuant to a contract in effect from June 16, 2011 through May 31, 2015. The defendants, the Gilsons, are residents of Torrington. The defendant, Homeowners, is the lienholder of record of the Property. On March 10, 2015, in the prior matter of Peterson v. Torrington Tax Collector, Superior Court, judicial district of Litchfield, Docket No. LLI-CV-155007614-S (the Previous Case), the plaintiff applied for an ex parte stay and temporary restraining order, seeking the adjournment of a tax sale of the Property scheduled for March 12, 2015 until the conclusion of an adversary proceeding in the plaintiff’s bankruptcy case. The court, Marano, J., granted the application (# 100.32 in the Previous Case) (the TRO). The TRO commanded "Defendant Torrington Tax Collector Robert Crovo" and any agents and employees to adjourn the subject tax sale and, further, "strictly restrained and enjoined [Crovo and his agents] under penalty of law, henceforth and until further order of this court from taking any such additional action related to the tax sale of the subject property ..." Crovo was further ordered to appear before the court to show cause as to why a stay and temporary restraining order should not continue. The show cause hearing was scheduled for March 30, 2015. The plaintiff provided informal notice to Crovo’s counsel and attempted to serve Crovo at work and at home. Counsel appeared for Crovo in the Previous Case on March 19, 2015.
The operative complaint alleges that service was "later made by state marshal to his [Crovo’s] residence." However, as discussed infra, the service was ineffective. Please see order # 107.10 in the Previous Case.
The March 12, 2015 tax sale was adjourned in accordance with the TRO, with notice of the adjournment going to Torrington. One week after the adjournment, in violation of the TRO, Crovo and his agent sent out a new notice of adjournment and a new notice of levy of tax warrant and tax sale, setting a new date of sale of April 2, 2015. Homeowners received these notices. On over fifteen other occasions, Crovo violated the TRO by posting tax sale notices on the Property in Torrington city hall. On May 20, 2015, Crovo violated the TRO by executing an affidavit of debt.
Crovo’s counsel filed a motion to dismiss the Previous Case on March 20, 2015. On March 30, 2015, the court, Danaher, J., presided over a show cause hearing and over argument on the motion to dismiss. The plaintiff and the defendant received the decision on the motion to dismiss on May 26, 2015. The plaintiff told the defendant’s attorney within thirty minutes of receipt of this decision via e-mail from the defendant’s attorney that she would appeal it.
The Torrington Board of Finance and City Council voted on May 12, 2015 to replace Crovo as tax collector when his contract expired on May 31, 2015. Crovo’s contract to act as private tax collector for the City was terminated, effective May 31, 2015. The tax sale on the Property took place after May 31, 2015, on June 1, 2015. On June 11, 2015, Crovo executed a tax deed on the Property (the Collector’s deed) in which he stated that he was the City’s tax "collector, acting in the name of and for the City of Torrington," and that he bound "the City of Torrington, forever, to warrant and defend the above granted and bargained premises to the said grantee, his heirs and assigns, against all claims and demands arising from any necessary act omitted or unlawful act done by me in connection with the aforesaid levy or sale which impairs the same." A Torrington employee falsely notarized this deed. The plaintiff and the defendant Homeowners did not have statutory notice of the June 1, 2015 tax sale under General Statutes § 12-157. The City lacked notice of the June 1, 2015 tax sale in violation of Crovo’s contract. After the tax sale of the Property, Crovo and/or his agent published notice in the newspaper pertaining to the tax sale, which notice stated that Crovo was the tax collector for Torrington for taxes due to Torrington. Crovo created a final demand notice imprinted with the City’s seal and a masthead for "R. Thomas Crovo, Tax Collector, City of Torrington" on November 24, 2015. On March 30, 2016, Crovo provided the plaintiff with another sworn affidavit claiming he was the tax collector for Torrington. On July 7, 2016, while the instant matter was still pending, Crovo filed the Collector’s Deed in the Torrington land records.
C. Specific Allegations of Each Count
The first five counts of the operative complaint seek declaratory relief. Counts one, two, three and five are directed to all the defendants. Count four is addressed to Crovo, the City, and the Gilsons.
Count one seeks declarations that the TRO: (1) prevented Crovo and his agents from (a) posting the eighteen tax sale notices, (b) noticing any adjournments, (c) mailing notices, and (d) swearing out and filing affidavits; and (2) prevented Crovo and his agents from: (a) performing all necessary notice functions required under § 12-157, and (b) providing the contractually-required notice of the tax sale to the City via the Mayor’s office. Further, count one seeks a declaration that the TRO was violated numerous times.
Count two seeks a declaration that, because Crovo violated the TRO several times, the tax sale is void ab initio as a matter of law.
Count three seeks a declaration that the tax sale is voidable as a matter of law because Crovo did not provide statutory notice under § 12-157 and that the tax sale has been "properly challenged" by this lawsuit under § 12-159.
Count four seeks a declaration that, because Crovo lacked the power and authority to act as the City’s tax collector after his contract terminated on May 31, 2015, he no longer had the requisite legal authority to act in the name of or for the City on June 1, 2015, in order to transfer the plaintiff’s interest in the Property or to affect record title to the Property. Further, count four seeks a declaration that the June 1, 2015 tax sale was void ab initio because the City had terminated Crovo’s contract the day before.
Count five seeks a declaration that Crovo slandered title to the Property by recording the Collector’s deed while this action was not yet adjudicated, that Crovo recorded the Collector’s deed for the purpose of slandering title, and that the City has taken no action to cure this problem.
Counts six through twelve, inclusive, sound in various legal theories.
Count six alleges fraud and is addressed only to Crovo. Specifically, the plaintiff avers that certain of Crovo’s statements made after his contract was terminated, namely that he acted "in the name of" or "for the" City of Torrington were false, were known to be false and were made to make the plaintiff and others believe that Crovo was acting lawfully on behalf of the City. The plaintiff also alleges that Crovo, in the Collector’s deed, stated that any omission or unlawful act he committed relative to the tax sale was to be defended by and binding upon the City. The plaintiff claims that she acted "based upon" Crovo’s false statements and that she has been damaged by Crovo’s fraud and unlawful act.
Count seven, as mentioned supra, is entitled "Fraudulent Conveyance" and is addressed to Crovo and the City. It alleges that Crovo fraudulently transferred the Property through an illegal tax sale on June 1, 2015, and by means of a false tax deed on June 11, 2015, and that the sale was without "substantial consideration and without notice," rendering the plaintiff unable to challenge or stop the sale. Count seven also alleges that Crovo transferred the Property with the intent to make others believe he was acting lawfully and by claiming indemnification from the City. This count also avers that a City employee knowingly and falsely notarized the Collector’s deed, that neither Crovo nor the City has corrected the fraudulent transfer of the Property and that the filing of the tax deed on the City land records constitutes a fraudulent conveyance with specific intent to harm the plaintiff.
