White Sands Beach Ass'n, Inc. v. Bombaci

• Decision Date: 15 December 2006
• Docket Number: No. CV04-568713.,CV04-568713.
• Citation: 50 Conn.Sup. 577,950 A.2d 624
• Court: Connecticut Superior Court
• Parties: The WHITE SANDS BEACH ASSOCIATION, INC. v. Mary BOMBACI et al.

950 A.2d 624

50 Conn.Sup. 577

The WHITE SANDS BEACH ASSOCIATION, INC. v. Mary BOMBACI et al.

No. CV04-568713.

Superior Court of Connecticut, Judicial District of New London.

December 15, 2006.^*

Kepple, Morgan & Avena, P.C., Pawcatuck, for the plaintiff.

Jozus, Milardo & Thomasson, Middletown, for the defendants.

JOSEPH J. PURTILL, Judge Trial Referee.

This is an action by the plaintiff, The White Sands Beach Association, Inc. (White Sand),¹ a quasi-municipal corporation within the territorial limits of the town of Old Lyme, to foreclose tax liens on the property of the defendants, Mary Bombaci, Frank LaBella, Francis LaBella, Jr., Mary L. Green, Joseph W. LaBella and John L. LaBella.

The matter was reached for trial on October 18, 2005, when, in open court and on the record, the parties entered into a stipulation that the case should be bifurcated as follows: a judgment of strict foreclosure was entered on the tax liens for taxes due on July 1, 2000 July 1, 2001, July 1, 2002, and July 1, 2003, with interest through September 7, 2003. A law day was set for April 15, 2006.² The action to foreclose the lien for taxes due July 1, 2004, was withdrawn. The issue of attorney's fees and costs in the foreclosure action should be resolved subsequent to the conclusion of the court proceedings on the remaining bifurcated issues. As a part of the stipulation, the defendants were to file an amended counterclaim by October 28, 2005, raising certain agreed upon issues. Other procedural matters were agreed to in the stipulation, which was approved by the court.

Pursuant to the stipulation, the defendants filed an amended counterclaim on October 24, 2005. The first count of the amended counterclaim sets forth claims under General Statutes § 12-119, which provides a remedy "[w]hen it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set...." In support of this claim under § 12-119, the defendants allege that due to its failure to follow the requirements of the special act of the legislature allowing its formation, White Sand does not exist as a specially incorporated entity. It is further alleged that due to the failure to follow the requirements of the special act allowing White Sand to annex property not originally within the territory designated by the special act, the defendants' property was not incorporated into the jurisdiction of the district and, therefore, is not taxable by White Sand. The second count of the amended counterclaim sets forth a claim under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq, alleging that White Sand has engaged in unfair trade practices. The third count of the counterclaim alleges that the action of filing the tax liens in question and a lis pendens on the land records of Old Lyme by White Sand constituted a slander of the defendants' title to their real property.

On September 20, 2005, the defendants amended counts two and three of the counterclaim, and, on November 18, 2005, White Sand filed its answer denying the essential allegations of the counterclaim. An amended answer to the counterclaim was filed by White Sand on January 12, 2006, together with two special defenses. The first special defense alleges that some or all of the claims asserted by the defendants in the counterclaim were barred by laches. The second special defense alleges that some or all of the claims raised by the defendants with respect to taxes assessed prior to October 1, 2005, were barred by the statute of limitations contained in § 12-119.

For reasons hereinafter stated, the issues on the first count are found in favor of White Sand. This is determinative of the claims alleged in the second and third counts.

The issues came before the court for trial on September 6 and 8, 2006, and briefs were subsequently filed. Matters not briefed will be considered abandoned. Shaw v. Planning Commission, 5 Conn. App. 520, 525, 500 A.2d 1338 (1985).

The position of this case is somewhat unusual since we are proceeding primarily on the allegations of the counterclaim. The defendants have the burden of proof to establish the facts essential to their claims. Nikitiuk v. Pishtey, 153 Conn. 545, 552-53, 219 A.2d 225 (1966); see also Practice Book § 10-70(b).

I

A

The first issue that must be addressed is the claim raised by the defendants under § 12-119 that their property is not subject to taxation by White Sand because White Sand failed to follow the requirements of the special act, which allowed its formation, and, therefore, White Sand does not exist as a specially incorporated entity with the authority to levy taxes.

