Cornelius v. Rosario

167 Conn.App. 120

143 A.3d 611

Frederick CORNELIUS

v.Lydia ROSARIO et al.

No. 37210.

Appellate Court of Connecticut.

Argued Jan. 20, 2016.

Decided July 26, 2016.

Frederick Cornelius, self-represented, the appellant-appellee (plaintiff).

Rebecca M. Harris, Hartford, for the appellee-appellant (named defendant).

DiPENTIMA, C.J., and GRUENDEL and MULLINS, Js.^*

DiPENTIMA, C.J.

The plaintiff, Frederick Cornelius, appeals from the judgment of the trial court, awarding the defendant Lydia Rosario, the former tax collector for the city of Hartford (city), attorney's fees and costs incurred by her in successfully defending the plaintiff's 2007 challenge to the tax sale of certain property.¹ On appeal, the plaintiff argues that (1) General Statutes § 12–140 allows for costs only and not attorney's fees, (2) he is not the “delinquent taxpayer” under § 12–140, (3) recovery of attorney's fees pursuant to § 12–140 is preempted by 42 U.S.C. § 1988, and (4) the defendant's motion for attorney's fees was untimely. The defendant has filed a cross appeal, challenging the denial of a portion of the requested attorney's fees and costs. We affirm in part and reverse in part the judgment of the trial court.

The following facts, as set forth in Cornelius v. Rosario, 138 Conn.App. 1, 51 A.3d 1144, (Cornelius I ), cert. denied, 307 Conn. 934, 56 A.3d 713 (2012), cert. denied sub nom. Cornelius v. Nelson, ––– U.S. ––––, 134 S.Ct. 386, 187 L.Ed.2d 28 (2013), are relevant to this appeal. “On November 22, 2004, the plaintiff, a sophisticated real estate investor, purchased ... property [located at 78 Beacon Street in Hartford] from Mercury [Mortgage Company, Inc. (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 [city and Rosario] 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 a tax sale. Prior to executing the tax sale, the defendants 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 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 of 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.” Id., at 5, 51 A.3d 1144. After the defendants' notice of the tax sale to Mercury was returned as undeliverable, the defendants attempted to find another address for Mercury, and to locate an agent of Mercury. Id., at 5–6, 51 A.3d 1144. They ultimately sent the notice to Mercury's attorney, Hunt Leibert. Id., at 6, 51 A.3d 1144.

In 2008, the plaintiff commenced this action seeking to quiet title and a declaration that the 2007 tax sale of the property was and void. The plaintiff claimed that the city sold the property without providing proper notice of the sale to him. Rosario was named as a defendant in the action. The plaintiff subsequently amended his complaint to add a count, pursuant to 42 U.S.C. § 1983, for money damages stemming from the alleged violation of his constitutional due process rights. Thereafter, the plaintiff and the defendant each filed a motion for summary judgment. On February 1, 2011, the court granted the defendant's motion for summary judgment and denied the plaintiff's motion for summary judgment. The plaintiff appealed to this court, which affirmed the judgment of the trial court in a decision released September 11, 2012. See Cornelius I, supra, 138 Conn.App. at 1, 51 A.3d 1144. On November 27, 2012, our Supreme Court denied the plaintiff's petition for certification to appeal. Cornelius v. Rosario, 307 Conn. 934, 56 A.3d 713 (2012). On October 7, 2013, the United States Supreme Court denied the plaintiff's petition for a writ of certiorari. Cornelius v. Nelson, –––U.S. ––––, 134 S.Ct. 386, 187 L.Ed.2d 28 (2013). On October 8, 2013, the plaintiff filed a motion to open the judgment, which the court denied on December 12, 2013. On January 6, 2014, the plaintiff filed a motion to reargue the denial of his motion to open, which the court denied on January 24, 2014.²

On December 18, 2012, the defendant filed a motion for attorney's fees and costs pursuant to § 12–140. In that motion, the defendant claimed that she had incurred $120,114.84 in legal fees and costs in defending the plaintiff's action. The plaintiff opposed the motion, arguing that it was untimely with regard to the fees incurred at trial and premature with regard to the fees incurred on appeal. On March 24, 2014, the defendant filed a second motion for attorney's fees and costs, claiming that she had incurred $139,285.01 in legal fees and costs at the trial court and on appeal. The court initially denied the defendant's motion due to her failure to appear at a hearing to justify the fees or to respond to the plaintiff's arguments against allowance of the fees. The court subsequently allowed reargument, and both sides presented arguments on the merits. At this time, the defendant supplemented her request for attorney's fees and costs, seeking a total award of $140,955.51.

By decision dated July 28, 2014, the court found that the defendant's request for attorney's fees and costs initially incurred in the trial court was untimely. The court further found that the defendant's request for appellate attorney's fees and costs, as well as fees and costs incurred postjudgment to secure the judgment, were recoverable. In sum, the court awarded the defendant a total of $40,824.11 for attorney's fees and costs. The plaintiff subsequently appealed, and the defendant cross appealed from this judgment.

I

The plaintiff claims that § 12–140 allows for the recovery of only costs and not attorney's fees. The defendant counters that § 12–140 plainly and unambiguously provides for the recovery of attorney's fees. We agree with the defendant.

The plaintiff's claim raises a question of statutory interpretation. “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.)

Goodwin v. Colchester Probate Court, 162 Conn.App. 412, 427, 133 A.3d 156, cert. denied, 320 Conn. 924, 133 A.3d 878 (2016).

Section 12–140, entitled “Fees, costs and expenses of tax collectors and tax sales,” provides: “The fee of collectors for issuing an alias tax warrant shall be six dollars. All reasonable and necessary costs or expenses for necessary advertising, postage on notices, and reasonable sums paid town clerks or other persons for examining records to ascertain encumbrances upon property sold, for preparing notices at the direction of the tax collector, for drafting collector's deeds, for attorney's fees, for all fees and costs incurred by the municipality in 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, for the services of auctioneers, clerks and other persons retained to assist the collector in conducting the tax sale, for filings in the land records, fees paid to any federal, state or local government entity or agency 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.) The court held that this statute unambiguously allowed an award of reasonable attorney's fees incurred by tax collectors in successfully defending actions challenging tax sales, as occurred in the present case. We agree and conclude that pursuant to the plain meaning of the statute, the defendant was entitled to seek the recovery of reasonable attorney's fees incurred in defending the plaintiff's action.³

II

The plaintiff next claims that, pursuant to Cornelius I, the “delinquent taxpayer” for purposes of § 12–140 is Mercury, not the plaintiff. We disagree.

In Cornelius I, the plaintiff argued in part that his interest in the property was reasonably ascertainable, and, therefore, the defendants were constitutionally bound to mail notice of the tax sale to him. Cornelius I, supra, 138 Conn.App. at 17, 51 A.3d 1144. We disagreed with the plaintiff, concluding that “[General Statutes § 12–157(a) ] does not require that persons or entities with unrecorded interests be notified, nor does it require a city to search its departments for unrecorded interests. Section 12–157(a) requires notice only to persons with a recorded interest in the...