Count eight, although called Slander, actually sounds in slander of title. It is addressed to Crovo, the City and the Gilsons. Count eight alleges that these three defendants have slandered title to the Property because Crovo was not the City tax collector on the date of the sale, and he could not have acted "in the name of" or "for the" City to convey the Property or affect record title to it. Count eight repeats the allegation that the City employee falsely and knowingly notarized the Collector’s deed, and further alleges that the TRO still applied, at the time of the tax sale, to prevent any notice of the tax sale, as well as the sale itself or any action related thereto. Count eight additionally alleges that title was slandered for the following reasons: (1) because the TRO prevented compliance with § 12-157, the notice provisions of § 12-157 were violated, (2) because the defendants did not comply with § 12-157, the Property was not legally liable to be sold under § 12-159, and (3) that the defendants filed the Collector’s deed on the land records before this case was completed. The plaintiff claims that the defendants acted maliciously in that they have not tried to cure or undo the slander of title and, as a result, that the plaintiff has suffered humiliation and harm thereby.
Count nine is addressed to all defendants. Count nine seeks to quiet title to the Property in favor of the plaintiff because the plaintiff has a valid equitable interest in the Property and because the Collector’s deed, which clouds the title, is illegal, invalid, and unenforceable.
Count ten claims abuse of process against Crovo, the City, and the Gilsons. Count ten alleges that the mechanism set forth in § 12-157 for selling real estate for taxes could not be followed because of the restraints imposed by the TRO and that the defendants slandered title to the Property in violation of § 12-159 because § 12-157 was not followed. Count ten claims that the Collector’s deed was spawned by violations of the TRO and was, as a result, invalid and unenforceable. Count ten further alleges such the filing of such an invalid and unenforceable deed on the City’s land records harmed the plaintiff and constituted the use of legal process for a purpose for which it was not designed.
Count eleven sounds innegligent misrepresentation and is addressed to Crovo and the City. It first incorporates by reference all of the previous statements made by these two defendants and alleges that these defendants were negligent in contributing to, or making false, incomplete, and misleading statements. This count claims that the City should have exercised better oversight over Crovo during and after his contractual term, that all misrepresentations were worsened because neither defendant attempted to correct or remedy the numerous violations of the TRO, that these defendants had a duty to know, and could have ascertained the truth, but instead contributed to, or made misleading misrepresentations and that the City employee falsely notarized the Collector’s deed. Count eleven also suggests that because of the TRO and because of the termination of Crovo’s contract, these defendants had a legal duty to the self-represented plaintiff to exercise reasonable care and competence. The plaintiff then alleges that because of these defendants’ "false reliance" on these misrepresentations, the plaintiff has sustained harm.
Count twelve is addressed to Crovo and to the City. It sounds in the statutory count of forgery. Count twelve alleges that the Tax Collector’s Deed is a forgery under General Statutes § 52-565 for the following reasons: (1) Crovo knowingly made and executed the deed, despite knowing that the TRO prevented him from complying with § 12-157 from being followed, and (2) the Property was not legally liable to be sold under § 12-159 because Crovo’s contract had expired on the day before the June 1, 2015 sale, and, therefore, Crovo could not have been acting "in the name of" or "for the" City at that time to alienate the plaintiff’s interest in the Property. Count twelve also avers that these defendants knew or should have known that the notarized Collector’s deed would affect record title even though it was a forgery, that the City employee falsely notarized the Collector’s deed, and that Crovo and the City have acted maliciously and have not tried to undo the forgery.
In her prayer for relief, the plaintiff requests that the court: (1) make the declarations that she requested in counts one through five, inclusive, as set forth above; (2) order "voidance" of the Collector’s deed; (3) award money damages as well as pre and postjudgment interest, punitive damages and double damages under § 52-565; and order (4) specific performance and (5) other just and equitable relief.
At times in the complaint, the plaintiff alleges that both she and Homeowners have been harmed. Since it is axiomatic that the plaintiff does not represent Homeowners or its interest, the court confined its reiteration of the claimed damages to those asserted by the plaintiff on behalf of herself.
Before the court can decide whether to grant summary judgment on the operative complaint, the court must reasonably construe the plaintiff’s allegations so as to do substantial justice as between the parties. The court will begin by reviewing the causes of action seeking declaratory relief.
D. Discussion of the Declaratory Judgment Claims
In attempting to identify the issues that the plaintiff has placed before the court in the counts seeking declaratory judgment, e.g., counts one through five, the court begins with an analysis of the purposes of declaratory relief.
The authority for the court to provide declaratory relief arises from General Statutes § 52-29. This statute states, in relevant part, that the "Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment." General Statutes § 52-29(a). The statute further provides that the "judges of the Superior Court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section." General Statutes § 52-29(b). Practice Book § 17-54 states that the "judicial authority will ... render declaratory judgments as to the existence or nonexistence (1) of any right, power, privilege or immunity; or (2) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or does not depend ..."
Section 52-29 "provides a valuable tool by which litigants may resolve uncertainty of legal obligations ... The [declaratory judgment] procedure has the distinct advantage of affording to the court in granting any relief consequential to its determination of rights the opportunity of tailoring that relief to the particular circumstances ... A declaratory judgment action is not, however, a procedural panacea for use on all occasions, but, rather, is limited to solving justiciable controversies ...
"[W]hile the declaratory judgment procedure may not be utilized merely to secure advice on the law ... or to establish abstract principles of law ... it may be employed in a justiciable controversy where the interests are adverse, where there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement ... Finally, the determination of the controversy must be capable of resulting in practical relief to the complainant ..." (Citation omitted; internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 812-13, 967 A.2d 1 (2009).
Moreover, the "authority given to the courts of this state by the legislature to render declaratory judgments was not intended to broaden their function so as to include issues which would not be such as could be determined by the courts in ordinary actions. One of the conditions for rendering a declaratory judgment is that the person seeking it must have an interest, legal or equitable, by reasons of danger of loss or of uncertainty as to his rights or other jural relations." McGee v. Dunnigan, 138 Conn. 263, 267, 83 A.2d 491 (1951). "[D]eclaratory relief is a mere procedural device by which various types of substantive claims may be vindicated ... Implicit in these principles is the notion that a declaratory judgment action must rest on some cause of action that would be cognizable in a nondeclaratory suit ... (declaratory judgment statutes do not create a new cause of action; their purpose is to provide a more adequate and flexible remedy in cases where jurisdiction already exists). To hold otherwise would ... mean that the declaratory judgment statute and rules created substantive rights that did not otherwise exist. We decline to so hold." (Citation omitted; internal quotation marks omitted.) Wilson v. Kelley, 224 Conn. 110, 115-16, 617 A.2d 433 (1992).
Based on this statutory and Supreme Court authority, the court gleans the following conclusions.
