Opinion
No. CV07-5004690S
May 23, 2008
MEMORANDUM OF DECISION RE MOTION TO DETERMINE BOND AND APPEARANCE DATED MARCH 24, 2008
On May 15, 2007, the plaintiffs, Straw Pond Associates and Straw Pond Real Estate, LLC, filed a three-count complaint against the defendant, the Town of Middlebury. On January 10, 2008, the following six individuals (hereinafter movants): Patrick DeAngelis, Kathleen DeAngelis, Wayne Milano, Vincent Tafuto, Sarah E. Kenyon and Keli-Ann Bollard, each filed an appearance, through their attorney, Dennis M. Buckley, in order to defend the cause of action claimed by the plaintiffs against the defendant. The movants also filed a motion to determine bond, in which they requested that the court, pursuant to General Statutes § 52-187 and Practice Book § 8-8 indicate what "bond with surety" it found acceptable.
On January 17, 2008, the plaintiffs filed an objection to the movants' motion to determine bond and moved to strike the appearance of Attorney Buckley for all six movants. The defendant joined the plaintiffs' objection on January 24, 2008. On March 12, 2008, the movants filed a reply to the motion to strike their appearance. The court heard oral argument on the matter on March 24, 2008.
Section 52-187 provides: "If, in any action against a community, any individual member of the community appears to defend, he shall procure bond with surety to the acceptance of the court in which the action is pending to save the community harmless from all costs which may arise by reason of the appearance. The bond shall be payable to the community and be filed in the court. If the individual member successfully defends against the action, he shall be entitled to the costs recoverable from the plaintiff unless the community also appeared and incurred the costs of the defense." Practice Book § 8-8 provides: "If, in any action against a community, any individual member of such community appears to defend, he or she shall procure bond with surety to the acceptance of the court in which the action is pending, to save such community harmless from all costs which may arise by reason of such appearance, which bond shall be payable to such community and be filed in such court. Any such individual member who successfully defends against such action shall be entitled to the costs recoverable from the plaintiff unless the community likewise appeared and incurred the costs of such defense. (See § 52-187 and annotations.)"
In their motion to determine bond and reply memorandum, the movants assert that § 52-187 and § 8-8 confer on them the right, as members of the Middlebury community, to appear in the present action, so long as they post bond with surety to save the community harmless from all costs which may arise by reason of their appearance. The plaintiffs and defendant, in their memorandum in opposition, respond that duly appointed counsel has already appeared on behalf of the town of Middlebury, pursuant to the Town Charter, and the movants cannot usurp the role of that counsel.
Counsel for the Town of Middlebury appeared in the matter on June 13, 2007 (Law Offices of D'Angelo Forte through Attorney D'Angelo), July 12, 2007 (Tyler Cooper Alcorn through Attorney McCormack), and September 11, 2007 (Baker O'Sullivan Bliss PC through Attorney O'Sullivan, in lieu of Tyler Cooper Alcorn).
Both § 52-187 and § 8-8 presume that any individual member of the community, may, in fact, appear to defend the town. This presumption derives from the 1844 Supreme Court case of Beardsley v. Smith, 16 Conn. 368 (1844). In Beardsley v. Smith, supra, 16 Conn. 376, the Supreme Court of Errors held that under the common law, an execution upon a judgment against a town may be levied on the property of any one of its inhabitants. This principle of law was later affirmed in the cases of Union v. Crawford, 19 Conn. 331 (1848), and Nichols v. Ansonia, 81 Conn. 229, 70 A. 636 (1908). In Union v. Crawford, supra, 331, the court stated that "[a] judgment against a town, is a judgment against the inhabitants of the town; and the execution may be levied upon the private property of any one of them, at the election of the creditor. As a necessary consequence of such liability, every inhabitant of a town has a right to appear and defend against any claim made upon the town in an action at law." In Nichols v. Ansonia, supra, 638-39, the court permitted an intervening party to come into the case as a taxpayer based on the theory that under the law of Connecticut, any "taxpaying freeman of a city" may appear to defend in a suit for damages against the municipality, since technically his personal estate is liable to be levied on by a writ of execution based on a judgment against the municipality.
More recently, however, the viability of this principle has come into question. In Yale University v. New Haven, 21 Conn.Sup. 61, 63-64, 160 A.2d 493 (1960), the court, Doherty, J., initially acknowledged that technically, the law still provided that a taxpayer's personal estate is available to be levied on by writ of execution based on judgment against the municipality; and, therefore, a taxpayer may appear to defend in a suit against that municipality. The court held, however, that a taxpayer will not be permitted to oust duly appointed corporation counsel of a city of his office and thus usurp powers and duties conferred on corporation counsel under charter provisions of the city. Id. "[I]t appears to the court that if any taxpayer was permitted, as a matter of right, to intervene in cases such as the instant [case] . . . chaos would result. The desirability of limiting the number of litigants in cases involving a municipality is discussed by our Supreme Court of Errors . . . It is not alleged . . . that there is any collusion between the parties, nor that the defendant city is not represented by competent and able counsel, nor that the city or any taxpayer would be defrauded by the proposed judgment . . . [P]ublic officers are presumed to have performed their duties honestly and capably in carrying out the duties incident to their office." Id., 64-65. The court, therefore, denied the taxpayer's petition to intervene. Id., 65.
