Canton v. Cadle Properties of Connecticut, Inc.

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TOWN OF CANTON v. CADLE PROPERTIES OF
CONNECTICUT, INC.
(AC 40484)
Keller, Prescott and Pellegrino, Js.
Syllabus
The plaintiff town filed a petition for the appointment of a receiver of rents,
alleging that the defendant had failed to pay real property taxes on
certain of its property. After the trial court granted that motion, the
intervening defendant, M Co., the current tenant of the subject property,
filed a motion to remove the receiver, claiming, inter alia, that the
receiver had exceeded its authority under statute (§ 12-163a) by serving
it with a notice to quit and by bringing an action to collect back taxes
and prior rents. M Co. appealed from the trial court’s ruling denying its
motion, and, following a remand, the receiver filed an interim accounting
and moved the trial court to approve that accounting and its previous
disbursal of funds. M Co. objected on the ground that the accounting
submitted indicated that the receiver had failed to comply with the order
of priorities for distributions under § 12-163a, which requires the receiver
to pay the costs for utilities due on and after its appointment. The trial
court approved an updated interim accounting and overruled M Co.’s
objection, and M Co. appealed to this court. On appeal, M Co. claimed,
inter alia, that a plain reading of § 12-163a does not limit the required,
enumerated utility payments to those obligated to be paid by the owner
of the property and, thus, that the trial court should not have approved
the updated interim accounting because the receiver did not reimburse
M Co. for its utility expenditures. Held that the trial court properly
determined that, pursuant to § 12-163a, the receiver is mandated to pay
only utility bills that are the obligation of the owner, not those incurred
by tenants of the property: a literal adherence to the text of § 12-163a
was unworkable in the present circumstances because an interpretation
of the statute that relieves tenants of an obligation to pay for their own
utility expenses and places the burden on the receiver appointed under
§ 12-163a will likely lead to considerably less money to satisfy delinquent
taxes and, where necessary, the fees and costs of the receiver, thereby
defeating the primary purpose of the receivership; moreover, where, as
here, the plain meaning of the statutory text yields an unworkable result,
courts may look for interpretive guidance to extratextual evidence,
including the legislative history of § 12-163a, which indicated that it was
enacted in order to give municipalities the same tools and authority to
collect delinquent taxes that the legislature gave to utility companies
pursuant to statute (§ 16-262f), and, thus, because, under § 16-262f, the
legislature did not intend that a receiver acting on behalf of a utility
pay utility expenses for which the owner had not been directly billed,
it could be inferred that, in enacting § 12-163a, the legislature did not
intend that a receiver acting on behalf of a municipality seeking delin-
quent taxes owed by the owner bore the burden of providing all of
the occupants of the property with free utilities when, prior to the
appointment of the receiver, those occupants had been paying their
own utility bills; furthermore, common sense dictated that a statutory
procedure designed to assist financially pressed municipalities with
recoupment of delinquent taxes from property owners should not have
its effectiveness diminished by an impractical interpretation that would
give tenants the unexpected gift of free utilities by making a receiver
responsible, not just for the owner’s unpaid utility bills, but also for
payment of each and every tenant’s utility bills, and M Co.’s interpretation
of § 12-163a was further undermined by the fact that, in certain instances,
it would jeopardize the receiver’s ability to continue to collect any rental
income at subject properties.
Argued November 13, 2018—officially released February 26, 2019
Procedural History
Petition for the appointment of a receiver of rents,
brought to the Superior Court in the judicial district of
Hartford and tried to the court, Graham, J.; judgment
granting the petition and appointing Boardwalk Realty
Associates, LLC, as receiver of rents; thereafter, the
court granted the receiver’s motion to modify the order
of appointment and granted the motion to intervene
as a party defendant filed by M & S Associates, LLC;
subsequently, the court denied the intervening defen-
dant’s motion to remove the receiver, and the interven-
ing defendant appealed to this court, which reversed
in part the trial court’s judgment and remanded the
case with direction to deny the receiver’s motion to
modify the receivership orders, and the plaintiff, on
the granting of certification, appealed to the Supreme
Court, which reversed this court’s judgment in part and
remanded the case to this court with direction to affirm
the judgment of the trial court granting the receiver’s
motion for modification allowing the collection of back
rent allegedly due; thereafter, the court, Scholl, J.,
granted the receiver’s motion to approve its interim
accounting report and to disburse funds, and the
intervening defendant appealed to this court. Affirmed.
