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STEPHEN C. MCCULLOUGH v. TOWN
OF ROCKY HILL
(AC 41834)
Lavine, Elgo and Sheldon, Js.
Syllabus
The plaintiff sought to recover damages from the defendant town for, inter
alia, abuse of process and various other intentional torts. The town, after
discussion with the plaintiff and without his objection, began mowing
overgrown grass, removing shrubbery and cutting and removing certain
branches and trees on an area of land located between the plaintiff’s
property line and the curb of the adjacent street. One month later,
however, the plaintiff, after consulting a tree expert, informed town
officials that he intended to bring an action against the town because
he believed that some of the cut branches and trees had been on his
property and that the town had unlawfully cut them. The plaintiff sent
a $400,000 invoice to the town manager for ‘‘tree and related damages.’’
Thereafter, the town brought an action against the plaintiff to foreclose
municipal tax liens on his property. While the foreclosure action was
pending, the town notified the plaintiff of an increase in the 2013 assess-
ment of his property. The trial court rendered judgment in favor of the
plaintiff in the foreclosure action, and, the plaintiff commenced the
present action. In a twelve count complaint, the plaintiff alleged, in
counts one and four, abuse of process in connection with the foreclosure
action and the 2013 assessment, respectively, and, in count eight, abuse
of process for the town’s alleged misuse of the statute (§ 8-12) that sets
forth the procedure to be followed when ordinances are violated. In
the other counts of the complaint, the plaintiff alleged, inter alia, that
the town committed multiple intentional torts. In response, the town
filed an answer and special defenses, including governmental immunity
pursuant to statute (§ 52-557n (a) (2) (A)) with respect to ten counts.
The trial court rendered summary judgment in favor of the town on all
counts, from which the plaintiff appealed to this court. Held:
1. The trial court properly rendered summary judgment in favor of the
town on the plaintiff’s intentional tort claims, as that court correctly
determined that the doctrine of governmental immunity barred those
claims; it was undisputed that the town is a political subdivision of the
state, and, therefore, the protection from liability under § 52-557n (a)
(2) (A) applied to the intentional tort claims, as the plaintiff failed to
identify any statute that abrogated the town’s governmental immunity
with respect to the relevant intentional torts.
2. The trial court properly rendered summary judgment in favor of the town
on the abuse of process claims in counts four and eight of the plaintiff’s
complaint; those claims contained no allegations that the town utilized
a judicial process or instituted a legal proceeding against the plaintiff,
but, rather, they pertained to the municipal property revaluation process
and the authority of a zoning enforcement officer to issue orders, in
accordance with municipal enactments, regarding the removal of inoper-
able vehicles from private property, and, therefore, the conduct alleged,
as a matter of law, did not support an abuse of process claim.
3. The trial court properly rendered summary judgment in favor of the town
on the abuse of process claim in count one of the plaintiff’s complaint:
no genuine issue of material fact existed as to whether the town com-
menced the tax lien foreclosure action for the primary purpose of escap-
ing liability for $400,000 in damages that allegedly resulted from the
overgrowth remediation activities on the plaintiff’s property, as the
record was bereft of properly authenticated affidavits, exhibits or other
documentation to substantiate the plaintiff’s bald assertion that the town
had done so; moreover, although a genuine issue of material fact existed
as to whether the primary purpose of the tax lien foreclosure action
was the collection of delinquent taxes or the remediation of blight on
the plaintiff’s property, this court concluded that the protections of § 52-
557n (a) (2) (A), nevertheless, afforded the town governmental immunity
against the plaintiff’s abuse of process claim, as abuse of process is an
intentional tort and, therefore, § 52-557n (a) (2) (A) applied, and the
plaintiff failed to identify any statute that abrogated the town’s immunity
from liability to permit his claim.
Argued January 22—officially released July 7, 2020
Procedural History
Action to recover damages for, inter alia, abuse of
process, and for other relief, brought to the Superior
Court in the judicial district of New Britain, where the
court, Wiese, J., granted the defendant’s motion for
summary judgment and rendered judgment thereon,
from which the plaintiff appealed to this court.
Affirmed.
Stephen C. McCullough, self-represented, the appel-
lant (plaintiff).
Melinda A. Powell, for the appellee (defendant).
Opinion
ELGO, J. The self-represented plaintiff, Stephen C.
McCullough, appeals from the summary judgment ren-
dered by the trial court in favor of the defendant, the
town of Rocky Hill, on all twelve counts of his operative
complaint. On appeal, the plaintiff raises several claims
that do not merit substantive discussion.1 The plaintiff
further claims that the court improperly rendered sum-
mary judgment in favor of the defendant on (1) the
intentional tort claims pleaded in his operative com-
plaint and (2) his abuse of process claims. We affirm
the judgment of the trial court.