The superior court has broad, but not unlimited, authority to declare the existence or nonexistence of uncertain legal rights and obligations, as well as the facts upon which these legal rights and duties depend. Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., supra, 290 Conn. 812-13. This power is limited, for example, to justiciable controversies, the determination of which must be able to provide practical relief to the complainant. Id., 813. As such, declaratory judgments are not meant to decide abstract legal issues in a factual vacuum or solely for the purpose of providing advice on the law. Id. Rather, the complainant must have a legal or equitable interest at stake such as the potential loss of or continued uncertainty about rights or other jural relations. McGee v. Dunnigan, supra, 138 Conn. 267. Most importantly, a claim for declaratory relief must rest on some cause of action that is, or could be cognizable in a nondeclaratory suit. Wilson v. Kelley, supra, 224 Conn. 116. In other words, the declaratory judgment statutes do not create new causes of action.
Keeping these principles in mind, the court will review the cognizable causes of action that underpin the declaratory judgment counts, counts one through five.
Count one is an attempt to seek two kinds of declaratory relief. The first relief sought is a declaration that, because the TRO disabled him from doing anything related to the tax sale, Crovo did not satisfy certain prerequisites for conducting a municipal tax sale, including those pertaining to necessary notice, such as posting and mailing sales notices, providing notice to the City, and all other notice requirements under General Statutes § 12-157, as well as those concerning the debt owed by the taxpayer, by swearing out and filing affidavits regarding the debt. Because a claim for declaratory relief must be based upon a cognizable cause of action, the court construes the first category of declaratory relief sought in count one as pertaining to a statutory cause of action challenging a tax sale under General Statutes § § 12-157 and 12-159. The second type of relief sought in count one is a declaration that Crovo violated the TRO by noticing adjournments to the tax sale and in numerous other ways.
Counts two through five, inclusive, of the operative complaint, all mount challenges to the tax sale and its consequences. Count two seeks the court to declare the tax sale void ab initio because Crovo violated the TRO several times. Count three asks the court to declare: (1) that the tax sale is voidable as a matter of law because of failure of statutory notice under § 12-157, and (2) that the tax sale was "properly challenged" under § 12-159. Count four requests the court to declare that Crovo could not have gone forward with the tax sale after his contract terminated, on May 31, 2015, and that, because Crovo was no longer the tax collector for the City, he could not transfer the plaintiff’s interest in the Property or otherwise affect record title to it. Count five seeks a declaration that Crovo slandered title to the Property by recording the tax collector’s deed while this action was still pending. Like the first category of declaratory relief sought in count one, all of these claims pertain to the statutory challenge to a tax sale.
E. Review of Allegations in Counts Six through Twelve
As discussed in detail above, the allegations of counts six through twelve are quite confusing. They do not always allege cogent, legally sufficient, or cognizable causes of action. The court’s first task, therefore, is to "put upon [the operative complaint] such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties." Preleski v. Farganiasz, supra, 97 Conn. 348. In so doing, the court reaches the following conclusions.
As previewed supra, the operative complaint makes three major categories of claims.
First, as with the declaratory judgment counts, the plaintiff seeks redress because of the alleged violations of the TRO by Crovo. The plaintiff claims that Crovo was precluded from engaging in any activities pertaining to the tax sale by the operation of the TRO. The TRO remained in effect for all relevant time periods. As a result, Crovo could not and did not comply with the prerequisite provisions, concerning notice and other requirements set forth in § 12-157. Alternatively, the plaintiff contends that Crovo violated the TRO and that such violations should void the tax sale.
Second, counts six through twelve, in the same manner as counts one through five, seek to void the tax sale of the Property, and also seek damages arising from the tax sale. The plaintiff challenges the validity of the tax sale under § § 12-157 and 12-159. In so doing, the plaintiff makes the following allegations as to the tax sale. As a threshold matter, Crovo lacked authority both to act on behalf of the City and also to represent that he acted on its behalf after his contract terminated on May 31, 2015. All activities connected with the tax sale undertaken after that date, including the tax sale itself, were done without legal authority. Because of all of these above-mentioned irregularities, the plaintiff properly challenged the tax sale under § 12-159. Because § 12-157 was not followed, the Property "was not legally liable to be sold" under § 12-159. The defendants Crovo and the City made both intentional and negligent false statements during the tax sale process.
Third, the plaintiff alleges various tortious activities that spring from the purportedly improper tax sale. In this regard, the plaintiff makes the following allegations. The defendants Crovo, Torrington, and the Gilsons, slandered the plaintiff’s title to the Property when they filed, or caused to be filed, the allegedly improper tax deed on the Torrington land records on June 7, 2016. Because the plaintiff has a "valid equitable interest in the Property," and because the defendants clouded title by filing the tax collector’s deed on the land records, the plaintiff seeks to lift this cloud and quiet title in her benefit. The defendants Crovo, Torrington and the Gilsons abused process by going through with the tax sale. The defendants Crovo and Torrington forged the tax collector’s deed because (1) the TRO precluded these defendants from proceeding with the tax sale; (2) Crovo lacked authority to proceed after May 31, 2015; and (3) a City employee knowingly and falsely notarized the tax collector’s deed.
As discussed in detail in IIA., supra, several of the plaintiff’s counts, such as negligent misrepresentation, fraud, and fraudulent conveyance are not legally cognizable as alleged. For purpose of doing substantial justice to the parties under Preleski v. Farganiasz, supra, 97 Conn. 348, the court will consider the factual claims made in these counts as attempts to support either the first or second category of claims posited above, either as actions allegedly in violation of the TRO or as actions that would undermine the efficacy of the tax sale under the governing statutes.
In deciding the instant motions, the court must, therefore, decide if there is a genuine issue of material fact as to the following issues: (1) whether the TRO prevented Crovo from taking actions so as to render the tax sale void; (2) whether the tax sale is invalid under § § 12-157 and 12-159; and (3)(a) whether title should be quieted in favor of the plaintiff or Homeowners, (b) whether their title has been slandered, (c) whether Crovo, Torrington and/or the Gilsons abused process, and (d) whether Crovo or the City’s notary committed forgery.
III. Homeowners’ Cross Complaint
Homeowners’ cross complaint sounds in five counts. Homeowners has only moved for summary judgment as to the first two counts of the cross complaint. However, Crovo has moved for summary as to the first four counts of the cross complaint. Therefore, the court must review the first four counts of the cross complaint.
The first four counts of the cross complaint contain many of the same factual allegations of wrongdoing on the part of the defendants as does the operative complaint.
In the first four counts of the cross complaint, Homeowners makes the following allegations. Homeowners is the first mortgagee on the Property. Homeowners’ mortgage would be extinguished if outstanding taxes to the City were not paid prior to the tax sale occurring and the expiration of the redemption period. Prior to Crovo issuing the tax warrants at issue, Crovo had paid the outstanding taxes to the City, so that no taxes were, after Crovo made said payment, owed to the City. Crovo acted in violation of the TRO when he sent out notice of the tax sale and subsequent adjournment thereof. Crovo’s contract with the City expired on May 31, 2015. Homeowners never received notice of the June 1, 2015 sales date. The Gilsons were the successful bidders at the tax sale. Crovo executed a tax collector’s deed on June 11, 2015, which stated that pursuant to the tax sale, and in consideration of $30,000 paid by the Gilsons, Torrington granted its interest in the Property to the Gilsons. Crovo’s tax sale, his execution of the tax collector’s deed, and his recording of the tax collector’s deed were improper because his contract had expired the day before and because the City was no longer owed any taxes on the Property. The tax collector’s deed was recorded on the City’s land records on July 7, 2016. Because it had no interest or title in the Property when it attempted to convey the Property, the City did not convey title to the Gilsons. In executing and filing the tax collector’s deed on the land records, Crovo slandered Homeowners’ title to the Property and caused it to sustain damages.