Eric H. Rothauser, for the appellant (intervening
defendant).
Logan A. Carducci, with whom were Daniel J. Krisch
and, on the brief, Kenneth R. Slater, Jr., for the appel-
lee (plaintiff).
Opinion
KELLER, J. On April 26, 2011, the plaintiff, the town
of Canton (town), filed a petition for an appointment
of a receiver of rents after the named defendant, Cadle
Properties of Connecticut, Inc. (Cadle), failed to pay
property taxes on real property it owns at 51 Albany
Turnpike in Canton. The court granted the petition on
June 20, 2011. In this appeal, the intervening defendant,
M & S Associates, LLC, which currently occupies the
subject property, appeals from the trial court’s post-
judgment order approving an interim accounting filed
by the receiver of rents, Boardwalk Realty Associates,
LLC (receiver).1 The defendant claims that the trial
court erred in granting the receiver’s motion for
approval of the interim accounting by misconstruing
General Statutes § 12-163a2 and finding that the receiver
is not required to pay, from the date of the receiver’s
appointment, the defendant’s utility costs at the subject
property. We disagree.
In a prior appeal, our Supreme Court set forth the
following undisputed facts and procedural history, all
of which are relevant to the present appeal:3 ‘‘[Cadle]
. . . is the owner of real property in Canton . . . .
After Cadle effectively abandoned the property, which
is . . . environmentally contaminated4 . . . the town
. . . filed a petition seeking the appointment of a
receiver of rents pursuant to § 12-163a. The petition
alleged that Cadle had failed to pay real property taxes
due to the town in the amount of $362,788.59, plus
interest and lien penalties, for a total amount due of
$884,263.04.5 The petition further alleged that, during
all relevant periods, the property was occupied by a
Volkswagen dealership owned by [the defendant],
which had a legal obligation to pay rent to Cadle. The
court, having found that Cadle owed the town taxes
. . . granted the petition to appoint the receiver, and
issued orders authorizing the receiver to collect all rents
or use and occupancy payments due with respect to
the property.
‘‘After the receiver served the [defendant] with a
notice to quit possession of the property on the ground
of nonpayment of rent, the [defendant] filed a motion
to intervene in the town’s action against Cadle in order
to challenge the receiver’s authority to take legal action
against it. Shortly thereafter, the receiver filed a motion
to modify the receivership order to authorize it to pur-
sue an eviction of the [defendant] in the event of non-
payment of rent, to lease the property to a new tenant,
and to use all legal process to collect back rent. Prior to
acting on the [defendant’s] pending motion to intervene,
the court granted the receiver’s motion to modify with-
out objection.
‘‘Subsequently, the trial court granted the [defen-
dant’s] motion to intervene in the action. The [defen-
dant] then filed a motion to remove the receiver,
asserting, inter alia, that the receiver had exceeded its
authority under § 12-163a by serving it with a notice to
quit and by bringing an action to collect back taxes and
prior rents. The court denied the motion for removal
. . . .’’ (Footnotes added and omitted.) Canton v. Cadle
Properties of Connecticut, Inc., 316 Conn. 851, 854–55,
114 A.3d 1191 (2015). The defendant appealed from
the court’s denial of its motion for removal. As noted
previously, the defendant, in part, prevailed in its appeal
because our Supreme Court ruled that the receiver only
had authority under the statute ‘‘to use legal process
to collect past due rent . . . .’’ Id., 862. The case was
remanded to this court with direction to affirm the trial
court’s judgment with respect to its conclusion that the
receiver has the authority to use legal process to collect
past due rent. Id., 853, 863.