The record, which we view in the light most favorable
to the plaintiff for purposes of reviewing the trial court’s
rendering of summary judgment, reveals the following
facts and procedural history. At all relevant times, the
plaintiff owned a parcel of real property known as 140
Hayes Road (property) in the defendant municipality.
In early 2012, the defendant enacted a municipal blight
ordinance.2 In the months that followed, various offi-
cials visited the property and discussed overgrowth
with the plaintiff.
On August 27, 2012, town officials began mowing
overgrown grass and removing shrubbery on land
located between the plaintiff’s property line and the
curb of the adjacent street.3 Those efforts continued on
August 28, 2012, when certain branches and trees were
cut and removed from that area at the direction of Lisa
Zerio, the defendant’s tree warden. It is undisputed that
the plaintiff did not voice any objection at that time.
In his deposition testimony, the plaintiff stated that he
initially assumed that the trees and branches were not
on his property and that he had simply asked town
officials not to ‘‘cut down any more than you have
to . . . .’’4
Weeks later, however, the plaintiff contacted Robert
Ricard, a tree expert at the University of Connecticut.
As a result of his communications with Ricard, the
plaintiff came to believe that some of the cut branches
and trees had been located on his property and that
the defendant, by cutting them, had ‘‘disobeyed the tree
laws.’’ The plaintiff met with town officials in Septem-
ber, 2012, to express his displeasure, at which time he
informed them of his intent to sue the defendant. The
plaintiff contemporaneously sent a $400,000 invoice to
the defendant’s town manager for ‘‘tree and related
damages.’’
At that time, the plaintiff had multiple years of out-
standing property tax assessments from the defendant
that he had not paid. In November, 2012, the defendant
brought an action to foreclose municipal tax liens
against the plaintiff (foreclosure action).5 Following a
trial, the court found that the plaintiff had ‘‘paid no
portion’’ of the property taxes duly assessed for the
2008 through 2013 tax years. Rocky Hill v. McCullough,
Superior Court, judicial district of New Britain, Docket
No. CV-XX-XXXXXXX-S (June 30, 2015). The court never-
theless found that, although the defendant had pre-
sented the sworn testimony of its tax collector, it ‘‘did
not produce the original certificates [of liens] nor certi-
fied copies.’’ Id. Its failure to do so, the court concluded,
was ‘‘fatal to the [defendant’s] case, as sufficient evi-
dence to support a prima facie case was not offered
. . . .’’ Id. The court thus rendered judgment in favor
of the plaintiff in the foreclosure action on June 30,
2015. No appeal was taken from that judgment.
The plaintiff commenced the present action approxi-
mately two months later by service of process on Sep-
tember 4, 2015. On September 17, 2015, Kimberley A.
Ricci, the defendant’s zoning enforcement officer, sent
the plaintiff a letter regarding an ‘‘unregistered/inopera-
ble Mercedes-Benz’’ located on the property in violation
of chapter 234 of the defendant’s code of ordinances
(code). Ricci’s letter asked the plaintiff to ‘‘rectify this
violation by either registering the vehicle or [storing]
the vehicle under a covered structure . . . .’’ In his
deposition testimony, the plaintiff admitted that he
stored unregistered vehicles on the property and that
the Mercedes-Benz in question was not registered at
the time that Ricci sent the violation notice.6 There is
no evidence in the record before us as to whether the
plaintiff complied with that violation notice.
Over the next ten months, the plaintiff filed multiple
amended complaints in response to the defendant’s
requests to revise. On August 17, 2016, the defendant
moved to strike all twelve counts of the plaintiff’s July
18, 2016 amended complaint. Following a hearing, the
court issued a detailed memorandum of decision on
January 24, 2017, in which it granted the motion to
strike as to all but the first count of the complaint,
alleging abuse of process.7
After obtaining multiple extensions of time to
replead, the plaintiff filed the operative complaint, his
twelve count substitute complaint, on April 24, 2017.
Counts one and four of that complaint both alleged
abuse of process in connection with the foreclosure
action and the 2013 reassessment of the property,
respectively. See footnote 5 of this opinion. Counts
two and nine alleged intentional infliction of emotional
distress. Count three alleged invasion of privacy on
the basis of an illegal search of the property allegedly
conducted by a member of the Rocky Hill Police Depart-
ment in 2013. Count five alleged inverse condemnation
and due process violations under the state and federal
constitutions. Count six alleged trespass, and count
seven alleged trespass to chattels, as well as an illegal
search that the defendant’s zoning enforcement officer
allegedly conducted during the defendant’s overgrowth
remediation activities on the property on August 27,
2012. Count eight set forth another abuse of process
claim predicated on the defendant’s alleged ‘‘misuse of
. . . General Statutes § 8-12,’’ and count ten alleged
fraudulent misrepresentation. Count eleven concerned
a municipal ordinance that required property owners
to remove ice and snow from their sidewalks8 and
alleged that the ordinance in question was an illegal
enactment. Lastly, count twelve alleged an illegal search
related to the September 17, 2015 violation notice
regarding the unregistered Mercedes-Benz on the
property.
