Opinion
CV166015116S
04-10-2017
Leslie C. Weinstein et al. v. June Hansen et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT (#110 and #112)
Elpedio N. Vitale, J.
NATURE OF THE PROCEEDINGS
The plaintiff--Leslie C. Weinstein, Allan Yanaros, Irene J. Brugg, Michael J. Brugg, Carolyn G. Aaronson, Renee P. Dubin, Michael Ratner, Christine G. Gustafson, Ronnie C. Blum, Roberta L. Nair, and Donna Caplan Hersh--commenced the present action by service of process on the defendants, June Hansen and Wendy McDermott, on February 18, 2016. The plaintiffs allege in their complaint that they are trustees of trusts that own certain pieces of real property (properties) in the town of Clinton (town) and that the defendants, who are the registrars of voters for the town, have barred the plaintiffs from voting in town elections and referendums, despite the town charter expressly authorizing votes for any persons eligible under General Statutes § 7-6. The plaintiffs further allege that their exclusion from voting violates § 7-6 and the state and federal constitutions.
On October 21, 2016, the defendants moved for summary judgment on the plaintiffs' complaint. The plaintiffs then filed a cross motion for summary judgment on November 7, 2016. On November 18, 2016, the Connecticut Attorney General and Connecticut Secretary of the State (collectively, state) filed a joint amicus brief in support of the defendants' motion and in opposition to the plaintiffs. The parties appeared for oral argument on January 3, 2017, but ultimately agreed to have the court decide the motions on the papers.
DISCUSSION
" Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015).
I
Defendants' Motion for Summary Judgment
The defendants contend that they are entitled to summary judgment because the undisputed facts establish that the plaintiffs are ineligible to vote under § 7-6. General Statutes § 7-6 provides in relevant part: " At any town meeting other than a regular or special town election or at any meeting of any fire, sewer or school district or any other municipal subdivision of any town incorporated by any special act . . . any citizen of the United States of the age of eighteen years or more who, jointly or severally, is liable to the town, district or subdivision for taxes assessed against him on an assessment of not less than one thousand dollars on the lastcompleted grand list of such town, district or subdivision . . . may vote . . ." Thus, under the plain language of § 7-6, in order for the plaintiffs in the present case to be eligible to vote, they must be (1) United States citizens, (2) at least eighteen years old, and (3) liable to the town for taxes assessed against them on an assessment (4) of not less than $1000 on the town's last-completed grand list.
Neither party seeks summary judgment on the plaintiffs' constitutional claim.
General Statutes § 7-6 also makes eligible to vote at town meetings " any person who is an elector of such town." The plaintiffs in the present case do not allege that they are electors of the town of Clinton, and, thus, this portion of § 7-6 is not at issue.
Under the taxpayer eligibility provision of § 7-6, one who is not liable for municipal property taxes but " would be so liable if not entitled to an exemption under subdivision (17), (19), (22), (23), (25) or (26) of [General Statutes § ]12-81, " may be eligible to vote. The plaintiffs, however, do not allege that they would be so liable if not entitled to one of these exemptions. Thus, only the plaintiffs' actual tax liability is at issue here. See DeCorso v. Calderaro, 118 Conn.App. 617, 622, 985 A.2d 349 (2009) (" [t]he applicable rule regarding the material facts to be considered on a motion for summary judgment is that the facts at issue are those alleged in the pleadings" [internal quotation marks omitted]), cert. denied, 295 Conn. 919, 991 A.2d 564 (2010).
In their memorandum of law in support of their motion for summary judgment, the defendants contend that, under the plain language of § 7-6, only natural persons are eligible to vote. The defendants assert that trusts are therefore ineligible to vote because they constitute nonhuman entities without citizenship, an age of majority, or a gender. See General Statutes § 7-6 (" any citizen of the United States of the age of eighteen years or more who, jointly or severally, is liable to the town, district or subdivision for taxes assessed against him " [emphasis added]). The state takes essentially the same position in its amicus brief.