On March 3, 2017, the receiver filed an interim
accounting, and moved the trial court to approve said
accounting and its previous disbursal of funds. In rele-
vant part, the defendant objected on the ground that
the accounting submitted indicated that the receiver
had failed to comply with the order of priorities for
distributions under § 12-163a, in that ‘‘[t]here is no indi-
cation in the accounting of any payments being applied
to utilities supplied after the date of the receiver’s
appointment.’’6
On April 24 and May 15, 2017, the court held a hearing
on both the receiver’s motion to approve its interim
accounting and the defendant’s objection to it. During
the April 24, 2017 hearing, the court requested that the
receiver file a more detailed accounting of the fees and
expenses that it claimed. The receiver complied by filing
an updated accounting on May 12, 2017. The defendant
argued to the court that § 12-163a (a) requires the
receiver to pay the costs for utilities due on and after its
appointment, notwithstanding the fact that the expired
lease agreement between the defendant and Cadle had
provided that the defendant would pay for the cost of
its utilities or, in continuing to operate its automobile
dealership, the defendant had been paying the utilities
supplying service to the dealership after the lease
expired. The defendant pointed to the language of § 12-
163a, arguing that the statute clearly did not distinguish
between the owner’s and the tenants’ utility obligations.
Accordingly, the defendant asserted that it was the obli-
gation of the receiver to reimburse it for approximately
$25,000 that it had expended for utilities provided to the
property since the date of the receiver’s appointment.
The receiver responded that the defendant’s interpre-
tation of the statute was ‘‘tortured,’’ and that it would
permit the defendant to ‘‘continue to squat on the prop-
erty and have its utilities reimbursed from a nonexistent
rent stream back into its pocket.’’7 The receiver further
asserted that the intent of the statute was to pay utility
bills owed to the enumerated utilities by the owner/
landlord but not those owed by the tenants. It declared
that the defendant’s interpretation was ‘‘absurd’’
because it would result in unjustly rewarding a non-
rent-paying ‘‘squatter’’ that had continued to operate its
business on the property and utilized utilities only for
its own business functions. The receiver, as of the date
of the hearing, was collecting no rental payments and
had collected, since 2011, only a small amount of rent,
resulting in a little less than $50,000 being remitted to
the town for its taxes.
In an oral decision, the trial court approved the
updated interim accounting and overruled the defen-
dant’s objection, concluding that § 12-163a only requires
the receiver to pay those utility costs ‘‘for the common
areas or the areas that are the responsibility of the
owner . . . .’’ The court concluded there was no
authority that required the receiver to reimburse ten-
ants for utility costs that they were already obligated
to pay.8 This appeal followed.
Whether § 12-163a mandates that a receiver pay util-
ity bills incurred by a tenant or former tenant occupying
the property in question is an issue ‘‘of statutory con-
struction subject to plenary review and well established
principles.’’ Canton v. Cadle Properties of Connecticut,
Inc., supra, 316 Conn. 856. General Statutes § 1-2z
instructs that ‘‘[t]he meaning of a statute shall, in the
first instance, be ascertained from 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, extratex-
tual evidence of the meaning of the statute shall not
be considered.’’ See Rainforest Cafe, Inc. v. Dept. of
Revenue Services, 293 Conn. 363, 372–81, 977 A.2d 650
(2009) (engaging in statutory analysis pursuant to
§ 1-2z).
Section 12-163a (a) mandates that a receiver of rents
is to distribute funds collected from rental or use and
occupancy payments in the following order of priority:
(1) payment for taxes due on and after the date of its
appointment; (2) payment for electric, gas, telephone,
water or heating oil supplied on and after such date;
(3) reasonable fees and costs determined by the court
to be due the receiver; (4) reasonable attorney’s fees
and costs incurred by the petitioner; (5) delinquent
taxes; and (6) amounts to such interested parties as
the court may direct. See General Statutes § 12-163a (a).