In response, the defendant filed its answer and three
special defenses. The first special defense alleged gov-
ernmental immunity with respect to counts one through
ten. In its second special defense, the defendant alleged
that all twelve counts were barred by applicable statutes
of limitations set forth in General Statutes §§ 52-577
and 52-584. The third special defense alleged that the
plaintiff lacked standing to challenge the constitutional-
ity of the municipal ordinance at issue in count eleven
of the complaint.
On June 2, 2017, the court entered a scheduling order
that, inter alia, obligated the defendant to file its motion
for summary judgment by June 21, 2017. In accordance
with that order, the defendant filed a motion for sum-
mary judgment on June 21, 2017, which was accompa-
nied by a memorandum of law and eight exhibits.9 On
that same date, the plaintiff filed a request for leave to
amend his complaint, to which the defendant objected.
By order dated July 31, 2017, the court denied the plain-
tiff’s request ‘‘pending the outcome of the motion for
summary judgment.’’ The plaintiff then filed memo-
randa of law in opposition to summary judgment on
September 25 and October 11, 2017,10 together with two
documents purporting to be his own affidavits.11
The court heard argument on the defendant’s motion
for summary judgment on October 16, 2017. It thereafter
rendered summary judgment in favor of the defendant
on all twelve counts of the operative complaint, as
detailed in a memorandum of decision dated January
31, 2018. The plaintiff filed a motion seeking reargument
and reconsideration, which the court denied, and this
appeal followed.
As a preliminary matter, we note the well established
standard that governs our review of the trial court’s
decision to grant a motion for summary judgment.
‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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. . . . [T]he moving party . . .
has the burden of showing the absence of any genuine
issue as to all the material facts . . . . When docu-
ments submitted in support of a motion for summary
judgment fail to establish that there is no genuine issue
of material fact, the nonmoving party has no obligation
to submit documents establishing the existence of such
an issue. . . . Once the moving party has met its bur-
den, however, the [nonmoving] party must present evi-
dence that demonstrates the existence of some disputed
factual issue. . . . Our review of the trial court’s deci-
sion to grant the defendant’s motion for summary judg-
ment is plenary.’’ (Citations omitted; internal quotation
marks omitted.) Lucenti v. Laviero, 327 Conn. 764, 772–
73, 176 A.3d 1 (2018).
I
We begin with the plaintiff’s claims regarding certain
intentional torts allegedly committed by the defen-
dant.12 On appeal, the plaintiff claims that the court
improperly rendered summary judgment on those
claims. The defendant, by contrast, submits that the
court properly determined that the doctrine of govern-
mental immunity barred those claims. We agree with
the defendant.
The defendant’s motion for summary judgment was
predicated on General Statutes § 52-557n (a) (2), which
provides in relevant part: ‘‘Except as otherwise pro-
vided by law, a political subdivision of the state shall
not be liable for damages to person or property caused
by . . . (A) Acts or omissions of any employee, officer
or agent which constitute criminal conduct, fraud,
actual malice or wilful misconduct . . . .’’ In Pane v.
Danbury, 267 Conn. 669, 685–86, 841 A.2d 684 (2004),
overruled on other grounds by Grady v. Somers, 294
Conn. 324, 349, 984 A.2d 684 (2009), our Supreme Court
held that the defendant municipality could not be liable
for intentional torts committed by its employees under
§ 52-557n (a) (2) (A). This court consistently has
adhered to that precedent. See, e.g., Avoletta v. Torring-
ton, 133 Conn. App. 215, 224, 34 A.3d 445 (2012) (‘‘under
our case law, a municipality cannot be held liable for the
intentional torts of its employees’’); Martin v. Westport,
108 Conn. App. 710, 729, 950 A.2d 19 (2008) (noting
general rule that municipality and its agents are immune
from liability for acts conducted in performance of offi-
cial duties); McCoy v. New Haven, 92 Conn. App. 558,
562, 886 A.2d 489 (2005) (protection afforded to munici-
pality under § 52-557n (a) (2) (A) bars intentional torts
unless otherwise provided by law); O’Connor v. Board
of Education, 90 Conn. App. 59, 65, 877 A.2d 860
(explaining that intentional torts fall within purview of
§ 52-557n (a) (2) (A) because ‘‘there is no distinction
between ‘intentional’ and ‘wilful’ conduct’’), cert.
denied, 275 Conn. 912, 882 A.2d 675 (2005).13
In the present case, it is undisputed that the defendant
is a political subdivision of the state. It also is undis-
puted that the plaintiff has alleged intentional torts
against the defendant. As a result, the protection of
§ 52-557n (a) (2) (A) applies unless that immunity from
liability has been abrogated by statute. See Avoletta
v. Torrington, supra, 133 Conn. App. 221; Martin v.