In Union v. Crawford, supra, 19 Conn. 331, the Court, before concluding, noted: "[B]ut . . . towns have the right, at their pleasure, to appoint agents or attorneys to take the immediate charge of their legal proceedings. As there is no evidence in this case, that there was any agent or attorney of the town of Union, specially authorized to appear in the suit under consideration . . . the selectmen . . . had the right to appear." In Nichols v. Ansonia, supra, 70 A. 639, the Court provided: "[I]t is manifest that every inhabitant of a town and every freeman of an incorporated city is not the defendant to an action against the [town] in the same sense as the defendant in an action between two individuals, and he has held not to be in a defendant for all purposes . . . The relation of such a defendant to the action against the [town], in view of the possibility of the [town] appearing by its duly constituted agent and all its corporators appearing individually, evidently calls for special rules regulating that relation. The position of such a defendant may doubtless be affected by provisions of particular charters, of the practice act, and of other existing statutes. It is not, however, necessary for the disposition of this motion to dismiss to consider how difficulties which might arise should be dealt with under our existing law."
Moreover, in Bradford v. Brennan, 42 Conn.Sup. 534, 631 A.2d 1165 (1992), the court, Blue, J., [ 7 Conn. L. Rptr. 513] called into question the very common-law doctrine upon which the principle that a resident may appear on behalf of a town lies, i.e, that an execution upon a judgment against a town may be levied on the property of any one of its inhabitants. The court, in examining the "ancient Connecticut doctrine . . . [of] Beardsley v. Smith, [ supra, 16 Conn. 376]," stated the following.
In Connecticut by common law or immemorial usage, the property of any inhabitant may be taken on execution upon a judgment against the town. Bloomfield v. Charter Oak Bank, 121 U.S. 121, 129, 7 S.Ct. 865, 30 L.Ed.2d 923 (1887). This doctrine has not been generally accepted. Meriwether v. Garrett, 102 U.S. 472, 501, 26 L.Ed. 197 (1880). In Rees v. Watertown, 86 U.S. 107, 22 L.Ed. 72 (1874), the Supreme Court held that the federal courts . . . do not possess the power to subject the property of municipal residents to an execution to satisfy a judgment against the municipality. It reasoned that, `this summary proceeding would involve a violation of the rights of the [citizen]. He has never been heard in court. He has had no opportunity to establish a defense to the debt itself, or if the judgment is valid, to show that his property is not liable to its payment . . . The proceeding supposed would violate that fundamental principle contained in chapter twenty-ninth of Magna Charta, and embodied in the Constitution of the United States, that no man shall be deprived of his property without due process of law — that is, he must be served with notice of the proceeding, and have a day in court to make his [defense] . . .
Rees involved a municipality in Wisconsin. The ancient common law of the New England states was not before the court. The court distinguished the peculiar New England tradition by stating that the suit in those [s]tates is brought in form against the inhabitants of the town, naming it. The individual inhabitants, it is said, may and do appear and defend the suit, and hence it is held that the individual inhabitants have their day in court, are each bound by the judgment, and that it may be collected from the property of any one of them . . . This was essentially the reasoning of the Connecticut Supreme Court in Beardsley v. Smith, supra, 377-79, as well.
Even as a technical matter, the distinction seized upon in Rees and Beardsley is clearly outmoded in Connecticut today. While before the Civil War, the writs in actions against municipalities may have issued against the inhabitants of towns, societies, and districts, as parties . . . this is no longer the case. The writ in the present case, for example, was issued against the [c]ity of Waterbury. Perhaps even more importantly, the notice assertedly received by the inhabitants whose property is supposedly subject to seizure would hardly comply with modern notions of due process . . . In a modern class action, for example, it is fundamental that members of the class affected be given proper notice of the pendency of the action and subsequent proceedings in it . . . As far as court and counsel are aware, no actual execution upon a municipal resident's property has occurred in Connecticut in this century.
(Citations omitted; internal quotation marks omitted.) Bradford v. Brennan, supra, 42 Conn.Sup., 543-45.
In the present case, duly appointed counsel has appeared on behalf of the defendant, pursuant to the Town Charter, and this court will not allow the movants to usurp the role of that counsel, pursuant to the holding in Yale University v. New Haven, supra, 21 Conn.Sup. 64-65. Moreover, this court does not foresee the possibility that should the plaintiffs win in their suit against the defendant Town, the execution of that judgment will be levied arbitrarily on the properties of various inhabitants of the Town of Middlebury. This court agrees with Judge Blue that "the notice assertedly received by the inhabitants whose property is supposedly subject to seizure would hardly comply with modern notions of due process." Bradford v. Brennan, supra, 42 Conn.Sup., 545.
Therefore, the movants' motion to determine bond for intervention purposes is denied and the plaintiffs' and defendant's objection to the appearance of Attorney Buckley for all six movants is sustained with prejudice.