Cornelius v. Rosario

• Decision Date: 11 September 2012
• Docket Number: AC 33178
• Court: Connecticut Court of Appeals
• Parties: FREDERICK CORNELIUS v. LYDIA ROSARIO ET AL.

FREDERICK CORNELIUS v. LYDIA ROSARIO ET AL.

AC 33178

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued April 16

officially released September 11, 2012

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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.Gruendel, Beach and Flynn, Js.

(Appeal from Superior Court, judicial district of

Hartford, Hon. Robert Satter, judge trial referee [motion

to strike]; Aurigemma, J. [motions for summary

judgment, judgment].)

James Colin Mulholland, for the appellant (plaintiff).

Joseph A. Marotti, for the appellees (named defendant et al.).

Opinion

BEACH, J. The plaintiff, Frederick Cornelius, appeals from the trial court's granting of a motion for summary judgment in favor of the defendants, the city of Hartford (city) and Lydia Rosario, the city's then tax collector,¹and denial of his motion for summary judgment.² The plaintiff claims that the court erred in (1) determining that he lacked standing to challenge the adequacy of notice to a predecessor in title of the real property at issue, (2) determining that the defendants satisfied the notice requirement of General Statutes § 12-157 (a), (3) concluding that the steps taken by the defendants to notify the plaintiff's predecessor in interest of the tax sale of that property, when the plaintiff failed to record his interest in the property, satisfied due process, (4) concluding that the defendants were not obligated to provide him with notice of the tax sale because his interest in the property was not reasonably ascertainable and (5) denying his request to testify at the hearing on the motions for summary judgment and then failing to continue the matter to allow him to submit affidavits. We agree with the plaintiff that he has standing to challenge the adequacy of notice to his predecessor in title. We disagree with his remaining claims and, therefore, affirm the judgment of the trial court.

The plaintiff initiated an action in 2008, in which he sought to quiet title and to nullify a tax sale of a parcel of real estate located at 78 Beacon Street in Hartford (property). The plaintiff claimed that the property was illegally seized and sold without providing him with notice of the tax sale as required by § 12-157. The defendants filed a motion for summary judgment in which they argued that the plaintiff undeniably failed to record his warranty deed, and, thus, the tax sale of the property was conducted consistently with the requirements of § 12-157 (a), which required that notice be provided only to those with recorded interests in the property. The plaintiff, on the other hand, filed a motion for summary judgment as to the city on the ground that it had not provided notice to Mercury Mortgage Company, Inc. (Mercury), the plaintiff's predecessor in title, in accordance with § 12-157 (a).

The following facts are undisputed. On November 22, 2004, the plaintiff, a sophisticated real estate investor, purchased the property from Mercury, as an investment property. Neither the plaintiff nor his attorney recorded the warranty deed reflecting the sale in Hartford's land records. The real estate taxes were not paid on the property from January 1, 2004, through July 1, 2007. The defendants filed tax liens against the property on June 11, 2004, May 2, 2005, June 16, 2006, and May 25, 2007. On July 12, 2007, the defendants executed a tax levy on the property for unpaid taxes in the amount of $18,698.94, and sold the property to the highest bidders at the tax sale. Prior to executing the tax sale, thedefendants attempted to provide notice to all record owners/taxpayers, lienholders, mortgagees and encumbrancers of the property after performing a search of the Hartford land records, city assessor's records and the tax division records to determine who was entitled to receive notice. The search of the records revealed that the owner of record was Mercury and that the law firm Hunt, Leibert, Chester & Jacobson, P.C. (Hunt Leibert), the Metropolitan District Commission (Metropolitan) and the city held liens on the property. There was no record of the plaintiff's interest in the property on Hartford's land records or in the assessor's records. Additionally, there was no record of the plaintiff ever having paid taxes on the property.

The defendants provided notice of the tax sale via certified mail to Mercury, Hunt Leibert and Metropolitan. Hunt Leibert and Metropolitan received notice of the tax sale. The notice to Mercury was returned as undeliverable. Attached to the defendants' motion for summary judgment was a copy of the undelivered letter, the authenticity of which was not contested. The letter was stamped: "RETURN TO SENDER NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD." The defendants attempted to find another address for Mercury and to locate an agent of Mercury. Ultimately, the defendants sent notice to Mercury's attorney, Hunt Leibert. The defendants did not provide notice to the plaintiff because his interest in the property did not appear of record. The court granted the defendants' motion for summary judgment and denied the plaintiff's motion for summary judgment. This appeal followed.

We first set forth the applicable standard of review. "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court's decision to grant [a party's] motion for summary judgment is plenary." (Internal quotation marks omitted.) Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 318, 984 A.2d 676 (2009).

I

The plaintiff first claims that the court erred in hold-ing that he lacked standing to challenge the adequacy of notice to Mercury. We agree.

The ground presented by the plaintiff in his motion for summary judgment was that the defendants had not provided notice to Mercury in accordance with § 12-157 (a). In denying the plaintiff's motion for summary judgment, the court determined that the plaintiff lacked standing to assert Mercury's rights.

The plaintiff argues that in ruling that he lacked standing to challenge the adequacy of Mercury's notice, the court overlooked General Statutes § 12-159. He argues that § 12-159 authorizes a person whose predecessor in title was entitled to notice of the tax sale under § 12-157 to contest the validity of the notice given to his or her predecessor in title.

"It is axiomatic that aggrievement is a basic requirement of standing, just as standing is a fundamental requirement of jurisdiction. If a party is found to lack [aggrievement], the court is without subject matter jurisdiction to determine the cause. . . . There are two general types of aggrievement, namely, classical and statutory; either type will establish standing, and each has its own unique features. Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Citations omitted; internal quotation marks omitted.) Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 91-92, 971 A.2d 1 (2009). "[T]o determine whether a party has standing to make a claim under a statute, a court must determine the interests and the parties that the statute was designed to protect. . . . Essentially the standing question in such cases is whether the . . . statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief. . . . The plaintiff must be within the zone of interests protected by the statute. . . . It has been [noted] that the zone of interests test bears a family resemblance to the scope of the risk doctrine in the law of torts. . . . In tort law, it is not enough that the defendant's violation of the law caused injury to a plaintiff. The defendant must also owe that plaintiff a duty. Similarly,...