Westport, supra, 108 Conn. App. 730. The plaintiff has
not identified any statute that abrogates the defendant’s
governmental immunity with respect to the intentional
torts in question. For that reason, the trial court prop-
erly determined that no genuine issue of material fact
existed and that the defendant was entitled to judgment
as a matter of law on those claims.
II
The plaintiff also claims that the court improperly
rendered summary judgment on his abuse of process
claims. We do not agree.
Under Connecticut law, ‘‘[a]n action for abuse of pro-
cess lies against any person using a legal process against
another in an improper manner or to accomplish a
purpose for which it was not designed.’’ (Internal quota-
tion marks omitted.) Suffield Development Associates
Ltd. Partnership v. National Loan Investors, L.P., 260
Conn. 766, 772, 802 A.2d 44 (2002); see also MacDermid,
Inc. v. Leonetti, 158 Conn. App. 176, 184, 118 A.3d 158
(2015) (‘‘the tort of abuse of process also provides a
cause of action against the improper use of the judicial
system’’). As our Supreme Court has explained,
‘‘although the definition of process may be broad
enough to cover a wide range of judicial procedures,
to prevail on an abuse of process claim, the plaintiff
must establish that the defendant used a judicial pro-
cess for an improper purpose.’’ (Emphasis altered.) Lar-
obina v. McDonald, 274 Conn. 394, 406–407, 876 A.2d
522 (2005). Accordingly, an essential element of an
abuse of process claim is the use of a judicial process
by the defendant.
A
The abuse of process claims set forth in counts four
and eight are patently deficient in this regard. They
contain no allegations that the defendant utilized a judi-
cial process or instituted a legal proceeding against the
plaintiff. Rather, they pertain to the municipal property
revaluation process and the authority of a zoning
enforcement officer to issue orders, in accordance with
municipal enactments, regarding the removal of inoper-
able vehicles from private property. In Larobina v.
McDonald, supra, 274 Conn. 407, our Supreme Court
held that certain ‘‘acts alleged by the plaintiff in support
of his abuse of process claim did not involve a judicial
procedure and, therefore, as a matter of law, do not
support an abuse of process claim.’’ That logic applies
with equal force to the abuse of process claims con-
tained in counts four and eight of the operative com-
plaint. We therefore conclude that the court properly
rendered summary judgment in favor of the defendant
on those claims.
B
Unlike counts four and eight, count one of the opera-
tive complaint contains an allegation that the defendant
improperly utilized a judicial process. In that count,
the plaintiff alleged that the defendant commenced the
foreclosure action with ‘‘extreme malice, wantonness,
and intent to injure the plaintiff . . . .’’ More specifi-
cally, he alleged that the defendant impermissibly uti-
lized the statutory tax lien foreclosure process (1) to
escape liability ‘‘for $400,000 in tree and related dam-
ages’’ allegedly incurred as a result of the defendant’s
overgrowth remediation activities on the property in
August, 2012, and (2) to circumvent ‘‘blight statutes and
instead . . . go after blight through foreclosure
. . . .’’ On appeal, the plaintiff claims that the court
improperly rendered summary judgment on those abuse
of process claims. We disagree.
Taxes are the lifeblood of a municipality. Their
‘‘prompt and certain availability [is] an imperious need.’’
Bull v. United States, 295 U.S. 247, 259, 55 S. Ct. 695,
79 L. Ed. 1421 (1935). For that reason, municipalities
in this state are afforded a host of options under our
General Statutes to collect delinquent taxes.14 Among
those is the authority to foreclose on outstanding
municipal tax liens. See General Statutes § 12-181; see
also Practice Book § 10-70 (setting forth elements
municipality must allege and prove in tax lien foreclo-
sure action). The defendant’s authority to commence
the foreclosure action is unquestionable.
The sole question, then, is whether a genuine issue
of material fact exists as to whether the defendant com-
menced that action ‘‘primarily to obtain a wrongful
purpose for which the proceedings were not designed.’’
(Emphasis added; internal quotation marks omitted.)
Coppola Construction Co. v. Hoffman Enterprises Ltd.
Partnership, 157 Conn. App. 139, 191, 117 A.3d 876,
cert. denied, 318 Conn. 902, 122 A.3d 631 (2015), and
cert. denied, 318 Conn. 902, 123 A.3d 882 (2015). A
plaintiff cannot prevail if the municipality utilized the
judicial process ‘‘for the purpose for which it is
intended, but there is an incidental motive of spite or an
ulterior purpose of benefit to the defendant.’’ (Internal
quotation marks omitted.) Mozzochi v. Beck, 204 Conn.