Based upon these allegations, Homeowners asks the court for the following relief. In count one, Homeowners seeks declarations that (1) the tax collector’s deed did not convey title to the Property to the Gilsons, (2) the plaintiff is the owner of record of the Property, and (3) Homeowners’ mortgage remains an enforceable lien on the Property. In count two, Homeowners seeks a judgment quieting title to the Property in its favor and that of the plaintiff and against the Gilsons. The first two counts, sounding as they do in a claim for declaratory relief, shall be treated by the court in the same fashion as outlined supra in regard to the plaintiff’s declaratory relief claims. Homeowners seek money damages, and attorneys fees for slander of title as alleged in counts three and four.
With the exception of the forgery claim against Crovo and the City’s notary, the gravamen of the claims of the first four counts of the cross complaint is identical to the gravamen of the operative complaint.
IV. Discussion
A. Introduction
Since it is impossible to decide the issues raised in the instant motions in a factual vacuum, the court will first find the material facts for which no genuine issue exists. One of the most important areas to explore is that of unique contractual relationship between Crovo and the City. After exploring that contractual relationship, the court will review, generally in chronological order, the uncontroverted facts leading up to the tax sale at issue and the ultimate recording of the Tax Collector’s Deed.
The court will then conduct a legal analysis of the issues that the operative complaint and the cross complaint raise. First, the court will review the operative effect, or lack thereof, of the TRO in the Previous Case during the relevant time period circumscribed by the initial setting of the tax sale, through and including, the ultimate recording of the tax collector’s deed on July 7, 2016. The court will then analyze the challenges raised against the tax sale under § 12-157 and § 12-159. After reaching conclusions on these issues, the court will then consider whether the plaintiff’s or Homeowners’ title has been slandered, whether title should be quieted in favor of the plaintiff or Homeowners, and whether either Crovo or the City employee in question committed forgery.
The court begins by reciting uncontroverted material facts.
B. Uncontroverted Material Facts
The following facts are uncontroverted. Their source is competent evidence under Practice Book § 17-45(a), including, but not limited to, affidavits, admissions made in pleadings and otherwise, some in the matter of Torrington v. Crovo, Superior Court, judicial district of Litchfield, Docket No. CV-15-5007734-S (the Crovo case), of which the court takes judicial notice and evidence that has come into this case through unopposed hearings, much of which was introduced by the plaintiff herself.
The City is sui generis among Connecticut municipalities. Since at least the late 1800s, Torrington has maintained a private tax collection system. The state legislature passed a special bill authorizing Torrington’s use of a private tax collector in the 1920s. Torrington is the only municipality in our state that appoints a private citizen as its tax collector. Pursuant to this system, Torrington enters into a contract for a specified term with the appointee to do so. This contract grants the appointee the authority to collect City taxes pursuant to its provisions and delineates the rights and duties of each party.
Crovo was the City’s private tax collector from 1999 until May 31, 2015. At the time of Crovo’s termination, the 2013 Grand List was subject to the terms of Crovo’s contract. The private system employed by the City guarantees that the City collects one hundred percent of the assessed taxes in the year in which they are due. After the City issues assessments of personal and real property, and establishes the tax rate, the tax collector receives payments of taxes and makes daily deposits of the amounts he or she collects to the City’s Treasurer. On the first Monday of May and November, the private tax collector pays, in a lump sum, any balance of payments due for taxes that remain uncollected. The tax collector continues to collect the outstanding taxes, as well as interest and fees due thereon, and is entitled to keep these funds because the tax collector has already paid the taxes in full. The tax collector makes a commission on the total amount of taxes collected and is entitled to the interest and fees on delinquent taxes.
The authority for the City to enter into private tax collection contracts is 21 Spec. Acts 7, No. 4 (1931). Section 4 of this special act authorizes the City to select a private tax collector who would serve a four-year term through the date on which a successor was appointed. Id. The board of finance was to determine compensation which was neither to be "less than one-half nor more than one per centum of the amount of taxes" collected "on the grand list." Id. The special act required the tax collector to "make and file for record in the land records of the town of Torrington tax liens for all unpaid taxes, as provided by the general statutes, within one year from the date such taxes shall become due and payable." Id. As mentioned in the preceding paragraph, the private tax collector must advance the amounts assessed to the City. Under 21 Spec. Acts 7, No. 4, § 5 (1931), once "said tax collector shall have made full and final settlement with the city treasurer for the taxes due in either taxation district, he shall not be compelled to deliver to his successor in office the rate bills therefore, but as to the unpaid taxes upon said rate bills he may execute his respective tax warrants therefor in any town at any time including any time after the expiration of the year limited for the collection of said taxes and shall have the same power as sheriffs in performing their duties with reference to said unpaid taxes and until said collector shall have collected the taxes due upon his rate bills in full he shall be subrogated to all rights of action for the collection of any unpaid taxes which said city would have under the laws of this state and may proceed in any such action in the name of the town or city and such unpaid tax when collected shall belong to said collector, his executor or administrator or assigns. Any provision of the general statutes requiring the collector to deliver his rate bills to his successor shall not apply to the collector of the city of Torrington."
Pursuant to this special act, the City and Crovo entered into a Tax Collector Contract on June 16, 2011 that ran until May 31, 2015. The contract specifically appointed Robert Crovo to the position of Tax Collector as set forth in the City’s Charter, and referred to him throughout as "ROBERT CROVO TAX COLLECTOR." Upon the termination of Crovo’s contract with the City, effective June 1, 2015, Launa Goslee, with the assistance of Torrington Tax Collector, LLC (TTC) replaced Crovo as the City’s private tax collector. However, Crovo’s last contract contained a specific provision that addressed the situation in which Crovo had made the advance payments to the City as set forth above, but was still owed monies by taxpayers. Paragraph 1.8 of the June 16, 2011 contract specifically provided that "upon the expiration of the term of this agreement ... ROBERT CROVO TAX COLLECTOR shall retain all tax collector powers so as to permit him to continue to collect those unpaid bills which are due to him." For any unpaid taxes through and including the 2013 Grand List, for which Crovo had already compensated the City, therefore, Crovo, delineated as ROBERT CROVO TAX COLLECTOR, retained "all tax collector powers so as to permit him to continue to collect those unpaid bills which are due to him."
This contractual provision was authorized by 21 Spec. Acts 7, No. 4, § 5 (1931), as set forth above, provided that, even after his term expired, the private tax collector was empowered to continue to proceed to pursue the payment of monies that the tax collector had already advanced to the City, but which remained unpaid by the taxpayer, "in the name of the town or city," and "subrogated to all rights of action for the collection of any unpaid taxes which said city would have under the laws of this state ..." See 21 Spec. Acts 7, No. 4, § § 4 and 5 (1931).