The General Assembly, at its January session of 1927, passed a special act entitled, "An Act Incorporating The White Sand Beach Association, Incorporated." 20 Spec. Acts 489, No. 475 (1927). This act was approved by the governor on June 22, 1927. Section 1 of No. 475 of the 1927 Special Acts provides as follows: "All owners of record of land within the limits hereinafter specified, in the locality known as `White Sand Beach', in the town of Old Lyme, are constituted a body politic and corporate by the name of The White Sand Beach Association, Incorporated, and they and their successors shall be a corporation in law with all the privileges set forth in section 3421³ of the general statutes, and the rights, privileges and duties hereinafter set forth."

Section 2 of No. 475 of the 1927 Special Acts set forth the territorial limits of the entity as described on a map of White Sand dated August, 1921, on file in the land records of Old Lyme.⁴ Further sections of the special act granted White Sand certain municipal functions and set forth the procedures that it should follow for its administration. Section 15 of No. 475 of the 1927 Special Acts provided that the territorial limits of White Sand should constitute a separate taxing district within the town of Old Lyme. Section 17 of No. 475 of the 1927 Special Acts provided that White Sand "shall have the power to lay taxes, not exceeding the rate of seven mills per annum, upon all real property subject to tax and located within the limits of said association...."

Section 22 of No. 475 of the 1927 Special Acts provided for the local ratification as follows: "This act shall become effective upon its adoption by a majority vote of all those owners of a freehold interest of land within the limits of said association herein set forth who shall be present at a meeting called for that purpose by the clerk of The White Sand Beach Association, Incorporated, by mailing a notice of such meeting to each of said land owners, so far as the names of the same may be obtained from the tax collector of the town of Old Lyme, at his, her or its last-known address, and by posting a notice thereof on the building containing the post office at Black Hall in said town, two weeks before the time of said meeting."

In evidence are the handwritten minutes of a special meeting of White Sand called to order on Saturday, July 23, 1927, at 7:30 p.m., with eighteen members present. A communication from J. Smith was read, noted and placed on file. The minutes also reflect the following action: "Motion made and seconded that the act incorporating White Sand Beach Association be accepted and adopted. So voted." Other routine business of White Sand was then conducted at the meeting.

At trial, the defendants called as an expert witness with extensive experience in municipal law, Attorney William Howard. Howard researched the formation of the corporation and looked into whether the procedural requirements set forth in § 22 of No. 475 of the 1927 Special Acts had been followed. Howard determined that there was no evidence that all of the landowners of property as shown on the 1921 map referred to in the special act had received notice of the meeting. He further testified that on the date of the meeting, there were 137 freeholders of land at White Sand entitled to notice in accordance with the special act, but that only eighteen "members" were present at the meeting. Howard further testified that there was no record of compliance with the requirement that the notice of the meeting be posted on the post office building at Black Hall two weeks before the meeting.

Because of the defects noted, Howard opined that the organizational requirements imposed by § 22 of No. 475 of the 1927 Special Acts for the formation of White Sand had not been performed. From this conclusion, the defendants argue that White Sand does not exist as a specially incorporated district authorized to levy taxes.

In the first count of their counterclaim, the defendants are claiming that in 1927, White Sand failed to perform certain acts required by the special act. "[Whoever asserts a claim or defense that is negative in form or depends upon a negative proposition has the burden of establishing the truth of the assertion. This is only another way of saying that he or she who affirms must prove. The claim or defense of invalidity illustrates the principle under consideration, since invalidity is essentially negative in form.]" 1 C. Fishman, Jones on Evidence (7th Ed.1992) § 3:25, pp. 260-61. In this regard, the defendants have introduced evidence that no proof exists that, in 1927, White Sand performed certain procedures required by the special act. There is no direct proof, however, that such acts were not performed. Assuming that White Sand's officers, acting under the special act, were acting as public officers, there is a presumption that such officers performed their duties properly. Gahill v. Board of Education, 198 Conn. 229, 242, 502 A.2d 410 (1985). This situation illustrates the problem involved in attacking the corporate existence of a quasi-municipal corporation formed almost eighty years ago.

This is basically an action to foreclose tax liens. By their amended counterclaim, the defendants have questioned...