490, 494, 529 A.2d 171 (1987). Accordingly, to prevail
on his abuse of process claim, the plaintiff must prove
that the defendant utilized the tax lien foreclosure pro-
cess primarily for a ‘‘wrongful and malicious purpose
to attain an unjustifiable end . . . .’’ (Internal quotation
marks omitted.) Falls Church Group, Ltd. v. Tyler, Coo-
per & Alcorn, LLP, 281 Conn. 84, 95 n.10, 912 A.2d
1019 (2007).
1
We first address the plaintiff’s claim that the defen-
dant commenced the tax lien foreclosure action for
the primary purpose of evading liability for $400,000 in
damages stemming from the August, 2012 remediation
activities on the property. The record before us is bereft
of properly authenticated affidavits, exhibits, or other
documentation to substantiate that bald assertion.
‘‘It is frequently stated in Connecticut’s case law that
. . . a party opposing a summary judgment motion
must provide an evidentiary foundation to demonstrate
the existence of a genuine issue of material fact. . . .
[T]ypically [d]emonstrating a genuine issue requires a
showing of evidentiary facts or substantial evidence
outside the pleadings from which material facts alleged
in the pleadings can be warrantably inferred. . . .
Moreover, [t]o establish the existence of a material fact,
it is not enough for the party opposing summary judg-
ment merely to assert the existence of a disputed issue.
. . . Such assertions are insufficient regardless of
whether they are contained in a complaint or a brief.
. . . Further, unadmitted allegations in the pleadings
do not constitute proof of the existence of a genuine
issue as to any material fact.’’ (Internal quotation marks
omitted.) Tuccio Development, Inc. v. Neumann, 111
Conn. App. 588, 594, 960 A.2d 1071 (2008); see also
Buell Industries, Inc. v. Greater New York Mutual Ins.
Co., 259 Conn. 527, 558, 791 A.2d 489 (2002) (party may
not rely on mere speculation or conjecture as to true
nature of facts to overcome motion for summary judg-
ment). There is no evidence in the record to substantiate
the purported $400,000 in ‘‘tree and related damages’’
that the plaintiff alleged in the operative complaint.15
There also is no evidence that the plaintiff ever paid
the delinquent taxes in question, nor does he so claim. In
its memorandum of decision in the foreclosure action,
which was submitted in support of the defendant’s
motion for summary judgment, the trial court specifi-
cally found that the plaintiff had ‘‘paid no portion’’ of
the property taxes duly assessed for the 2008 through
2013 tax years. Rocky Hill v. McCullough, supra, Supe-
rior Court, Docket No. CV-XX-XXXXXXX-S. Accordingly,
we conclude that no genuine issue of material fact exists
as to whether the defendant commenced the foreclo-
sure action for the primary purpose of escaping liability
for $400,000 in damages that allegedly resulted from
the August, 2012 remediation activities on the property.
2
In count one of his complaint, the plaintiff alterna-
tively claimed that the defendant abused the tax lien
foreclosure process to bypass established blight
enforcement protocols. He alleged that the defendant
commenced the foreclosure action to circumvent the
‘‘blight statutes’’ and, instead, chose to ‘‘go after blight
through foreclosure, because it is easier . . . .’’ On
appeal, the plaintiff contends that the court improperly
rendered summary judgment on that claim. We do
not agree.
Under Connecticut law, municipalities are authorized
to impose blight liens on real property and, when neces-
sary, to commence legal actions to foreclose on those
liens. General Statutes § 7-148 (c) (7) (H) (xv) provides
in relevant part that municipalities are empowered to
‘‘[m]ake and enforce regulations for the prevention and
remediation of housing blight’’ and to ‘‘prescribe civil
penalties for the violation of such regulations . . . .’’
General Statutes § 7-148aa likewise provides in relevant
part: ‘‘Any unpaid penalty imposed by a municipality
pursuant to the provisions of an ordinance regulating
blight, adopted pursuant to subparagraph (H) (xv) of
subdivision (7) of subsection (c) of section 7-148, shall
constitute a lien upon the real estate against which the
penalty was imposed from the date of such penalty.
. . .’’
In its memorandum of decision, the court stated that,
‘‘even if the defendant had pursued the plaintiff’s prop-
erty pursuant to the blight ordinances, it could have
sought the same outcome; acquisition of the property,
through the same process: foreclosure.’’ That observa-
tion confuses the availability of a statutory mechanism
with its actual utilization. Significantly, there is no indi-
cation in the record before us that the defendant ever
issued any blight citations to the plaintiff or recorded
any blight liens on the property.
In the operative complaint, the plaintiff alleged that
the defendant commenced the foreclosure action
because the blight foreclosure process is a more cum-
bersome and time-consuming endeavor than a tax lien
foreclosure proceeding. To substantiate that allegation,
the plaintiff provided the court with a copy of the Octo-
ber 15, 2012 minutes of the defendant’s public safety
committee, in which the defendant’s town manager,
Barbara Gilbert, discussed the problem of blight on the
plaintiff’s property.16 The minutes of that meeting state
in relevant part: ‘‘Chairman Joe Kochanek asked how
the [b]light [o]rdinance is coming along. Town Manager
Barbara Gilbert said the [b]light [o]rdinance is hers.