The defendant claims that the court should not have
approved the interim accounting because the receiver
did not reimburse the defendant for its utility expendi-
tures on behalf of its automobile dealership, which con-
tinues to operate on the property. It argues that a plain
reading of the statute does not limit the required, enu-
merated utility payments to those obligated to be paid
by the owner of the property, and that courts cannot
add to and modify statutory language because they
believe the legislature made drafting errors. The defen-
dant notes that receivership statutes like § 12-163a,
which are sui generis, are to be strictly construed, as
they are in derogation of the common law. See Connect-
icut Light & Power Co. v. DaSilva, 231 Conn. 441, 446,
650 A.2d 551 (1994) (in light of language, purpose and
sui generis nature of General Statutes § 16-262f, trial
court mistaken in assumption that appointment of rent
receiver for protection of utility governed by wide-rang-
ing equitable and discretionary principles of ordinary
mortgage foreclosure proceedings); Southern Connect-
icut Gas Co. v. Housing Authority, 191 Conn. 514,
518–20, 468 A.2d 574 (1983) (utility rent receivership
under § 16-262f is special statutory proceeding, not civil
action, and proceeding is sui generis); Canton v. Cadle
Properties of Connecticut, Inc., 145 Conn. App. 438,
451, 77 A.3d 144 (2013) (§ 12-163a, like § 16-262f, is sui
generis in derogation of common law), rev’d on other
grounds, 316 Conn. 851, 114 A.3d 1191 (2015).
The town argues that the defendant’s construction
of § 12-163a yields an absurd or unworkable result. It
argues that, if receivers must prioritize the tenant’s util-
ity bills in addition to the owner’s outstanding utility
obligations, tenants who, prior to the date of receiver-
ship, were responsible for their own utility bills will
continue to occupy the property without being obli-
gated to pay their utility bills. The town further argues
that this absurd and unworkable result is particularly
evident in the present case, in which the defendant
already is occupying the property rent free and
operating a business for profit. The town maintains that
it defies common sense to conclude that the legislature
created statutory rent receiverships for the purpose of
relieving tenants of their prior obligation to pay their
own utility expenses. After all, the town asserts, the
statute exists to provide relief to municipalities by amel-
iorating an owner’s delinquency for property taxes and,
therefore, construing the language in a way that furthers
this purpose is sensible.
We agree with the town that the facially plain and
unambiguous language of the disputed portion of § 12-
163a, which provides in relevant part that ‘‘[t]he receiver
shall make payments from such rents or payments for
use and occupancy . . . for electric, gas, telephone,
water or heating oil supplied on and after [the date of
its appointment],’’ leads to an unworkable result. This
is because the plain statutory language appears to
encompass not only the enumerated utilities the owner
or landlord previously was obligated to pay at the time
of the receiver’s appointment, but all of the enumerated
utilities serving the property, including those utilities
that the tenants or other occupants of the property
previously were obligated to pay.
A literal adherence to the text of the statute is
unworkable in the present circumstances. An interpre-
tation of the statute that relieves tenants of an obligation
to pay for their own utility expenses and places the
burden on the receiver appointed under § 12-163a will
likely lead to considerably less money to satisfy the
amount owed in unpaid property taxes and, where nec-
essary, the fees and costs of the receiver, thereby
defeating the primary purpose of the receivership. In
addition, such an interpretation could create a situation
where there may be insufficient funds collected by the
receiver to commence paying all of the tenants’ utility
bills if the rents payable prior to the appointment of
the receiver were never calculated to include payment
for utilities provided to each and every rental unit. Such
a scenario would create problems even for previously
responsible tenants.