Under the operation of his contract with the City and 21 Spec. Acts 7, No. 4, § 5 (1931), Crovo was the Tax Collector of Torrington for purposes of all taxes through those on the 2013 Grand List which Crovo had advanced to the City and which remained unpaid.
Prior to the tax sale, the plaintiff owned the Property and Homeowners held a mortgage on it. By November 2014, the plaintiff owed substantial municipal real estate and sewer charges on the Property for the Grand Lists running through the 2013 Grand List. At that time, Crovo had already advanced these amounts to the City. At that time, Crovo made a final demand for payment of these charges. When the plaintiff did not make payment on this demand, Crovo, on December 1, 2014, issued an alias tax warrant for collection of the taxes owed on the Property.
To assist him in the recovery of these funds, Crovo retained an agent, Municipal Revenue Recovery Services, a company whose principal was Vincent Messina. Pursuant to General Statutes § 12-157, Messina, on December 9, 2014, levied the alias tax warrant against the Property and recorded a Notice of Levy of Tax Warrant and Tax Sale (Notice of Levy) on the Torrington Land Records, Volume 1195, page 252. Messina, thereafter, posted on the Torrington Town Signpost, a true and attested copy of the Notice of Levy endorsed by the Town Clerk of Torrington as received for record. On December 11, 2014, Messina deposited a copy of the Notice of Levy in the mail, with return receipt requested, to the plaintiff and Homeowners. Messina received signed returns of receipt from each. On December 14, 2014, and again on January 4, 2015, Messina caused the Notice of Levy to be published in the Torrington Register Citizen newspaper. On January 6, 2015, Messina again mailed the Notice of Levy to the plaintiff and to Homeowners. Once again, Messina received signed returns of receipt from each. On January 25, 2015, Messina once again published the Notice of Levy in the Register Citizen . On January 26, 2015, Messina once again sent a copy of the Notice of Levy to the plaintiff and to Homeowners by certified mail, return receipt requested. Both the plaintiff and Homeowners received this notice as well.
To effect collection of the unpaid taxes on the Property, Crovo scheduled a tax sale on the Property for February 19, 2015. Crovo then continued the tax sale until March 12, 2015. On February 25, 2015, Messina sent notice of adjournment to the plaintiff and Homeowners. The return receipts were signed by the plaintiff and Homeowners and returned, reflecting delivery dates of March 3, 2015 to the plaintiff, and February 26, 2015 to Homeowners.
On March 10, 2015, the plaintiff applied for and received the TRO in the Previous Case. The plaintiff attempted to effect service on Crovo by leaving service at his business address. On March 18, 2015, Messina sent notice of adjournment of the tax sale, until April 2, 2015, to the plaintiff and Homeowners. Both the plaintiff and Homeowners received this letter on March 20, 2015, according to the return receipts of each.
On March 20, 2015, Crovo filed a motion to dismiss the Previous Case for insufficiency of service of process. Crovo adjourned the tax sale from April 2, 2015 every three days by oral announcement and by posting of notices in Torrington City Hall.
On May 22, 2015, this court, Danaher, J., granted Crovo’s motion to dismiss the Previous Case, finding that the court lacked personal jurisdiction over Crovo as a result of insufficient service of process. The plaintiff never filed an appeal or a notice of intent to appeal. Further, the plaintiff never filed any motion with the court requesting that the TRO remain in effect.
After Judge Danaher dismissed the Previous Case, Crovo posted notice indicating that the tax sale would take place on June 1, 2015 at 4:00 p.m. in the Tax Office of Torrington City Hall. At that tax sale, the Gilsons bought the property for $30,000, entirely in cash.
Crovo prepared a Tax Collector’s Deed dated June 11, 2015, in favor of the Gilsons. This deed, for purposes of General Statutes § 12-159, was "similar, or in substance similar" to the form set forth in General Statutes § 12-158. In the deed, Crovo referred to himself as the "Tax Collector of the City of Torrington" and represented that he was "the duly appointed and qualified Collector thereof, for collection." In the deed, Crovo also stated that he was "acting in the name of and for the City of Torrington," and did "bind the City of Torrington, forever, to warrant and defend the above granted and bargained premises to the said grantee ..." The tax deed was notarized by Martin J. Connor, Notary Public, an employee of the City, who stated that "before me, R. Thomas Crovo, Tax Collector of the City of Torrington, known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same for the purposes therein, as his free act and deed."
Also, on June 11, 2015, Messina deposited in the mail, return receipt requested, a Notice of Property Sold at Tax Sale to the plaintiff and Homeowners. The return receipts evidenced that the plaintiff and Homeowners each received this package on June 15, 2015, fourteen days after the tax sale. The allegations of count five of Homeowners’ cross complaint reveal that Homeowners had knowledge of the tax sale within the redemption period. The plaintiff has also admitted that she received the Notice of Property Sold at Tax Sale in her response to Crovo’s Request for Admission 71. Messina also caused the Notice of Property Sold at Tax Sale to be published in a newspaper having a daily general circulation in Torrington, the Register Citizen, on June 10, 2015. This notice indicated that the redemption period would expire on December 2, 2015 at 9:00 a.m.
No one redeemed prior to that day and time. Later on December 2, 2015, however, the plaintiff filed the instant lawsuit and procured an ex parte order restraining the recording of the Tax Collectors Deed. That order remained in effect until this court, Moore, J., after conducting a hearing, dissolved this order on June 3, 2016. On June 7, 2016, Crovo recorded the Tax Collector’s Deed in the City’s Land Records. The only involvement that the Gilsons had in the process set forth above was that they purchased the Property at the tax sale.
The court will next review the familiar legal standards employed when the court considers a motion for summary judgment.
C. Summary Judgment
"Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a 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." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). Conversely, "[a]lthough a moving party has the burden of presenting evidence that shows the absence of any genuine issue of material facts, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." Haesche v. Kissner, 229 Conn. 213, 217, [A. Cite] (1994). Therefore, "[t]o oppose the Motion for Summary Judgment successfully, a non-movant must recite specific facts ... which contradict those stated in the movant’s affidavit and documents." Hammer v. Lumbermen’s Mutual Casualty Co., 214 Conn. 573, 578-79 [A. Cite] (1990).
The court will now proceed to analyze the legal issues raised by the plaintiff and Homeowners and identified by the court above.
D. The TRO
As mentioned above, both the plaintiff, and, to a lesser degree, Homeowners, have pleaded that the TRO issued by Judge Marano in the Previous Case, precluded, either permanently, or at least until after the recording of the Tax Collector’s Deed, Crovo or the City from taking any action at all in regard to this tax sale. As a result, the plaintiff and Homeowners argue that Crovo could not have legally complied with the necessary statutory prerequisites under § 12-157. Any actions undertaken by Crovo, therefore, render the tax sale and subsequent recording of the Tax Collector’s Deed either void ab initio or voidable. For the reasons set forth below, the court does not agree.