They have been working with the [t]own [a]ttorney
methodically on this by doing one property at a time.
Some properties have been identified and the easiest
way is to go after these through foreclosure due to
the nonpayment of taxes instead of going after them
through blight. She explained more.’’17 Weeks later, the
defendant commenced the tax lien foreclosure action
against the plaintiff to collect approximately $4600 he
then owed in delinquent property taxes.18
On the record before us, and mindful of our obligation
to draw all reasonable inferences in favor of the party
opposing summary judgment; see Buell Industries, Inc.
v. Greater New York Mutual Ins. Co., supra, 259 Conn.
558; Walker v. Housing Authority, 148 Conn. App. 591,
601, 85 A.3d 1230 (2014); we conclude that a genuine
issue of material fact exists as to whether the collection
of delinquent taxes was the primary purpose of the tax
lien foreclosure action. If it credited the substance of
the October 15, 2012 minutes of the public safety com-
mittee and drew reasonable inferences therefrom, the
trier of fact could conclude that the primary purpose
of the foreclosure action was not the collection of
municipal taxes but, rather, the remediation of blight
on the property. Although permitted under other provi-
sions of our General Statutes; see General Statutes § 7-
148aa; such is not a proper purpose of the tax lien
foreclosure procedure established by § 12-181, particu-
larly when no blight citations had been issued to the
plaintiff. A genuine issue of material fact thus exists in
the present record, which only a trier of fact can
resolve.19
That determination does not end our inquiry. As this
court has noted, abuse of process is an intentional tort.
Coppola Construction Co. v. Hoffman Enterprises Ltd.
Partnership, supra, 157 Conn. App. 190. In count one
of his operative complaint, the plaintiff alleged that the
defendant, ‘‘through its [t]own [m]anager and [a]ttor-
ney,’’ commenced the foreclosure action with ‘‘extreme
malice, wantonness, and intent to injure the plaintiff
. . . .’’ In responding to that complaint, the defendant
raised, among other things, a governmental immunity
defense predicated on § 52-557n (a) (2) (A). In moving
for summary judgment, the defendant renewed its claim
that count one was barred by governmental immunity.20
Section 52-557n (a) (2) provides in relevant part:
‘‘Except as otherwise provided by law, a political subdi-
vision of the state shall not be liable for damages to
person or property caused by . . . (A) Acts or omis-
sions of any employee, officer or agent which constitute
criminal conduct, fraud, actual malice or wilful miscon-
duct . . . .’’ As discussed in part I of this opinion, our
appellate courts consistently have held that a defendant
municipality cannot be held liable for intentional torts
committed by its employees in the absence of a statu-
tory abrogation of governmental immunity. See Pane
v. Danbury, supra, 267 Conn. 685–86; Avoletta v. Tor-
rington, supra, 133 Conn. App. 224; Martin v. Westport,
supra, 108 Conn. App. 729. The plaintiff has not identi-
fied any statutory abrogation of the immunity from lia-
bility contained in § 52-557n (a) (2) (A) to permit his
abuse of process claim against the defendant. See Avo-
letta v. Torrington, supra, 133 Conn. App. 221; Martin
v. Westport, supra, 108 Conn. App. 730. Indeed, § 52-
557n (b) (5) expressly provides that political subdivi-
sions of the state such as the defendant shall not be
liable for an action pertaining to ‘‘the initiation of a
judicial proceeding,’’ with the exception of vexatious
litigation actions commenced pursuant to General Stat-
utes § 52-568.21 In light of the foregoing, we conclude
that the protections of § 52-557n (a) (2) (A) afford the
defendant governmental immunity against the plaintiff’s
abuse of process claim. For that reason, the trial court
properly rendered summary judgment in favor of the
defendant on the abuse of process claim contained in
count one of the operative complaint.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Specifically, the plaintiff claims that the court (1) abused its discretion
in overruling his objection to the defendant’s request to revise with respect
to a particular statement made by the defendant’s attorney, (2) abused its
discretion in denying his motion to replead, (3) abused its discretion in
deferring consideration of his request to file an amended substitute com-
plaint until after the defendant’s motion for summary judgment had been
decided, (4) improperly rendered summary judgment on his challenge to
the legality of a municipal ordinance concerning the removal of ice and snow
from public sidewalks, and (5) improperly rendered summary judgment in
favor of the defendant on his illegal search, equal protection, and state
constitutional law claims. We carefully have considered those claims in light
of the record before us, including the court’s thorough memorandum of
decision, and conclude that they are without merit.