The court is not persuaded by this argument. Even if the defendants are correct that the right to vote under § 7-6 is limited to natural persons, they erroneously assume that the parties asserting this right are the trusts, as opposed to the plaintiff trustees. The plaintiffs in the present action seek an order of mandamus compelling the defendants " to place the plaintiff trustees on the voting lists of the [town]"; (emphasis added) Pls.' Compl. p. 4, ¶ 1; they do not assert that the trusts themselves have the right to vote. It is therefore immaterial whether the right to vote established by § 7-6 extends to legal entities.
To the extent the defendants mean to imply that the trusts are the real parties of interest and that the plaintiffs, as trustees, merely represent and act for the trusts, the court notes the " well established legal principal that [a] trustee is not an agent." (Internal quotation marks omitted.) Heise v. Rosow, 62 Conn.App. 275, 282, 771 A.2d 190, cert. denied, 256 Conn. 918, 774 A.2d 137 (2001). Whereas " [a]n agent represents and acts for his principal, who may be either a natural or artificial person, " and is " subject to his [principal's] control"; (internal quotation marks omitted) id. ; a trustee is " a person in whom some estate, interest, or power in or affecting property is vested for the benefit of another" and " as such is not subject to the control of the beneficiary, except that he is under a duty to deal with the trust property for his benefit in accordance with the terms of the trust." (Internal quotation marks omitted.) Id. Indeed, it is well settled that, as to the trust property, the trustee has " legal title, [which] in the eye of the law, carries with it, to the holder, absolute dominion." (Internal quotation marks omitted.) Andrews v. New Britain National Bank, 113 Conn. 467, 471, 155 A. 838 (1931). Hence, to the extent the plaintiffs have certain rights by virtue of holding legal title to the respective trust properties, it does not follow that they hold those rights merely in a representative capacity. The relevant inquiry is, therefore, whether the plaintiffs, as trustees, have the right to vote under § 7__ not whether the trusts, as entities, have such right. The defendants' contentions regarding the trusts' eligibility to vote are thus inapposite. Accordingly, the court will only address the defendants' arguments that relate to the plaintiff trustees.
In their memorandum of law in support of their motion for summary judgment, the defendants assert that trustees are not property owners and are therefore not entitled to vote under § 7-6. This argument is without merit. As noted in the preceding paragraph, a trustee, by definition, holds legal title to the trust property and is thus properly considered the owner of such property. See also Tremaine v. Tremaine, 235 Conn. 45, 64, 663 A.2d 387 (1995) (" in valid trust, legal title of trust property is owned by trustee, while beneficiary has mere beneficial interest in use of that property" [emphasis added]).
The defendants further argue, however, that the plaintiffs are not eligible to vote under § 7-6 because they are not personally liable for tax assessments on the trust properties. The defendants thus shift their focus to the statute's tax liability element requiring that a potential voter be " liable to the town . . . for taxes assessed against him on an assessment of not less than one thousand dollars on the lastcompleted grand list of such town." General Statutes § 7-6. The relevant assessments in the present case are of pieces of real property. " Towns are authorized by statute to assess taxes on real property against the owner of the property. See General Statutes § 12-64(a) ('[a]ny interest in real estate shall be set by the assessors in the list of the person in whose name the title to such interest stands on the land records')." Sheridan v. Killingly, 278 Conn. 252, 264, 897 A.2d 90 (2006). " The party against whom a tax is assessed is directly liable for the tax and his duty [to pay it] is clear . . . [U]nder General Statutes § 12-161, the . . . record owner, in the absence of an agreement to the contrary, [is] the person liable for the tax." (Citations omitted; internal quotation marks omitted.) Schnier v. Commissioner of Transportation, 172 Conn. 427, 430, 374 A.2d 1087 (1977).
General Statutes § 12-161 provides: " All taxes properly assessed shall become a debt due from the person, persons or corporation against whom they are respectively assessed to the town, city, district or community in whose favor they are assessed, and may be, in addition to the other remedies provided by law, recovered by any proper action in the name of the community in whose favor they are assessed."