The court first reviews the language of the TRO. In the Previous Case, Judge Marano issued the TRO on March 10, 2015. This TRO applied only to Crovo and his "agents and/or employees." The TRO commanded Crovo and his agents to "adjourn the subject tax sale" and enjoined them, "henceforth and until further order of this court, from taking any such additional action related to the tax sale of the subject property located [at] 83-87 Harwinton Avenue, Torrington, CT."
By its very language, the court finds that the TRO applies only to Crovo and his agents and employees. It does not, therefore, apply to restrict the actions of the City or of the Gilsons. As a result, the TRO cannot be used as a basis to undo the tax sale because of any actions undertaken by the City or Gilson. Second, by its very language, the TRO directed Crovo to adjourn the tax sale. The uncontroverted facts listed above reveal that that is indeed what Crovo did. He adjourned the tax sale multiple times until Judge Danaher dismissed the Previous Case. The plaintiff and Homeowners argue that Crovo violated the TRO by rescheduling the tax sale for dates after adjournments. However, § 12-157(b) contemplates that a tax collector will select and publish an adjourned date, a date to which the tax sale is continued, upon adjournment. The adjourned date informs the kind of publication of the adjournment. If the adjourned date is more than three days after the original date, written notice must be provided, postage prepaid, to the delinquent taxpayer and each mortgagee. General Statutes § 12-157(b). If the adjourned date is less than three days out, notice may be effectuated of the adjournment either orally or by posting a written notice at the time and place previously designated for the tax sale. Id. Based upon that method of adjournment prescribed by this statute, Crovo actually complied with the TRO.
The court recognizes, as the plaintiff points out in her brief, # 235, p. 7, that the court commented on the record that Crovo’s rescheduling of the tax sale "seems to go a step beyond what was prohibited by Judge Marano." However, having now carefully reviewed what Crovo did in light of the guidance of General Statutes § 12-157 on how to adjourn a tax sale, the court realizes that its comment in this regard was, simply that, a comment, and did not constitute a finding of fact or a conclusion of law.
The language of the TRO also states that it will remain in place "until further order of the court." Judge Danaher’s May 22, 2015 decision to dismiss the Previous Case due to lack of personal jurisdiction constitutes such "further order of the court." Because Judge Danaher’s decision resulted in a dismissal, a final judgment, the conclusion that the TRO became ineffective on May 22, 2015 is buttressed by case law. Our Supreme Court has held that injunctions that are "interlocutory in character ... [become] inoperative and terminat[e] with the rendition of the final judgment." Nowell v. Nowell, 157 Conn. 470, 482, 254 A.2d 889, cert. denied, 396 U.S. 844, 90 S.Ct. 68 (1969). Drawing upon Nowell, a trial court applied this holding to temporary restraining orders. "[A] temporary restraining order is by its very terms a temporary order. Such orders are interlocutory in character and they become inoperative and terminate with the rendition of the final judgment." Park City Realty v. Zoning Commission of Stratford, Superior Court, judicial district of Fairfield, Docket No. CV-306367-S (February 27, 1995, Levin, J.) (13 Conn.L.Rptr. 526, 527). This fact is true even though the losing party had requested the Appellate Court to take the appeal thereof. As a result, a temporary restraining order does not automatically continue after the court renders a judgment of dismissal on the merits. Briskin v. Chatterjee, Superior Court, judicial district of Fairfield, Docket No. CV-96-0329155-S (March 31, 1998, Skolnick, J.) (21 Conn.L.Rptr. 606, 607).
Despite the fact that the plaintiff claims that she told someone that she was going to file an appeal of Judge Danaher’s dismissal of the Previous Case, she did not file a notice of intent to appeal, or an appeal, or otherwise take any formal action with the court to try to prolong the vitality of the TRO after that date. Similarly, the plaintiff did not move for reconsideration of Judge Danaher’s decision. No automatic stay applied during the period in which the plaintiff could have appealed under Practice Book § 61-11 because there was no pending proceeding to enforce or carry out a judgment or order.
For all of these reasons, the court concludes that the TRO became ineffective upon the dismissal of the Previous Case, on May 22, 2015.
The court notes that Crovo did not proceed with the final notice giving rise to the ultimate tax sale or with the tax sale itself until after Judge Danaher dismissed the Previous Case.
The only remaining argument for the plaintiff is her claim that Crovo violated the TRO by creating an affidavit of debt on May 20, 2015. The affidavit in question, found as filing # 125 in the Previous Case, was, in fact, executed by Crovo on May 20, 2015, prior to the dismissal of the Previous Case. However, it was not filed with the court until May 26, 2015, after the Previous Case was dismissed, and there was no evidence that it was ever published to or shared with anyone prior to May 26, 2015. The plaintiff has not made an argument as to how Crovo’s private creation of an affidavit of debt could have harmed the plaintiff, and the court can think of no way it could have. As mentioned above, the court will not employ the procedure of a declaratory judgment to decide purely abstract or academic issues. The court will only issue a declaration where there is an "actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement ... [and], the determination of the controversy [is] capable of resulting in practical relief to the complainant ..." (Citations omitted; internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 812-13, 967 A.2d 1 (2009). It is important to note that Crovo’s private execution of an affidavit of debt did not cause the plaintiff to sustain any legal or equitable damage. Similarly, Crovo’s private execution of an affidavit of debt does not create a situation in which the court may issue a declaration because this private execution did not create a bona fide and substantial question or issue in dispute or give rise to a determination that can result in practical relief for the plaintiff.
For all of the above stated reasons, the court concludes that any claimed violations of the TRO by Crovo cannot serve to create any issue that could conceivably challenge the legality or efficacy of the tax sale or the Tax Collector’s Deed, or the recording thereof.
E. Challenges to the Tax Sale Under § § 12-157 and 12-159
1. Attacks on Crovo’s Authority
The plaintiff and Homeowners have argued that Crovo, the City and, in some instances, the Gilsons have failed to comply with all of the necessary, statutory preconditions for a municipal tax sale and that, as a result, the tax sale should be voided, and the plaintiff and Homeowners awarded damages arising from the invalid tax sale.
The plaintiff and Homeowners raise a series of challenges to Crovo’s authority to act as tax collector at the time of the tax sale, June 1, 2015, and thereafter, based upon the fact that Crovo’s contract with the City expired the day before the tax sale took place. The plaintiff and Homeowners contend, for example, that Crovo was no longer the City’s tax collector on June 1, 2015 and lacked authority to act as such on that day and thereafter. Flowing from this premise, the plaintiff and Homeowners further challenge the validity of any documents, including the Tax Collector’s Deed, which represent that Crovo was the tax collector at any time after May 31, 2015, that Crovo was acting in the name of or on behalf of the City, or that the City was owed taxes after the date on which Crovo advanced them. The plaintiff and Homeowners additionally argue that Crovo, after May 31, 2015, lacked the authority to transfer the Property or, otherwise affect record title to it. These arguments, however, misapprehend the legal and contractual authority granted to Crovo as tax collector.