2
The plaintiff has not identified that blight ordinance or its contents with
any specificity and did not provide the trial court with a copy of that
ordinance in either his pleadings or the materials submitted in connection
with the motion for summary judgment. In his operative complaint, the
plaintiff merely alleged that the defendant ‘‘enacted a new blight ordinance’’;
he likewise testified under oath on April 29, 2015, that the defendant ‘‘enacted
a blight ordinance in April of 2012.’’
3
In his deposition testimony, which the defendant submitted in support
of its motion for summary judgment, the plaintiff indicated that he ‘‘didn’t
mind’’ the grass mowing and the shrubbery removal.
4
In her sworn affidavit dated June 20, 2017, which was submitted in
support of the defendant’s motion for summary judgment, Zerio stated in
relevant part: ‘‘In late August, 2012, I was made aware of a complaint concern-
ing trees, vines and overgrowth at [the property]. I made a decision that
three trees at the property were a safety hazard and needed to be cut. There
was a dead cherry tree, a maple tree and a dogwood tree. . . . I showed
[the plaintiff] the trees that needed to be cut. At no time did [the plaintiff]
voice a strong objection to removing the trees . . . .’’
5
While the foreclosure action was pending, the defendant completed its
revaluation of all real property in the town for the October 1, 2013 grand
list. The defendant’s tax assessor notified the plaintiff of an increase in the
assessment of the property by letter dated November 19, 2013, and apprised
him of his ability to contest that assessment before the defendant’s Board
of Assessment Appeals. In his complaint, the plaintiff confirms that he
brought such an appeal and that the Board of Assessment Appeals thereafter
‘‘made the decision to significantly lower [his] assessment . . . .’’
6
The plaintiff previously had been ordered to remove ‘‘all inoperable
motor vehicles’’ from the property pursuant to § 234-4 of the code by the
defendant’s prior zoning enforcement officer, Frank J. Kelley, in August,
2012.
7
In its memorandum of decision on the motion to strike, the court specifi-
cally noted that the plaintiff’s July 18, 2016 amended complaint did not
include a vexatious litigation count. The operative complaint likewise does
not contain a vexatious litigation count, and neither the term ‘‘vexatious’’
nor General Statutes § 52-568, Connecticut’s vexatious litigation statute,
appears anywhere therein. The plaintiff also has not alleged in the operative
complaint that the defendant lacked probable cause to commence the fore-
closure action, an essential element of a vexatious litigation action. See
Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315,
330, 994 A.2d 153 (2010). For that reason, the plaintiff’s reliance on § 52-
568 in his principal appellate brief is misplaced.
8
In March, 2015, the plaintiff received two citations for failing to remove
ice and snow from the public sidewalk abutting his property in violation of
§ 212-21 of the code. Each citation included a fine of $25.
9
The eight exhibits submitted in support of the defendant’s motion for
summary judgment were (1) the ninety-three page transcript of the April
29, 2015 trial proceeding in the foreclosure action, (2) the sixty-four page
transcript of the plaintiff’s deposition dated November 7, 2016, (3) a certified
copy of a document titled ‘‘Event History Details’’ that is dated June 10,
2013, and concerns a complaint that the Rocky Hill Police Department
received about the property, (4) the sworn affidavit of Dana McGee, the
defendant’s director of human resources and legal compliance, (5) the sworn
affidavit of Ricci, (6) the sworn affidavit of Zerio, (7) an invoice from Timber-
Jack Tree Co., LLC, regarding work performed on the property, and (8) a
copy of the court’s June 30, 2015 memorandum of decision in the foreclo-
sure action.
10
The plaintiff appended three exhibits to those memoranda: (1) a one
page portion of the minutes of the October 15, 2012 meeting of the defen-
dant’s public safety committee, (2) an electronic confirmation from the
Connecticut Judicial Branch’s e-filing service dated April 29, 2015, indicating
that the defendant had filed a reply to the plaintiff’s special defense in the
foreclosure action, and (3) a copy of a release of a tax lien dated October
15, 2012, that the defendant had filed on the land records with respect to
the property.
11
Although both documents are titled ‘‘Affidavit of Plaintiff,’’ neither con-
tains any indication that its contents were sworn to by the plaintiff before
a clerk, notary public, or commissioner of the Superior Court. See General
Statutes § 1-24a (requiring affiant to ‘‘swear to the truth of the document
or writing before any proper officer’’); see also Burton v. Mottolese, 267
Conn. 1, 46 n.47, 835 A.2d 998 (2003) (noting that ‘‘the document filed by
the plaintiff was not, in actuality, an affidavit because the contents were
not sworn to and did not satisfy the requirements of a proper affidavit’’),
cert. denied, 541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed. 2d. 983 (2004); Scinto
v. Stamm, 224 Conn. 524, 533, 620 A.2d 99 (‘‘[u]nsworn assertions of fact
. . . in an affidavit do not entitle a party to a summary judgment’’), cert.
denied, 510 U.S. 861, 114 S. Ct. 176, 126 L. Ed. 2d. 136 (1993); Viola v. O’Dell,
108 Conn. App. 760, 768, 950 A.2d 539 (2008) (holding that unsworn affidavits
are ‘‘of no evidentiary value’’ for summary judgment purposes); Krassner
v. Ansonia, 100 Conn. App. 203, 209–10, 917 A.2d 70 (2007) (‘‘[b]ecause
the witness statements were not sworn to before an officer authorized to
administer oaths, they did not meet the requirements of an affidavit’’).
