Billewicz v. Town of Fair Haven

• Decision Date: 26 March 2021
• Docket Number: No. 20-173,20-173
• Citation: 254 A.3d 194
• Parties: Johnathan J. BILLEWICZ, et al. v. TOWN OF FAIR HAVEN
• Court: Vermont Supreme Court

254 A.3d 194

Johnathan J. BILLEWICZ, et al.

v.TOWN OF FAIR HAVEN

No. 20-173

Supreme Court of Vermont.

December Term, 2020

March 26, 2021

Reargument Denied May 3, 2021

Daniel R. Long and David M. Pocius of Paul Frank + Collins P.C., Burlington, for Plaintiffs-Appellants.

James F. Carroll and Kevin L. Kite of Carroll, Boe & Pell, P.C., Middlebury, for Defendant-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Pearson, Supr. J. (Ret.), Specially Assigned

EATON, J.

¶ 1. Plaintiffs Johnathan J. Billewicz, Michael W. Billewicz, J and M Investment Trust, and Lillian E. Billewicz appeal from the trial court's grant of summary judgment to defendant Town of Fair Haven. Below, plaintiffs sought damages and a declaratory judgment that deeds purporting to convey their properties to the Town following a tax sale are void. The court found their action was foreclosed by the one-year statute of limitations at 32 V.S.A. § 5294(4) for claims challenging the validity of a tax collector's acts. Plaintiffs argue that this was error because their claims are instead subject to the three-year statute of limitations for actions for the recovery of land sold at a tax sale under 32 V.S.A. § 5263. We affirm.

¶ 2. The relevant facts are undisputed for purposes of summary judgment. At issue in this case are four properties located in the Town of Fair Haven. In 2011, 2012, and 2013, the Town treasurer notified the Town collector of delinquent taxes that the plaintiffs—then the owners of the subject properties—owed various outstanding tax, water, and sewer charges associated therewith, and issued warrants commanding the tax collector to levy and collect the monies owed.

¶ 3. In 2013, the Town's tax collector, then Herbert Durfee III, sent notices to plaintiffs advising them that outstanding taxes were due with respect to each of the four properties and that tax-sale procedures would be commenced if they remained unpaid. Plaintiffs did not pay the taxes owed. Therefore, on November 26, 2013, Durfee mailed plaintiffs a notification indicating that the properties would be sold at a tax sale if the delinquent amounts were not paid before December 15, 2013. Two days before this deadline, plaintiffs entered into agreements with the Town wherein they promised to pay the taxes in installments. That same day, they furnished the Town with a check for $1500 which was to satisfy the first of these installments. The check was returned for insufficient funds. On December 30, Durfee sent plaintiffs letters advising that the check had been returned for insufficient funds and the four properties had therefore been forwarded to the Town's attorney for tax sale.

¶ 4. On February 5, 10, and 11, 2014, Durfee delivered copies of the notices of tax sale, warrants, tax bills, levies, and descriptions of the four properties to the Fair Haven Town Clerk; the documents were duly recorded in the Town's land records. On the same three dates, Durfee sent plaintiffs corresponding notices indicating that the four properties would be sold at a tax sale on March 18, 2014. Durfee published advertisements of the pending sale for three successive weeks in a newspaper of general circulation in the county and posted notices of the sale in the town hall.

¶ 5. Plaintiffs did not pay the delinquent taxes before the appointed time on March 18 and the sale proceeded. Plaintiffs did not attend. The Town was the only—and therefore, the winning—bidder for all four properties.

¶ 6. During the one-year period following the sale, plaintiffs did not exercise their statutory right of redemption. Accordingly, on April 1, 2015, Durfee executed four tax collector's deeds transferring the properties to the Town. The deeds were recorded in the Town land records. However, the reports of sale regarding all four properties were not recorded in the Fair Haven Town Clerk's office until November 30, 2017.

¶ 7. Plaintiffs do not dispute that the taxes were both validly assessed and delinquent as to all four properties, the resulting written notices of tax sale were sufficient and timely, and the tax sale was properly conducted. The only respect in which they allege the procedure followed by the Town deviated from the statutory requirements was that the reports of sale were not recorded within the thirty days of the tax sale as required under 32 V.S.A. § 5255.

¶ 8. Plaintiffs, proceeding pro se, filed the instant action on March 22, 2018. Therein, they asserted claims of quiet title, trespass to real property and to chattel, invasion of privacy, and conversion. Each claim was predicated on the theory that the tax deeds conveying the properties to the Town were void because the tax collector did not record the reports of sale within the thirty-day period following the tax sale.

