McCullough v. Town of Rocky Hill

• Decision Date: 07 July 2020
• Docket Number: AC 41834
• Citation: 234 A.3d 1049,198 Conn.App. 703
• Court: Connecticut Court of Appeals
• Parties: Stephen C. MCCULLOUGH v. TOWN OF ROCKY HILL

198 Conn.App. 703

234 A.3d 1049

Stephen C. MCCULLOUGH

v.TOWN OF ROCKY HILL

AC 41834

Appellate Court of Connecticut.

Argued January 22, 2020

Officially released July 7, 2020

Stephen C. McCullough, self-represented, the appellant (plaintiff).

Melinda A. Powell, for the appellee (defendant).

Lavine, Elgo and Sheldon, Js.

ELGO, J.

The self-represented plaintiff, Stephen C. McCullough, appeals from the summary judgment rendered by the trial court in favor of the defendant, the town of Rocky Hill, on all twelve counts of his operative complaint. On appeal, the plaintiff raises several claims that do not merit substantive discussion.¹ The plaintiff further claims that the court improperly rendered summary judgment in favor of the defendant on (1) the intentional tort claims pleaded in his operative complaint and (2) his abuse of process claims. We affirm the judgment of the trial court.

The record, which we view in the light most favorable to the plaintiff for purposes of reviewing the trial court's rendering of summary judgment, reveals the following facts and procedural history. At all relevant times, the plaintiff owned a parcel of real property known as 140 Hayes Road (property) in the defendant municipality. In early 2012, the defendant enacted a municipal blight ordinance.² In the months that followed, various officials visited the property and discussed overgrowth with the plaintiff.

On August 27, 2012, town officials began mowing overgrown grass and removing shrubbery on land located between the plaintiff's property line and the curb of the adjacent street.³ Those efforts continued on August 28, 2012, when certain branches and trees were cut and removed from that area at the direction of Lisa Zerio, the defendant's tree warden. It is undisputed that the plaintiff did not voice any objection at that time. In his deposition testimony, the plaintiff stated that he initially assumed that the trees and branches were not on his property and that he had simply asked town officials not to "cut down any more than you have to ...."⁴

Weeks later, however, the plaintiff contacted Robert Ricard, a tree expert at the University of Connecticut. As a result of his communications with Ricard, the plaintiff came to believe that some of the cut branches and trees had been located on his property and that the defendant, by cutting them, had "disobeyed the tree laws." The plaintiff met with town officials in September, 2012, to express his displeasure, at which time he informed them of his intent to sue the defendant. The plaintiff contemporaneously sent a $400,000 invoice to the defendant's town manager for "tree and related damages."

At that time, the plaintiff had multiple years of outstanding property tax assessments from the defendant that he had not paid. In November, 2012, the defendant brought an action to foreclose municipal tax liens against the plaintiff (foreclosure action).⁵ Following a trial, the court found that the plaintiff had "paid no portion" of the property taxes duly assessed for the 2008 through 2013 tax years. Rocky Hill v. McCullough , Superior Court, judicial district of New Britain, Docket No. CV-12-6018310-S, 2015 WL 4571224 (Conn. Super. June 30, 2015). The court nevertheless found that, although the defendant had presented the sworn testimony of its tax collector, it "did not produce the original certificates [of liens] nor certified copies." Id. Its failure to do so, the court concluded, was "fatal to the [defendant's] case, as sufficient evidence to support a prima facie case was not offered ...." Id. The court thus rendered judgment in favor of the plaintiff in the foreclosure action on June 30, 2015. No appeal was taken from that judgment.

The plaintiff commenced the present action approximately two months later by service of process on September 4, 2015. On September 17, 2015, Kimberley A. Ricci, the defendant's zoning enforcement officer, sent the plaintiff a letter regarding an "unregistered/inoperable Mercedes-Benz" located on the property in violation of chapter 234 of the defendant's code of ordinances (code). Ricci's letter asked the plaintiff to "rectify this violation by either registering the vehicle or [storing] the vehicle under a covered structure ...." In his deposition testimony, the plaintiff admitted that he stored unregistered vehicles on the property and that the Mercedes-Benz in question was not registered at the time that Ricci sent the violation notice.⁶ There is no evidence in the record before us as to whether the plaintiff complied with that violation notice.