12
In his operative complaint, the plaintiff alleges that the defendant com-
mitted multiple intentional torts—namely, intentional infliction of emotional
distress, trespass, trespass to chattels, fraudulent misrepresentation, and
invasion of privacy.
13
In his reply brief, the plaintiff argues that ‘‘Avoletta . . . should be
overruled’’ and that ‘‘Pane . . . should . . . be partially overruled in mat-
ters where the intentional act is performed on the part of the municipality,
versus on the part of the employee.’’ That contention is problematic for two
reasons. First, this court is not at liberty to overrule the precedent of our
Supreme Court; see, e.g., State v. Corver, 182 Conn. App. 622, 638 n.9, 190
A.3d 941, cert. denied, 330 Conn. 916, 193 A.3d 1211 (2018); and we ‘‘cannot
overrule a decision made by another panel of this court absent en banc
consideration.’’ State v. Joseph B., 187 Conn. App. 106, 124 n.13, 201 A.3d
1108, cert. denied, 331 Conn. 908, 202 A.3d 1023 (2019). Second, even if we
were not so constrained, the plaintiff has provided no good reason to depart
from that sound precedent.
14
See, e.g., General Statutes § 12-146b (authorizing municipality to with-
hold payments it otherwise would make to delinquent taxpayer); General
Statutes § 12-157 (authorizing municipality to sell property in question by
deed sale); General Statutes § 12-162 (authorizing municipality to issue alias
tax warrant to seize goods, chattels, and real estate to satisfy delinquent
tax obligation).
15
Indeed, the plaintiff has offered little in the way of documentary evidence
to substantiate his opposition to the motion for summary judgment; see
footnote 10 of this opinion; and his self-styled ‘‘affidavits’’ do not meet the
requirements for such documents under Connecticut law. See footnote 11
of this opinion.
16
A copy of those minutes was included with the plaintiff’s September
25, 2017 opposition to the motion for summary judgment as ‘‘Exhibit A.’’
The trial court did not address that exhibit in its memorandum of decision.
17
Although the defendant submitted affidavits from several of its municipal
officials in support of the motion for summary judgment, it did not furnish
an affidavit from Gilbert.
18
In his operative complaint and throughout this litigation, the plaintiff has
maintained that his tax delinquency was $4642.24 at the time the foreclosure
action commenced. The defendant has not disputed that figure.
19
We recognize, of course, that the trier of fact also could conclude that
the remediation of blight was but an ‘‘incidental motive of spite or an ulterior
purpose of benefit to the defendant.’’ (Internal quotation marks omitted.)
Mozzochi v. Beck, supra, 204 Conn. 494. On the evidence submitted by the
parties in connection with the motion for summary judgment, that factual
dispute nonetheless remains the province of the trier of fact to resolve.
20
Although the court did not address the defendant’s governmental immu-
nity defense with respect to the abuse of process claim contained in count
one of the operative complaint, we are free to do so on appeal. See Skuzinski
v. Bouchard Fuels, Inc., 240 Conn. 694, 702, 694 A.2d 788 (1997) (appellate
court ‘‘may affirm the court’s judgment on a dispositive alternat[ive] ground
for which there is support in the trial court record’’); Vollemans v. Wall-
ingford, 103 Conn. App. 188, 219, 928 A.2d 586 (2007) (‘‘[a]lthough the trial
court did not rule on those alternat[ive] grounds for summary judgment, it
is within our discretion to do so on appeal’’), aff’d, 289 Conn. 57, 956 A.2d
579 (2008); Vaillancourt v. Latifi, 81 Conn. App. 541, 544 n.4, 840 A.2d
1209 (2004) (‘‘[w]e may affirm the [summary] judgment of the court on
different grounds’’).
21
General Statutes § 52-557n (b) provides in relevant part: ‘‘Notwithstand-
ing the provisions of subsection (a) of this section, a political subdivision
of the state or any employee, officer or agent acting within the scope of
his employment or official duties shall not be liable for damages to person or
property resulting from . . . (5) the initiation of a judicial or administrative
proceeding, provided that such action is not determined to have been com-
menced or prosecuted without probable cause or with a malicious intent to
vex or trouble, as provided in section 52-568 . . . .’’ The plaintiff’s operative
complaint does not contain a vexatious litigation count. See footnote 7 of
this opinion.