Town of Farmington v. Dowling

602 A.2d 1047, 26 Conn. App. 545, 1992 Conn. App. LEXIS 46
CourtConnecticut Appellate Court
DecidedFebruary 4, 1992
Docket9935
StatusPublished
Cited by39 cases

This text of 602 A.2d 1047 (Town of Farmington v. Dowling) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of Farmington v. Dowling, 602 A.2d 1047, 26 Conn. App. 545, 1992 Conn. App. LEXIS 46 (Colo. Ct. App. 1992).

Opinion

Lavery, J.

This is an appeal by the defendant from the granting of the plaintiff town’s motion for summary judgment on its suit for collection of delinquent real estate taxes pursuant to General Statutes § 12-161.1 The defendant claims that the trial court improperly granted summary judgment because there was a material issue of fact to be resolved at trial, that is, whether the taxes were properly assessed. We affirm the judgment of the trial court.

[547]*547The pertinent undisputed facts are as follows. On October 1, 1979, and on October 1, 1980, the defendant was the record owner of an undivided 75 percent interest in a parcel of land in Farmington. The remaining 25 percent interest was owned by Samuel Heyman. The parcel was part of a larger piece of property owned by the defendant. The defendant applied to the town’s planning and zoning commission for permission to develop the property as a shopping center. On July 17, 1978, the commission approved the application on condition that the defendant convey 5.3 acres of the parcel to the plaintiff as open space. On April 7, 1982, a deed was filed in the Farmington land records conveying the defendant’s ownership interest in the parcel to the plaintiff. The property tax assessment on this 5.3 acre parcel is at issue in this appeal. The plaintiff never agreed to waive or assume the defendant’s tax liability on the 5.3 acre parcel. The defendant never appealed the commission’s decision to challenge the condition of approval that the parcel be conveyed to the plaintiff.

For the years 1979 and 1980, the plaintiff assessed the taxes due on the parcel jointly against the defendant and Heyman. On November 17,1981, the property assessment was split and the defendant and Heyman each were billed separately for their proportionate shares. On August 31,1985, the town attorney for the plaintiff sent the defendant and Heyman a collection letter for the unpaid taxes, together with a copy of a letter from the tax collector showing what each owed on their respective interests for the tax years 1979 and 1980.

The defendant failed to file a tax appeal concerning either the 1979 or 1980 assessments prior to this collection action, but instead filed a special defense alleging that the transfer of the parcel to the plaintiff as open space was the consideration for the zoning [548]*548approval, and consequently he had no tax liability for the parcel. In essence, the defendant asserted that the tax assessments were improper.

The defendant opposed the plaintiffs motion for summary judgment on two grounds, claiming that material issues of fact remain to be resolved: (1) whether the taxes were properly assessed against him; and (2) whether he received notice of the taxes due. He claims that these issues are relevant to his defenses that he was not subject to taxes on the parcel and that receipt of notice is an essential element of the assessment process as contemplated by General Statutes § 12-161. The trial court found the defendant’s claims to be without merit and granted summary judgment in favor of the plaintiff. The trial court denied the defendant’s motion to reargue.

The abstract of assessment of real property in the town of Farmington shows that on the first day of October, 1979, and on the first day of October, 1980, a joint assessment was made against the defendant and Hey-man. After the subsequent split of the assessment, however, the plaintiff town brought its collection action against the defendant severally.

The defendant relies on New London v. Miller, 60 Conn. 112, 115, 22 A. 499 (1891), which states: “In an action where the complaint alleged a several assessment and the proof was of a joint one, no valid judgment could be rendered, because it could not follow both.” The defendant claims that because General Statutes § 12-161 mandates that the taxes be “properly assessed,” the question of the joint assessment and the proof of a severed tax bill was a material issue of fact which should have been resolved at a trial.

“Under our rules of practice, any party may move for summary judgment once the pleadings in a case are closed. Practice Book § 379. . . . ‘The judgment [549]*549sought 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.’ Practice Book § 384.” Cummings & Lockwood v. Gray, 26 Conn. App. 293, 296-97, 600 A.2d 1040 (1991). “Once the moving party has filed the appropriate documents, the party opposing the motion ‘must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.’. . . The mere presence ‘of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.’ . . . Rather, ‘the defendant must recite specific facts . . . which contradict those stated in the plaintiff’s affidavits and documents.’ ... ‘In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.’ ” (Citations omitted.) Id., 297.

Our Supreme Court has “repeatedly insisted that a taxpayer wishing to contest the legality of its tax assessments must follow prescribed statutory procedures.” Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 422, 521 A.2d 569 (1987). “ ‘Where the General Assembly has established complete, adequate and speedy statutory remedies for alleged tax irregularities, a taxpayer must exhaust them.’ ” Norwich v. Lebanon, 200 Conn. 697, 709, 513 A.2d 77 (1986). “ ‘A taxpayer who has not sought redress in an appropriate manner is foreclosed from continuing litigation outside these statutes.’ ” Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 692, 553 A.2d 1104 (1989), quoting National CSS, Inc. v. Stamford, 195 Conn. 587, 597-98, 489 A.2d 1034 (1985). By failing to contest the assessments of the par[550]*550cel properly, the defendant has effectively waived his right to challenge them. Owner-Operators Independent Drivers Assn. of America v. State, supra, 687; Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556, 529 A.2d 666 (1987). Indeed, direct judicial adjudication is not warranted when the relief sought by a litigant may have been obtained through an alternative statutory procedure which the litigant has chosen to ignore. Owner-Operators Independent Drivers Assn. of America v. State, supra.

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Bluebook (online)
602 A.2d 1047, 26 Conn. App. 545, 1992 Conn. App. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-farmington-v-dowling-connappct-1992.