¶ 9. The Town moved for summary judgment, arguing, inter alia, that plaintiffs’ claims were barred by the one-year statute of limitations applicable to actions questioning the validity of acts of a tax collector at 32 V.S.A. § 5294(4). Plaintiffs filed a cross-motion for summary judgment, arguing in relevant part that because their claim was one for the recovery of lands, it was instead subject to the more generous three-year limitations period of 32 V.S.A. § 5263.

¶ 10. The trial court found that there was no material dispute of fact and concluded that the Town was entitled to summary judgment as a matter of law because the plaintiffs’ challenge to the tax collector's deeds was subject to § 5294 ’s one-year limitation and therefore time-barred. In reaching this conclusion, the court characterized plaintiffs’ action as a taxpayer suit challenging an act related to the collection of a tax and concluded that it therefore fell within the purview of § 5294. It noted that this result was consistent with Turner v. Spera, in which the Court applied § 5294 to a taxpayer's suit seeking to void a tax collector's deed on grounds of defective notice. 140 Vt. 19, 433 A.2d 307 (1981). And, drawing guidance from a federal bankruptcy case, In re Brentwood Corp., the court reasoned that the three-year limitation at § 5263 applied only to persons other than taxpayers wishing to challenge a tax deed—for example, a mortgage-holder or other person claiming title under the taxpayer. See 157 B.R. 83 (Bankr. D. Vt. 1993).

¶ 11. Plaintiffs filed a motion to alter or amend the summary-judgment ruling, arguing that the court erred in concluding their claim was barred by the statute of limitations. The trial court denied the motion, explaining that both the plain language of the statute and Turner dictated the result. Plaintiffs, now represented by counsel, appealed.

¶ 12. The sole question before us is whether the trial court erred in granting summary judgment to the Town on the ground that plaintiffs’ action was time-barred by the one-year statute of limitations at § 5294(4). Plaintiffs argue that: (1) the plain language of § 5294(4) and § 5263 instead require application of the latter provision to this suit; (2) the trial court erred in concluding that the distinction between the two statutes of limitations is whether a taxpayer or a third party brings the action; (3) the trial court erred in concluding that Turner dictated the outcome; and (4) even if the plain language of these statutes is ambiguous, principles of statutory construction weigh in favor of applying § 5263 to this action.

¶ 13. "We review motions for summary judgment de novo, applying the same standard of review as the trial court." In re All Metals Recycling, Inc., 2014 VT 101, ¶ 6, 197 Vt. 481, 107 A.3d 895. Thereunder, summary judgment is granted if the moving party shows that there is no genuine dispute of material fact and that they are entitled to judgment as a matter of law. V.R.C.P. 56(a). The parties agree that there is no material factual dispute here; rather, the sole question on appeal is a legal one: whether the trial court was correct in concluding that plaintiffs’ claim is subject to § 5294(4), and thus time-barred, rather than subject to § 5263, and therefore timely filed. See Earle v. State, 170 Vt. 183, 185, 743 A.2d 1101, 1102 (1999) ("The question of which statute of limitations applies to [a] claim is one of law.").

¶ 14. "When interpreting statutory provisions, we begin with the plain language of the statute, and, if possible, resolve any questions on this basis alone." Clark v. DiStefano, 2018 VT 82, ¶ 8, 208 Vt. 139, 195 A.3d 379 (considering which of two statutes of limitation apply to an action). In interpreting statutes, our goal is to effectuate the intent of the Legislature. In re 204 N. Ave. NOV, 2019 VT 52, ¶ 5, 210 Vt. 572, 218 A.3d 24. If the statutory language is clear and unambiguous, we will enforce it according to its terms as an expression of that intent. Id. Only where the language creates uncertainty will we resort to canons of statutory construction to ascertain the underlying legislative intent. Shires Hous., Inc. v. Brown, 2017 VT 60, ¶ 9, 205 Vt. 186, 172 A.3d 1215.

¶ 15. Accordingly, our inquiry begins with the language of the statutory provisions at issue. Each of plaintiffs’ claims for damages and the recovery of the subject properties turns on the argument that Durfee did not satisfy the requirements of 32 V.S.A. § 5255. Under that provision, within the thirty days following a tax sale, the tax collector "shall make a complete return of his or her doings and file the same for record in the town clerk's office of the town wherein such land lies." 32 V.S.A. § 5255. The parties disagree over the ultimate legal significance of this omission, but the Town does not dispute that the procedure followed here fell short of the statute's requirements—although it points out that the omission was apparent in the Fair Haven Land Records on the thirty-first day following the tax sale, and therefore nothing precluded plaintiffs taking notice and challenging the tax collector's acts within a year of the dates of levy.

¶ 16. We consider first the...