Opinion
No. CV 06 4005785 S
October 18, 2006
MEMORANDUM OF DECISION RE MOTION #104-MOTION FOR SUMMARY JUDGMENT
Fact
The plaintiff alleges in a second amended complaint that on October 1, 2003, October 1, 2004 and October 1, 2005 he had paid for certain leasehold improvements to 640 Savin Avenue, West Haven, CT.
On October 13, 2005, as a result of a business personal property audit, the assessors of the defendant city characterized the leasehold improvements as personal property as opposed to real property and increased the value of the plaintiff's personal property as of the October 1, 2003 list year to one hundred nine thousand, five hundred and thirty six dollars ($109,536.00).
The property value for the October 1, 2004 list year was set at one hundred three thousand, seven hundred and one dollar ($103,701.00).
The property value for the October 1, 2005 list year was set at ninety two thousand, two hundred and forty one dollars ($92,241.00).
The assessors further determined that the aforementioned property should be liable for taxation at seventy percent (70%) of its actual valuation on the aforementioned dates.
The assessors imposed penalties in the amounts of twenty one thousand, eighty seven dollars ($21,087.00) as of October 1, 2003 and eighteen thousand, two hundred and twenty dollars as of October 1, 2004.
The plaintiff alleges that the tax was manifestly excessive and could not have been arrived at except by disregarding the statutes for determining the valuation of property.
On May 25, 2006 the plaintiff filed a motion for summary judgment. The plaintiff asserts in its motion that there are no genuine issues of material fact and therefore it is entitled to summary judgment as a matter of law.
Section 17-45 of the Connecticut Practice Book concerns the proceedings for motions for summary judgment. It provides that:
A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party [prior to the day the case is set down for short calendar] shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.
Before addressing the merits of the defendant's motion, a brief review of the standards for the granting of a motion for summary judgment is warranted:
"Summary judgment 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 . . . 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.) Orkney v. Hanover Ins. Co., 248 Conn. 195, 201, 727 A.2d 700 (1999).
QSP, Inc. v. The Aetna Casualty Surety Co., 256 Conn. 343, 351 (2001).
In its memorandum in support of the motion for summary judgment the plaintiff raises two specific issues: 1) Whether the defendant's increased assessments and penalties are in violation of C.G.S. § 12-71, which limits the personal property tax to "any interest in a leasehold improvement classified as other than real property; and 2) Whether the defendant's assessment of the value of the property in question is manifestly excessive?
Section 12-71 of the Connecticut General Statutes provides in pertinent part: (a) All goods, chattels and effects or any interest therein, including any interest in a leasehold improvement classified as other than real property, belonging to any person who is a resident in this state, shall be listed for purposes of property tax in the town where such person resides, subject to the provisions of sections 12-41, 12-43 and 12-59.
The plaintiff asserts that it did not classify the leasehold improvements at issue as "something other than real property," but explicitly chose to characterize the improvements as real property and did not list the property in its personal property tax return.
The plaintiff appears to base this part of its argument on its assertion that the subject leasehold improvements are fixtures. "The question as to whether a particular piece of property is personalty or a fixture is a question of fact." ATC Partnership v. Town of Windham, 268 Conn. 463, 479 (2004). "To constitute a fixture, we must first look at the character of how the personalty was attached to real estate, the nature and adaptation of the [personalty] to the uses and purposes to which they were appropriated at the time the annexation was made, and whether the annexer intended to make a permanent accession to the realty . . . The character of the personal property attached to the real estate is determined at the time that the property is attached to the real estate." (Citations omitted; internal quotation marks omitted.) Vallerie v. Stonington, 253 Conn. 371, 372, 751 A.2d 829 (2000). In determining whether personal property has become a fixture, the primary focus is on the annexer's intent rather than the precise method of annexation employed. ATC Partnership v. Town of Windham, supra, 268 Conn. 473.
"To constitute a fixture, it is essential that an article should not only be annexed to the freehold, but that it should clearly appear from an inspection of the property itself, taking into consideration the character of the annexation, the nature and the adaptation of the article annexed to the uses and purposes to which [the realty] was appropriated at the time the annexation was made, and the relation of the party making it to the property in question, that a permanent accession to the freehold was intended to be made by the annexation of the article." (Internal quotation marks omitted.) Waterbury Petroleum Products, Inc. v. Canaan Oil Fuel Co., 193 Conn. 208, 215-16, 477 A.2d 988 (1984); see also Vallerie v. Stonington, 253 Conn. 371, 372, 751 A.2d 829 (2000).
In light of the foregoing, this court concludes that the moving party has failed to meet his burden of proof to show an absence of genuine issues of material fact as to whether the subject items are fixtures, the motion for summary judgment is therefore denied. So ordered.