O’Brien-Kelley, Ltd. v. Town of Goshen

• Decision Date: 29 November 2017
• Docket Number: LLICV166014194S
• Court: Connecticut Superior Court
• Parties: O’BRIEN-KELLEY, LTD. v. TOWN OF GOSHEN et al.

O’BRIEN-KELLEY, LTD. v. TOWN OF GOSHEN et al.

No. LLICV166014194S

Superior Court of Connecticut, Judicial District of Litchfield, Torrington

November 29, 2017

UNPUBLISHED OPINION

OPINION

Bentivengna, J.

This matter arises as a result of an alias tax warrant for delinquent municipal real estate taxes pursuant to General Statutes § 12-162 and a subsequent dispute regarding a state marshal’s collection fee or percentage pursuant to the alias tax warrant.

When this action was originally commenced, the defendants were Town of Goshen and Rebecca M. Juchert-Derungs (tax collector) (collectively the defendants), as well as Arthur R. Quinn III (state marshal).^[1] On May 4, 2017, the plaintiff filed a withdrawal of its claims against the defendants and a request for leave to amend complaint and attached a second amended complaint.^[2] The matter remains pending against Quinn and is scheduled for trial on February 27, 2018. On June 5, 2017, the defendants filed this motion for an award of attorneys fees and costs incurred in the defense of this action pursuant to General Statutes § 12-140 and Practice Book § 11-21. The matter was argued at short calendar on November 13, 2017.

" The common-law rule in Connecticut, also known as the American Rule, is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception ." (Emphasis added.) (Internal quotation marks omitted.) Commissioner of Environmental Protection v. Mellon, 286 Conn. 687, 695, 945 A.2d 464 (2008). Another such exception is the inherent authority of a trial court " to assess attorneys fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons." Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 253, 828 A.2d 64 (2003).

The defendants assert that the town incurred costs for defending a civil action brought as a result of an alias tax warrant and, therefore, § 12-140 allows for the recovery of attorneys fees and costs based on the withdrawal filed by the plaintiff. In response, the plaintiff contends that basis of its claim is to challenge the state marshal’s unearned fee not the alias tax warrant.

" The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ... In seeking to determine that meaning, General Statutes § 1-2z directs us to first consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ... Statutory construction concerns a question of law over which we exercise plenary review." (Citation omitted.; internal quotation marks omitted.) Cornelius v. Rosario, 167 Conn.App. 120, 126, 143 A.3d 611 (2016).

Section 12-140 provides in relevant part: " All reasonable and necessary costs or expenses ... for all fees and costs incurred by the municipality in defending any civil action brought as a result of ... an alias tax warrant ... and for any other fees and expenses incurred or otherwise provided by law shall be paid by the delinquent taxpayer or as provided in section 12-157 ." (Emphasis added.) Section 12-140 allows for the award of fees, costs and expenses of tax collectors and tax sales incurred by a municipality in successfully defending any civil action brought as a result of a tax sale or an alias tax warrant or which seeks to enjoin or declare unlawful any tax sale or alias tax warrant. See Cornelius v. Rosario supra, 167 Conn.App. 127.

In order to be awarded attorneys fees and costs under § 12-140, the defendants would arguably have to prove: (1) the plaintiff was a delinquent taxpayer; (2) an alias tax warrant was issued by the municipality; (3) a civil action was brought as a result of an alias tax warrant; (4) the municipality incurred fees and costs in defending the civil action; (5) the municipality successfully defended the civil action; and (6) the attorneys fees and costs were reasonable and necessary. See § 12-140; see also Cornelius v. Rosario, supra, 167 Conn.App. 127 (2016) (concluding that § 12-140 allows the award for attorneys fees " incurred by tax collectors in successfully defending actions challenging tax sales"). The court does not agree with the plaintiff’s argument that because this action was brought as the result of the state marshal keeping an unearned fee, the defendants are not entitled to costs and attorneys fees pursuant to § 12-140. Section 12-140 provides for the award of attorneys fees and costs " in defending any civil action brought as a result of ... an alias tax warrant ..." (Emphasis added.)

The first four requirements have been satisfied. The plaintiff has acknowledged that it is the owner of the property and was a delinquent taxpayer. A valid alias tax warrant was issued pursuant to General Statutes § 12-162 on April 26, 2016. The plaintiff brought a civil action against the defendants and the state marshal as a result of the alias tax warrant. The original complaint was returned on September 27, 2016, and alleged three counts: conversion, constitutional violation of rights and declaratory judgment. The defendants demonstrated that the municipality incurred fees and costs in defending the civil action. An evidentiary hearing would be needed, however, to determine whether the attorneys fees and costs were reasonable and necessary.

The court must, therefore, determine whether the withdrawal of the claims against the defendants is the equivalent of successfully defending a civil action. In Cornelius, the plaintiff filed a quiet title action and a declaration that the tax sale of the property was null and void. Cornelius v. Rosario, supra, 167 Conn.App. 124. The defendant filed two motions for attorneys fees and costs pursuant to § 12-140. Id., 124-25. The second motion was filed after the court entered judgment in the defendant’s favor and the defendant prevailed on appeal. Id., 125-26. In Cornelius, the defendant was entitled to seek the recovery of some, but not all, of the attorneys fees incurred in defending the plaintiff’s action. Id., 127. This case is arguably distinguishable from Cornelius given that judgment was not entered in favor of the defendants. Instead, the plaintiff filed a withdrawal of the claims against the defendants.

General Statutes § 52-80 provides in relevant part: " The plaintiff may withdraw any action ... before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any such action, the plaintiff may withdraw such action ... only by leave of court for cause shown." " If the requisite hearing has not commenced, then the plaintiff’s right to withdraw is ‘absolute and unconditional.’ " Friedman v. Gomez, 172 Conn.App. 254, 263, 159 A.3d 703 (2017).

Here the plaintiff’s withdrawal of this action would be considered a voluntary withdrawal. See Stephenson’s Connecticut Civil Procedure, 3rd Ed. § 94. The plaintiff’s right to withdraw the action against the defendants is not otherwise curtailed by statute. The withdrawal was filed prior to the trial...