Because we have determined that the plain meaning
of the statutory text yields an unworkable result, we
may look for interpretive guidance to extratextual evi-
dence, such as the legislative history and circumstances
surrounding the enactment of § 12-163a, to the legisla-
tive policy it was designed to implement, and to its
relationship to existing legislation. ‘‘[U]nder § 1-2z, we
are free to examine extratextual evidence of the mean-
ing of a statute, including its legislative history, when
application of the statute’s plain and unambiguous lan-
guage leads to an unworkable result. See General Stat-
utes § 1-2z.’’ (Footnote omitted.) Rivers v. New Britain,
288 Conn. 1, 18–19, 950 A.2d 1247 (2008).
Our Supreme Court’s statutory analysis in Rivers is
particularly instructive in the present case. In Rivers,
our Supreme Court observed that our legislature has
not defined the word ‘‘unworkable’’ as it is used in § 1-
2z. Id., 17. In defining that term, our Supreme Court
looked to the dictionary definition of ‘‘unworkable,’’
and relied on the fact that ‘‘[t]he American Heritage
Dictionary defines ‘unworkable’ as ‘not capable of being
put into practice successfully.’ American Heritage Dic-
tionary of the English Language (3d Ed. 1992).’’ (Foot-
note omitted.) Rivers v. New Britain, supra, 17–18.
The issue in Rivers was whether General Statutes
§ 7-163a, which was enacted to relieve municipalities of
the responsibility to remove snow and ice on municipal
sidewalks by permitting municipalities to adopt an ordi-
nance that shifts that responsibility to ‘‘the owner or
person in possession and control of land abutting a
public sidewalk’’; General Statutes § 7-163a (c) (1);
should be interpreted such that it relieved municipali-
ties that have passed such an ordinance from liability
in situations in which the abutting landowner is the
state. Rivers v. New Britain, supra, 288 Conn. 3. Our
Supreme Court observed that, in enacting § 7-163a, the
legislature did not waive the state’s sovereign immunity
from liability or suit, and that ‘‘§ 7-163a imposes no
duty or liability on the state with respect to municipal
sidewalks that abut state property.’’ Id., 9. The court,
mindful of the obvious public safety ramifications of
its interpretation of the statute, concluded that
‘‘although the language of § 7-163a is facially plain and
unambiguous, its application yields an unworkable
result when, as in the present case, the state is the
abutting landowner because, under that factual sce-
nario, neither the municipality nor the state has a duty
to clear the sidewalk of ice and snow.’’ Id.
Accordingly, our Supreme Court, after reviewing the
legislative history of § 7-163a, exempted the state from
the liability imposed by the facially plain and unambigu-
ous statutory language in § 7-163a that allowed the city
to shift responsibility to abutting landowners. Id., 12,
22–23. Our Supreme Court concluded that when the
legislature referred to such owner or person in posses-
sion and control of the abutting land, it meant to permit
the municipality to shift responsibility only to private
abutting property owners or persons in possession and
control. Id., 21–23.
In enacting § 12-163a, the legislature intended to
assist municipalities in collecting delinquent taxes
through rent receivers. The legislature also sought to
give municipalities the same tools and authority to col-
lect delinquent taxes that it gave to utility companies
pursuant to § 16-262f. Because § 12-163a is modeled
after § 16-262f, an examination of § 16-262f sheds light
on the proper interpretation of § 12-163a.
Section 16-262f concerns petitions for receivership
of rents and common expenses by electric distribution,
gas and telephone companies. That statute states in
relevant part: ‘‘(a) (1) Upon the default of the owner
. . . of a residential dwelling who is billed directly by
an electric distribution, gas or telephone company or
by a municipal utility for electric or gas utility service
furnished to such building, such company or municipal
utility or electric supplier . . . may petition the Supe-
rior Court or a judge thereof, for appointment of a
receiver of the rents or payments for use and occupancy
or common expenses, as defined in section 47-202, for
any dwelling for which the owner . . . is in default.
. . .’’ (Emphasis added.) Section 16-262f is intended
to address the owner’s delinquencies with respect to
utilities if the owner is directly billed for such expenses.