Over the next ten months, the plaintiff filed multiple amended complaints in response to the defendant's requests to revise. On August 17, 2016, the defendant moved to strike all twelve counts of the plaintiff's July 18, 2016 amended complaint. Following a hearing, the court issued a detailed memorandum of decision on January 24, 2017, in which it granted the motion to strike as to all but the first count of the complaint, alleging abuse of process.⁷

After obtaining multiple extensions of time to replead, the plaintiff filed the operative complaint, his twelve count substitute complaint, on April 24, 2017. Counts one and four of that complaint both alleged abuse of process in connection with the foreclosure action and the 2013 reassessment of the property, respectively. See footnote 5 of this opinion. Counts two and nine alleged intentional infliction of emotional distress. Count three alleged invasion of privacy on the basis of an illegal search of the property allegedly conducted by a member of the Rocky Hill Police Department in 2013. Count five alleged inverse condemnation and due process violations under the state and federal constitutions. Count six alleged trespass, and count seven alleged trespass to chattels, as well as an illegal search that the defendant's zoning enforcement officer allegedly conducted during the defendant's overgrowth remediation activities on the property on August 27, 2012. Count eight set forth another abuse of process claim predicated on the defendant's alleged "misuse of ... General Statutes § 8-12," and count ten alleged fraudulent misrepresentation. Count eleven concerned a municipal ordinance that required property owners to remove ice and snow from their sidewalks⁸ and alleged that the ordinance in question was an illegal enactment. Lastly, count twelve alleged an illegal search related to the September 17, 2015 violation notice regarding the unregistered Mercedes-Benz on the property.

In response, the defendant filed its answer and three special defenses. The first special defense alleged governmental immunity with respect to counts one through ten. In its second special defense, the defendant alleged that all twelve counts were barred by applicable statutes of limitations set forth in General Statutes §§ 52-577 and 52-584. The third special defense alleged that the plaintiff lacked standing to challenge the constitutionality of the municipal ordinance at issue in count eleven of the complaint.

On June 2, 2017, the court entered a scheduling order that, inter alia, obligated the defendant to file its motion for summary judgment by June 21, 2017. In accordance with that order, the defendant filed a motion for summary judgment on June 21, 2017, which was accompanied by a memorandum of law and eight exhibits.⁹ On that same date, the plaintiff filed a request for leave to amend his complaint, to which the defendant objected. By order dated July 31, 2017, the court denied the plaintiff's request "pending the outcome of the motion for summary judgment." The plaintiff then filed memoranda of law in opposition to summary judgment on September 25 and October 11, 2017,¹⁰ together with two documents purporting to be his own affidavits.¹¹

The court heard argument on the defendant's motion for summary judgment on October 16, 2017. It thereafter rendered summary judgment in favor of the defendant on all twelve counts of the operative complaint, as detailed in a memorandum of decision dated January 31, 2018. The plaintiff filed a motion seeking reargument and reconsideration, which the court denied, and this appeal followed.

As a preliminary matter, we note the well established standard that governs our review of the trial court's decision to grant a motion for summary judgment. " 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. ... [T]he moving party ... has the burden of showing the absence of any genuine issue as to all the material facts .... 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. ... Once the moving party has met its burden, however, the [nonmoving] party must present evidence that demonstrates the existence of some disputed factual issue. ... Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Citations omitted; internal quotation marks omitted.) Lucenti v. Laviero , 327 Conn. 764, 772–73, 176 A.3d 1 (2018).

I

We begin with the plaintiff's claims regarding certain intentional torts allegedly committed by the defendant.¹² On appeal, the plaintiff claims that the court improperly rendered summary judgment on those claims. The defendant, by contrast, submits that the court properly determined that the doctrine of governmental immunity barred those claims. We agree with the defendant.

The defendant's motion for summary judgment was predicated on General Statutes § 52-557n (a) (2), which...