In their memorandum of law in response to the plaintiff's reply to the state's amicus brief, the defendants argue that, because the plaintiffs hold title only in their capacities as trustees, they cannot be held liable in their individual capacity for any taxes levied on the trust properties and are therefore precluded from voting under § 7-6. The defendants thus implicitly interpret the tax liability element of § 7-6 as requiring that potential voters be personally liable for such taxes. Even assuming, arguendo, that this interpretation is correct, the defendants' argument fails because Connecticut continues to adhere to the common-law rule that a trustee is personally liable for obligations incurred by virtue of holding legal title to the trust property.
" At common law, a trustee was held personally liable for obligations, including tort liability, arising from the mere ownership of trust property, regardless of whether the trustee was personally at fault." 14 G. Bogert & G. Bogert, The Law of Trusts and Trustees (3d Ed. 2009) § 720, p. 338. This traditional view is reflected in the Restatement (Second) of Trusts, which provides: " The trustee is subject to personal liability to third persons on obligations incurred in the administration of the trust to the same extent that he would be liable if he held the property free of trust." 2 Restatement (Second), Trusts § 261 (1959). Under this approach, " [a]lthough the trustee is personally liable to third persons on obligations incurred by him in the administration of the trust, he is entitled to indemnity out of the trust estate if the liability was properly incurred by him." 2 Restatement (Second), supra, § 261, comment (b), p. 2. Although the modern trend has been toward legislative abrogation of the common law to " now provide, in a broad range of cases, that the trustee is liable for such obligations in a representative capacity only"; 4 A. Scott et al., Scott & Ascher on Trusts (5th Ed. 2006) § 26.4, p. 1887; see 14 G. Bogert & G. Bogert, supra, § 720, p. 338 (" [r]ecently the law has trended away from [the common-law] position, so that the majority rule in the United States today is to impose personal liability only when the trustee is personally at fault" [citing, as examples, those jurisdictions that have adopted Uniform Trust Code, Uniform Probate Code, or similar legislation]); see also 4 Restatement (Third), Trusts § 106, comment (b), p. 99 (2012) (" a trustee is personally liable for obligations arising in the course of trust administration only if the trustee, in some manner, has acted improperly in administering the trust, or has agreed to be liable"); " in the absence of statutory authority to the contrary, " the common-law rule controls. 4 A. Scott et al., supra, § 26.4, p. 1886.
In Connecticut, this common-law rule has been abrogated by statute in only two limited circumstances, neither of which is applicable in the present case. The rule has been wholly displaced in the context of statutory trusts formed pursuant to the Connecticut Statutory Trust Act, General Statutes § § 34-500 through 34-547. Pursuant to General Statutes § 34-523(b), " [e]xcept to the extent otherwise provided in the governing instrument of a statutory trust, a trustee, when acting in such capacity, shall not be personally liable to any person other than the statutory trust or a beneficial owner for any act, omission or obligation of the statutory trust or any trustee thereof." There is no allegation herein that the trusts are statutory trusts, and no evidence has been submitted showing that any certificates of trust have been filed with the office of the Secretary of the State, as is required by General Statutes § 34-503(a) for all statutory trusts. Therefore, this exception to the common-law rule of personal liability is inapplicable in the present case.