It does not contemplate that once a receiver is
appointed to collect rent or use and occupancy or com-
mon expenses normally paid to the owner, that the
receiver also must pay the cost of utilities that, prior
to its appointment, had been billed to the occupants
of the subject premises because the owner had not
defaulted on any obligation in connection with the occu-
pants’ personal utility bills. Our Supreme Court
observed that the purpose of § 16-262f was to permit
‘‘public service companies to petition for a statutory
rent receivership under limited circumstances that are
statutorily linked to the [General Statutes] § 16-262e (a)
prohibition on the termination of utility services. Under
§ 16-262e (a), a service may not be terminated: (1) to
a residential dwelling; (2) despite nonpayment of a
delinquent account; (3) for service billed directly to the
residential building’s . . . owner . . . and (4) when it
is impracticable for occupants of the building to receive
service in their own name. Unable to terminate service
to such a residential dwelling, public service companies
are expressly instructed, by § 16-262e (a), to pursue the
remedy provided in [§] 16-262f.’’ (Footnote omitted;
internal quotation marks omitted.) Southern Connecti-
cut Gas Co. v. Housing Authority, supra, 191 Conn.
518–19.
In 1995, when § 12-163a was enacted, Representative
Robert D. Godfrey, the sponsor of House Bill No. 5331,
stated: ‘‘You’re hearing two bills of mine this morning
. . . . What they have in common is they both enable
municipalities to use tools that other entities already
have at their disposal. . . . The second bill, 5331,
which authorizes municipalities to petition for a
receiver of rents for the collection of delinquent prop-
erty taxes . . . gives municipalities the same kind of
power as we currently give to utilities, which can peti-
tion for receivership of rent for back payment of elec-
tric, water, power, whatever.’’ Conn. Joint Standing
Committee Hearings, Planning and Development, Pt. 1,
1995 Sess., pp. 49–50. Because, under § 16-262f, the
legislature did not intend that a receiver acting on behalf
of a utility pay utility expenses for which the owner
had not been directly billed, we may infer that, in
enacting § 12-163a, the legislature did not intend that
a receiver acting on behalf of a municipality seeking
delinquent taxes owed by the owner bore the burden
of providing all of the occupants of the property with
free utilities when, prior to the appointment of the
receiver, those occupants had been paying their own
utility bills. To interpret § 12-163a in the manner the
defendant proposes would undermine the stated legisla-
tive purpose of giving municipalities the ‘‘same kind of
power’’ that § 16-262f gave to utilities. Such an interpre-
tation would result in a costly and unworkable mecha-
nism for municipalities to use in collecting delinquent
property taxes.
Moreover, common sense dictates that a statutory
procedure designed to assist financially pressed munici-
palities with recoupment of delinquent taxes from prop-
erty owners should not have its effectiveness
diminished by an impractical interpretation that would
give tenants the unexpected gift of free utilities by mak-
ing a receiver responsible, not just for the owner’s
unpaid utility bills, but also for payment of each and
every tenant’s utility bills. Such an unworkable result
would, in many instances, significantly undermine the
intent of the legislature to assist municipalities in col-
lecting taxes by reducing the amount of rent that could
be applied by the receiver to payment of delinquent
taxes and reimbursement for the fees and costs neces-
sarily expended in filing the petition.
The defendant’s interpretation of § 12-163a is further
undermined by the fact that, in many instances, it would
jeopardize the receiver’s ability to continue to collect
any rental income at subject properties. We may infer
that the legislature, in requiring that the receiver distrib-
ute funds for utility payments before distributing other
payments, including those for delinquent taxes, sought
to ensure that the utilities at a subject property that
are the responsibility of the owner would continue to
be supplied to the property during the time in which a
receiver is collecting rents or payments for use and
occupancy. It is reasonable to assume that, if an owner
fails to pay real property taxes because it is insolvent,
it may be unable to pay for utilities at its rental property
that are its responsibility, such as utilities that supply
and benefit common areas that are not within the con-
trol of its tenants. It is not difficult to imagine a situation
in which a lack of utilities in such common areas of a
rental property would create problems for tenants and,
thus, that the lack of utilities that would be supplied
by an owner would jeopardize the property’s continued
ability to generate any rental income. Thus, although
the legislature had a valid reason for ensuring that an
owner’s utility payments are satisfied by the receiver,
such statutory purpose does not apply to the expenses
incurred by tenants.