As discussed above, 21 Spec. Acts 7, No. 4, § § 4 and 5 (1931) authorized the City to hire a private tax collector for a four-year term. The special act contemplated that the tax collector would advance the City taxes assessed in a tax year, and that once the tax collector had so advanced the City taxes due, the tax collector, even after his term expired, could pursue the unpaid taxes "subrogated to all rights of action of the collection of any unpaid taxes ... in the name of the town or city ..." Id. Under the prevailing special act, therefore, Crovo was authorized to collect any taxes that he had advanced to the City subrogated to all of the City’s rights and in the name of the City, even after his contract expired.
The special act indicates that all of the actions discussed above take place when the tax collector has a "successor."
This authority is reiterated in Crovo’s last contract with the City. As mentioned supra, paragraph 1.8 of the contract provided that "upon the expiration of the terms of this agreement ... ROBERT CROVO TAX COLLECTOR shall retain all tax collector powers so as to permit him to continue to collect those unpaid bills which are due to him."
The uncontroverted facts reveal that Crovo had advanced the City the plaintiff’s unpaid taxes in question, that these taxes included taxes due through the 2013 Grand List, which was still within the time period of Crovo’s last contract, and that Crovo was authorized to collect these taxes under his contract (as well as under the special act) in the name of the City, and was fully subrogated to all rights of the City to pursue collection. In other words, Crovo remained the tax collector of the City for purposes of pursuing the plaintiff’s unpaid taxes under the special act and City contract.
2. Attacks on the Tax Sale and Subsequent Transfer of the Property to the Gilsons under § § 12-157 and 12-159
General Statutes § 12-157 sets forth the detailed, statutory mechanism pursuant to which a municipal tax sale may take place. "When a collector levies one or more tax warrants on real estate, he or she shall prepare notices thereof, containing the name of the taxpayer, a legal description of the real property or citation to an instrument in the land records, an assessor’s map or another publicly available document identifying the real property’s boundaries, the street address, if such real property has one, the amount of the tax or taxes due, including any interest and charges attributable to the property as of the last day of the month immediately preceding the notice, a statement that additional taxes, interest, fees and other charges authorized by law accruing after the last day of the month immediately preceding the notice are owed in addition to the amount indicated as due and owing in the notice and the date, time and place of sale ..." General Statutes § 12-157(a). "At the time and place stated in such notices ... such collector (1) may sell at public auction to the highest bidder all of said real property, to pay the taxes with the interest, fees and other charges allowed by law ... or (2) may sell all of said real property to his municipality if there has been no bidder or the amount bid is insufficient to pay the amount due." General Statutes § 12-157(c).
Our Appellate Court has held that the "power to sell land for delinquent taxes is strictly construed; the tax collector must substantially, if not strictly, comply with all statutory provisions." Associates Financial Services of America, Inc. v. Sorensen, 46 Conn.App. 721, 726-27, 700 A.2d 197 (1997), cert. dismissed, 245 Conn. 168, 710 A.2d 769 (1998). Under the uncontroverted facts discussed above, Crovo has substantially, if not strictly, complied with the provisions of § 12-157. The court finds that one aspect of non-compliance is the lack of written notice to the plaintiff and Homeowners under Sec. 12-157(b) in the days immediately before the tax sale. Since the tax sale had been adjourned prior to June 1, 2015, Section 12-157(b) governs. Although Crovo provided proper public notice of the adjournments both verbally and by postings of written notice, subsection (b) also requires that if "the adjourned date is set for a date more than three days from the date of the ... rescheduled sale date, the tax collector shall provide a postage prepaid written notice of the new time and place of the sale to the delinquent taxpayer and each mortgagee ..." Because the last scheduled sale date was May 27, 2015, and because June 1 is four days later, Crovo should have provided written notice via a prepaid postage letter to the plaintiff and to Homeowners. As the court will discuss below, however, under Section 12-159 Gen. Stat., this small aspect of noncompliance has no effect on the validity of the tax sale or subsequent conveyance.
The plaintiff also raises three additional concerns. One is about the time of the tax sale. One notice stated that it would take place at 6:00 p.m., but the tax sale actually took place at or shortly after 4:00 p.m. on June 1, 2015. The other is that the mayor did not receive proper notice. The third is that Crovo has charged illegal fees. Each of these claims is baseless and does not raise a genuine issue of material fact as to the validity of the tax sale and conveyance in this case. The document cited by the plaintiff as to the incorrect time was published in a newspaper advertisement announcing the sale after the June 1 sale took place, on June 10, 2015. Having been published after the sale, the advertisement could have had no conceivable effect on the sale. The issue of the mayor’s notice is not one that the plaintiff has standing to raise; the relationship between the City and Crovo was established by their contract, an agreement to which the plaintiff was not a party. The plaintiff has put forth no admissible evidence of Crovo charging illegal fees. However, even if there were evidence of any of these claims of noncompliance, such noncompliance would not negatively impact the tax sale, because of the operation of Section 12-159.
Under General Statutes § 12-159, "[a]ny deed, or the certified copy of the record of any deed, purporting to be executed by a tax collector and similar, or in substance similar to the above [a form set forth in § 12-158], shall be prima facie evidence of a valid title in the grantee to the premises therein purported to be conveyed ... 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 the sale of property therefore, 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 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 that such property was by law liable to be sold to satisfy such tax. The fact that the collector may have charged or received illegal fees upon such sale shall not impair the sale’s validity."
Our Appellate Court has held that unless the challenging party can show that (1) the tax collector failed to mail it proper "notice of sale and that [the challenging party] did not have actual notice of the sale [six months] after it was made, or (2) that the property was not ‘by law liable to be sold to satisfy the tax," then [the] proffer of the tax collector’s deed [by the purchaser] is prima facie evidence of its valid and unencumbered title to the subject property." (Emphasis in original.) Associates Financial Services of America, Inc. v. Sorensen, supra, 46 Conn.App. 730.
In this case, for the following reasons, the proffer of the tax collector’s deed is prima facie evidence of the validity of the tax sale and of the Gilsons’ unencumbered title to the Property.
As discussed supra, the tax collector’s deed was signed by Crovo, acting as tax collector. The court has compared this tax collector’s deed with the form found in § 12-158 and concludes that Crovo’s tax collector’s deed in this case is "similar, or in substance similar" to the form found in § 12-158. Although the plaintiff and Homeowners did not receive notice of the tax sale, the uncontroverted facts demonstrate that each received notice of the tax sale having taken place no later than June 15, 2015, well within the six-month period set forth in § 12-159.