The common law has also been abrogated, by General Statutes § 52-570a, in the context of legal claims brought against a trustee, administrator, executor, or guardian " on account of moneys paid or services rendered for the estate . . ." General Statutes § 52-570a(a). Under such circumstances, " [i]f the claim is found to be a just one and one which ought to be equitably paid out of the estate, judgment may be rendered in favor of the claimant, to be paid wholly out of the estate held by the executor, administrator, guardian or trustee." General Statutes § 52-570a(b). As indicated by the language of the statute itself, however, " [t]he only matters arising out of the acts of an administrator [or trustee] for which an action lies against him as such [i.e., in his capacity as trustee] are those growing out of moneys paid or services rendered for the estate." (Emphasis in original; internal quotation marks omitted.) Palmer v. Hartford National Bank & Trust Co., 160 Conn. 415, 426, 279 A.2d 726 (1971), quoting Main v. Norman, 130 Conn. 600, 601, 36 A.2d 256 (1944); see, e.g., Miller v. Barnes, 20 Conn.Supp. 179, 181, 129 A.2d 357 (1956) (holding that contract claim against administrator of estate did not fall within ambit of statute). A property owner's municipal tax liability clearly does not constitute a claim arising out of moneys paid or services rendered for the property, and, thus, § 52-570a is inapplicable in the present case.
Even if General Statutes § 52-570a was applicable in the present case, it would not alter the court's conclusion that trustees are personally liable for obligations incurred by virtue of holding legal title. " Under the statute . . . one to whom an executor or administrator [or trustee] has incurred an obligation growing out of money paid or services rendered to the estate, may bring an action against him . . . in his representative capacity, and if such claim shall be found to be a just one, and one which ought to be equitably paid out of such estate, the statute authorizes a judgment to be satisfied out of the assets of the estate; but it provides that if there be not sufficient estate to satisfy the claim, the claimant may pursue his legal remedy against the executor or administrator individually, for any balance due him, or may elect to hold him liable upon his personal responsibility. This statute does not change the nature of the obligation incurred by an executor or administrator [or trustee] in the performance of his duties ; it merely affords the creditor a remedy by which, without injustice to the estate, the obligation owed to him may be discharged immediately from the fund which in any event would ultimately bear the burden . . ." Hewitt v. Beattie, 106 Conn. 602, 613-14, 138 A. 795 (1927).
As demonstrated by the legislative history of § 52-570a, the common-law rule governs when the statute does not apply. " Previous to the enactment of the statute, now appearing as § 5771 of the General Statutes [now § 52-570a], the right of recovery of one to whom an executor or administrator [or trustee] had incurred an obligation in the performance of his duties was against the executor or administrator [or trustee] personally, and the only way in which the estate could be charged with such an obligation was through its allowance to the executor or administrator [or trustee] in his account of the sums paid by him. Taylor v. Mygatt, 26 Conn. 184, 190 [(1857)]; Burke v. Terry, 28 Conn. 414 [(1859)]; Chambers v. Robbins, 28 Conn. 544, 550 [(1859)]." Hewitt v. Beattie, 106 Conn. 602, 612-12, 138 A. 795 (1927). In other words, prior to the enactment of § 52-570a, a creditor could reach the estate only via an indirect route. " [Section 52-570a] evinces a legislative intent to favor a direct route. Thus, where at common law a suit would have been brought against the trustee in his individual capacity, with the trustee then, in turn, seeking reimbursement from the trust fund, [the statute] allows a direct action against the fund; that is, against the trustee as such." Palmer v. Hartford National Bank & Trust Co., supra, 160 Conn. 426. It therefore follows that, where § 52-570a does not apply, the default, common-law rule remains in force.
In sum, even if the tax liability element of § 7-6 is construed as requiring that potential voters be personally liable for municipal property taxes, the plaintiffs could satisfy this element despite holding title to the taxed properties only in their capacities as trustees. Thus, the defendants' motion for summary judgment cannot be granted on this ground. Because they have not asserted any additional grounds, the defendants cannot otherwise establish entitlement to judgment as a matter of law.
II
Plaintiffs' Motion for Summary Judgment
The court need not address the plaintiffs' motion for summary judgment in detail, for it is apparent to the court that, at least at this juncture, the plaintiffs cannot satisfy two basic elements of their claim: (1) that they are United States citizens and (2) that they are at least eighteen years old. There is no evidence in the record relevant to either of these elements, and, accordingly, the plaintiffs cannot establish entitlement to judgment as a matter of law.
CONCLUSION
For the foregoing reasons, the court denies both parties' motions for summary judgment.