In light of the foregoing, we conclude that the trial
court properly determined that, pursuant to § 12-163a,
the receiver is mandated to pay only utility bills that
are the obligation of the owner, not those incurred by
tenants of the subject property.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Both the named defendant, Cadle, which did not appear in the trial court,
and the receiver are not participating in this appeal. This appeal addresses
only the claim of error raised by M & S Associates, LLC, relating to the trial
court’s approval of the receiver’s accounting. In this opinion, we refer to
M & S Associates, LLC, as the defendant.
2
General Statutes § 12-163a provides in pertinent part: ‘‘(a) Any municipal-
ity may petition the Superior Court or a judge thereof, for appointment of
a receiver of the rents or payments for use and occupancy for any property
for which the owner, agent, lessor or manager is delinquent in the payment
of real property taxes. The court or judge shall forthwith issue an order to
show cause why a receiver should not be appointed, which shall be served
upon the owner, agent, lessor, manager, mortgagees, assignees of rent and
other parties with an interest in the rents or payments for use and occupancy
of the property in a manner most reasonably calculated to give notice to
such owner, lessor, manager, mortgagees, assignees of rent and other parties
with an interest in the rents or payments for use and occupancy of the
property as determined by such court or judge, including, but not limited
to, a posting of such order on the premises in question. A hearing shall be
had on such order no later than seventy-two hours after its issuance or the
first court day thereafter. The sole purpose of such a hearing shall be to
determine whether there is an amount due and owing between the owner,
agent, lessor or manager and the municipality. The court shall make a
determination of any amount due and owing and any amount so determined
shall constitute a lien upon the real property of such owner. A certificate
of such amount may be recorded in the land records of the town in which
such property is located describing the amount of the lien and the name of
the party who owes the taxes. When the amount due and owing has been
paid, the municipality shall issue a certificate discharging the lien and shall
file the certificate in the land records of the town in which such lien was
recorded. The receiver appointed by the court shall collect all rents or
payments for use and occupancy forthcoming from the occupants of the
building in question in place of the owner, agent, lessor or manager. The
receiver shall make payments from such rents or payments for use and
occupancy, first for taxes due on and after the date of his appointment and
then for electric, gas, telephone, water or heating oil supplied on and after
such date. The owner, agent, lessor or manager shall be liable for such
reasonable fees and costs determined by the court to be due the receiver,
which fees and costs may be recovered from the rents or payments for use
and occupancy under the control of the receiver, provided no such fees or
costs shall be recovered until after payment for current taxes, electric, gas,
telephone and water service and heating oil deliveries has been made. The
owner, agent, lessor or manager shall be liable to the petitioner for reason-
able attorney’s fees and costs incurred by the petitioner, provided no such
fees or costs shall be recovered until after payment for current taxes, electric,
gas, telephone and water service and heating oil deliveries has been made
and after payments of reasonable fees and costs to the receiver. Any moneys
remaining thereafter shall be used to pay the delinquent real property taxes
and any money remaining thereafter shall be paid to such parties as the
court may direct after notice to the parties with an interest in the rent or
payment for use and occupancy of the property and after a hearing. The
court may order an accounting to be made at such times as it determines
to be just, reasonable and necessary. . . .’’
3
In the defendant’s prior appeal, our Supreme Court considered the issue
of whether § 12-163a authorizes a receiver (1) to evict a tenant from the
property in the event of a default; (2) to lease the property to a new tenant;
and (3) to use legal process to collect back rent allegedly due. Canton v.
Cadle Properties of Connecticut, Inc., 316 Conn. 851, 853, 114 A.3d 1191
(2015). Our Supreme Court concluded that the statute does authorize a
receiver to use legal process to collect back rent allegedly due prior to the
date of the receiver’s appointment, but that neither the eviction of a tenant
nor the leasing of the property to a new tenant fall within the scope of a
receiver’s authority. Id.