The only remaining question is whether, under § 12-159, the Property was "by law liable to be sold to satisfy the tax." There is a paucity of case law interpreting this provision in § 12-159. However, this court adopts the well-reasoned trial court opinion of JJT & M, Inc. v. Oxford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-13-6013721-S (January 31, 2014, Moran, J.T.R.) (57 Conn.L.Rptr. 569). In JJT & M, after engaging in comprehensive statutory construction, the court held that "the focus of this exception thus appears to be whether the property itself can be used to satisfy the tax in question rather than whether taxes themselves] were proper." Id., 570-71. For example, real estate may not be sold solely for the purpose of collecting water or sanitation charges under Conn. Gen. Stat. § 12-162(b)(2). Id. Therefore, if a town tax collector attempted to sell real estate solely to collect water or sanitation charges, the land in question would not "by law [be] liable to be sold to satisfy the tax" under § 12-159.
Under the holding of JJT & M, the issue is whether the law allows the property at issue to be sold at a tax sale to satisfy the tax obligations at issue. In this case, § 12-157 permits the Property to be sold, legally, under § 12-159, to satisfy the taxes at issue.
For the abovementioned reasons, under § 12-159, the proffered tax collector’s deed serves as prima facie evidence that the tax sale was valid and entirely effective to pass unencumbered title to the Gilsons. Neither the plaintiff nor Homeowners have presented any evidence that would present a genuine issue of material fact as to the validity of the tax sale or the fact that the Gilsons have received unencumbered title to the Property, as they must do to defeat this motion for summary judgment. Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
3. Quiet Title, Slander of Title, Abuse of Process and Forgery
As mentioned above, the plaintiff and Homeowners have argued that the actions of Crovo, the City and/or the Gilsons constitute a cloud on their title, a slander of their title, an abuse of process and forgery. The court will review these claims seriatim .
a. Quiet Title
General Statutes § 47-31 is the statute governing quiet title actions.
General Statutes § 47-31(a) provides in relevant part: "An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff’s claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to claim up all doubts and disputes and to quiet and settle the title to the property ..."
General Statutes § 47-31(f) provides: "The court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property."
Under the operation of § 12-159, and the holding of Associates Financial v. Sorensen, supra, 46 Conn.App. 726-27, as discussed in the preceding section, title has passed legally and in an unencumbered fashion to the Gilsons. Therefore, there is no genuine issue of material fact as to any issues related to quieting title in favor of the plaintiff or Homeowners. Under the uncontrovertible facts of this case, the plaintiff and Homeowners no longer have any interest in the Property.
b. Slander of Title
Slander of title is a tort. "A cause of action for slander of title consists of the uttering or publication of a false statement derogatory to the plaintiff’s title, with malice, causing special damages as a result of diminished value of the plaintiff’s property in the eyes of third parties. The publication must be false, and the plaintiff must have an estate or interest in the property slandered. Pecuniary damages must be shown in order to prevail on such a claim." (Citation omitted; internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium Ass’n, Inc., 63 Conn.App. 657, 669-50, 778 A.3d 237 (2001).
Because, as discussed above, under the operation of § § 12-157 and 12-159, and the holding of Associates Financial v. Sorensen, supra, 46 Conn.App. 726-27, title to the Property passed to the Gilsons upon the running of the six-month redemption period. As a result, there is no genuine issue of material fact as to the slander of title issues raised by the plaintiff and/or Homeowners. At the time of the recording of the Tax Collector’s Deed on the land records, title to the Property rested, in actual fact, with the Gilsons. Moreover, after this court dissolved the temporary restraining order in this case, there was no legal impediment to Crovo recording the Tax Collector’s Deed on the land records.
Moreover, in regard to the Gilsons, all that they did was purchase the Property. Having not been involved in any other aspect of the process, there is not a scintilla of material fact to suggest that they slandered title.
c. Abuse of Process
The plaintiff has also alleged that Crovo, the City and the Gilsons abused process. As discussed supra, under Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 773, 802 A.2d 44 (2002), "the gravamen of the action for abuse of process is the use of a legal process ... against another primarily to accomplish a purpose for which it is not designed ..." (Internal quotation marks omitted). The uncontrovertible evidence in this case is that (1) the Gilsons did nothing but purchase the Property at the tax sale and (2) that Crovo, and by extension, the City, used this solely for the purpose for which it was designed; e.g., to collect overdue municipal taxes. Therefore, there is no genuine issue as to the abuse of process claims raised by the plaintiff and Homeowners.
d. Forgery
The plaintiff has also alleged forgery, a violation of Conn. Gen. Stat. § 52-565, against Crovo and the City. Under this statute, any "person who falsely makes, alters, forges or counterfeits any document, or knowingly utters, as true, any document falsely made, altered, forged or counterfeited, shall pay double damages to any party injured thereby." She claims that the Tax Collector’s Deed was a forgery because the TRO prevented Crovo from following § 12-157 and because the Property was not legally liable to be sold under § 12-159. Previously in this decision, this court has decided that the TRO had no effect after May 22, 2015 and that the Property was legally liable to be sold under § 12-159. The plaintiff has also alleged that the Tax Collector’s Deed was forged because Crovo was not the tax collector on June 1, 2015 and that Crovo could not have acted in the name of or for the City after May 31, 2015. The court has decided differently, as set forth above. The plaintiff has also pleaded that the City’s employee, a notary, knowingly and falsely notarized the Tax Collector’s Deed. This court, Moore, J., has already held that the document only "avows that Crovo is the person he claims to be," (Order # 239.10), and the court has found, supra, that Crovo was the tax collector for purposes of collecting these taxes. Therefore, no genuine issue of material fact exists; no forgery was committed by either Crovo or the City in the execution or notarization of the Tax Collector’s Deed.
V. Conclusion
For all of the above-mentioned reasons, the court grants the motions for summary judgment filed by Crovo, the City, and the Gilsons (with the exception of count five of the cross complaint) and denies the motions for summary judgment filed by the plaintiff and Homeowners. As explained above, Crovo brought his motion for summary judgment in regard to all of the counts in the operative complaint and in the cross complaint that were brought against him. As a result, neither the plaintiff nor Homeowners has any pending claims against Crovo. Judgment shall enter in favor of Crovo and against the plaintiff and Homeowners in regard to their claims against Crovo. Judgment shall enter in favor of the Gilsons and against the plaintiff in regard to counts one through five, inclusive, and eight through ten, inclusive, of the operative complaint. These counts comprise all of the plaintiff’s claims against the Gilsons in the operative complaint. The plaintiff, therefore, has no pending claims against the Gilsons. Judgment shall enter in favor of the City and against the plaintiff in regard to counts five and seven through twelve, inclusive, of the operative complaint. The only remaining claims brought by the plaintiff against the City in the operative complaint are those found in the declaratory judgment counts, counts one through four, inclusive. Homeowners did not move for summary judgment as to the plaintiff’s counts against it in the operative complaint. That means that the plaintiff’s claims against Homeowners, as alleged in counts one through three, inclusive, as well as counts five and nine of the operative complaint still exist. Because neither the City nor the Gilsons moved for summary judgment on the cross complaint, the cross complaint remains as to the City and the Gilsons.
Although judgment does not enter in favor of the City and the Gilsons in this memorandum of decision, it enters into their favor in orders # 290.10 and # 291.20, respectively.
SO ORDERED.