4
On December 4, 2000, in a related case, the trial court, Rubinow, J.,
ordered Cadle to comply with a pollution abatement order of the Department
of Environmental Protection to address contaminated soil and groundwater
and assessed a civil penalty in the amount of $2,143,000 against Cadle.
Holbrook v. Cadle Properties of Connecticut, Inc., Superior Court, judicial
district of Hartford, Docket No. CV-XX-XXXXXXX-S (December 4, 2000) (29
Conn. L. Rptr. 167).
5
The petition was filed on April 26, 2011. On May 12, 2017, the town filed
a report with the trial court indicating that the amount of real estate taxes
due and owing for the period from June 23, 2011, the date the receiver was
appointed, to April 25, 2017, including interest and lien fees, was $208,731.43.
6
The receiver also initiated an action against the defendant in the Housing
Session of the Superior Court for the judicial district of Hartford. The receiver
sought damages for past due rent and/or use and occupancy; the defendant
filed a counterclaim asserting that the receiver had failed to comply with
the order of disbursements in § 12-163a, essentially raising the same issue
presented in this appeal. Both parties moved for summary judgment as to
liability on the receiver’s complaint. On June 11, 2018, the court, Miller, J.,
granted the defendant’s motion for summary judgment, denied the receiver’s
motion and rendered judgment in favor of the defendant. The court did not
rule on the defendant’s counterclaim alleging improper disbursement. See
Boardwalk Realty Associates, LLC v. M & S Gateway Associates, LLC,
Superior Court, judicial district of Hartford, Housing Session, Docket No.
CV-XX-XXXXXXX-S (June 11, 2018). The receiver filed an appeal (AC 41831),
which currently is pending in this court. According to the preliminary state-
ment of issues, the receiver claims that the court improperly concluded that
the receiver could not collect rent or use and occupancy from the defendant.
7
The defendant conceded that after the appointment of the receiver, in
response to the threat of eviction, it made, without prejudice, eight rental
payments to the receiver totaling $64,000 between October, 2011, and April,
2012, but then ceased making rental payments after taking the position that
it no longer owed rent to Cadle and, consequently, owed no rent to the
receiver. The updated accounting indicates that the town had been paid
$49,165 for back taxes and interest.
8
The defendant has relied on the court’s oral ruling of May 15, 2017. The
record does not contain a signed transcript of the court’s decision, as
required by Practice Book § 64-1 (a), and the defendant did not file a motion
pursuant to § 64-1 (b) providing notice that the court had not filed a signed
transcript of its oral decision. Nor did the defendant take any additional
steps to obtain a decision in compliance with § 64-1 (a). In some cases in
which the requirements of § 64-1 (a) have not been followed, this court has
declined to review the claims raised on appeal due to the lack of an adequate
record. Despite the absence of a signed transcript of the court’s oral decision
or a written memorandum of decision, however, our ability to review the
claims raised in the present appeal is not hampered because we are able
to readily identify a sufficient, concise statement of the court’s findings in
the transcript of the proceedings. See State v. Brunette, 92 Conn. App. 440,
446, 886 A.2d 427 (2005), cert. denied, 277 Conn. 902, 891 A.2d 2 (2006). We
note our concern, however, that the trial court’s noncompliance with § 64-1
is a reoccurring issue in appeals involving oral decisions. See, e.g., Emeritus
Senior Living v. Lepore, 183 Conn. App. 23, 25 n.2, 191 A.3d 212 (2018);
Nationstar Mortgage, LLC v. Mollo, 180 Conn. App. 782, 789 n.7, 185 A.3d
643 (2018); Rose B. v. Dawson, 175 Conn. App. 800, 803–805, 169 A.3d 346
(2017); Medeiros v. Medeiros, 175 Conn. App. 174, 177 n.1, 167 A.3d 967
(2017); State v. Chankar, 173 Conn. App. 227, 234 n.7, 162 A.3d 756, cert.
denied, 326 Conn. 914, 173 A.3d 390 (2017).