272 Conn. 489 | Conn. | 2005
Opinion
The plaintiff, the city of New Haven, appeals
The record reveals the following facts and procedural background. For the tax years 1996 through 2002, the defendant failed to pay real estate taxes on property she owned at 124 Crescent Street, New Haven. The plaintiff brought this action seeking to foreclose its tax liens on the defendant’s real property for the tax years in question. After the trial court granted the plaintiffs motion for summary judgment as to liability only, the plaintiff filed a motion for strict foreclosure. At the hearing on the motion, the plaintiff presented its affidavit of debt, which included the collection agency fee incurred by the plaintiff in its efforts to collect the taxes owed. According to the affidavit of debt, the defendant’s total debt was $35,207.44, including a $2668.29 collection fee, for the tax years 1996 through 2002. After reviewing the affidavit of debt, the court scheduled a special hearing and instructed the plaintiff to present evidence at the hearing in support of its inclusion of the collection agency fee as part of the tax.
At the special hearing, C.J. Cuticello, the plaintiffs tax collector, testified that the plaintiff has a contract
Sylvan Ross, the vice president of operations at JER, testified at the hearing that the services provided by JER under the contract include preparing and mailing collection letters, making telephone calls, performing skip tracing to locate the taxpayer, working with the plaintiff on collection strategies, and maintaining contact with the taxpayer and the mortgage companies. Further, if JER’s collection efforts fail, JER refers the matter to local law firms to initiate foreclosure proceedings and thereafter monitors the foreclosures. Ross further testified that, because the agency handles the accounts in bulk, it does not maintain records of time devoted to individual cases.
At the hearing, the court refused to award the collection agency fee unless the plaintiff demonstrated what
The plaintiff claims that the trial court improperly failed to award JER’s collection fee as part of the defendant’s debt. We agree. We conclude that, pursuant to § 12-166, a municipality seeking to collect delinquent taxes is entitled to include as part of those taxes the collection fees of a collection agency, without having to establish the relationship between the amount of that fee and the specific services that the agency performed regarding that particular delinquent taxpayer or those specific delinquent taxes. Put another way, as in the present case, the municipality is entitled to collect from the taxpayer the collection fee charged to it by the agency at the time of the referral of the delinquent account.
The question of whether § 12-166 allows the trial court to award a collection fee for a particular debt owed by a delinquent taxpayer only if it is demonstrated that the fee reflects the value of the services performed by the collection agency in the collection of that particular debt is one of statutory interpretation, over which we have plenary review. Commission on Human Rights & Opportunities v. Board of Education, 270 Conn. 665, 686, 855 A.2d 212 (2004).
We begin our analysis with the language of the statute. Section 12-166 sets forth the powers and duties of municipal tax collectors and defines “ ‘tax’ ” for purposes of that section as including “each property tax and each installment and part thereof due to a municipality, as such tax may have been increased by interest, penalties, fees and charges, including collection fees of a collection agency and attorneys’ fees, provided
The legislative history of No. 93-318, § 2, of the 1993 Public Acts (P.A. 93-318), provides further support for our conclusion that the inclusion of the collection fee in the tax is not subject to the discretion of the court. The primary purpose of § 2 of P.A. 93-318, which added to § 12-166 the language, “including collection fees of a collection agency,” was to clarify “the ability of municipalities to use private collection agencies to collect unpaid property taxes.” 36 H.R. Proc., Pt. 25,1993 Sess., p. 9021, remarks of Representative Jefferson B. Davis. Representative Davis further noted that P.A. 93-318, § 2, clarified “that any collection fee charged by [a] properly delegated collection agency can be included in the total tax due.” Id. The legislature, thus, simultaneously acknowledged the legitimate role that collection agencies play in the municipal tax collection process and
Moreover, when P.A. 93-318 was enacted, General Statutes § 36a-805 (a), which lists prohibited practices for consumer collection agencies, already prohibited collection agencies from charging a fee “in excess of fifteen per cent of the amount actually collected on the debt . . . .” General Statutes § 36a-805 (a) (13). We presume that the legislature was aware of existing statutes at the time that it enacted P.A. 93-318. See Wiseman v. Armstrong, 269 Conn. 802, 822, 850 A.2d 114 (2004). Thus, it is reasonable to infer, based on the legislative history of P.A. 93-318 and based on the existing text of § 36a-805 (a) (13), that the legislature was aware at the time of the amendment to § 12-166 that municipalities generally contract with collection agencies on a percentage fee basis.
There is nothing in the legislative history of P.A. 93-318 to contradict the strong linguistic suggestion that the amount of the collection fee, unlike the attorney’s fee, is not subject to the approval of the court. Moreover, there is nothing, in either the language or the history of the legislation to support the requirement imposed by the trial court in the present case that the individual fee must be tied to the collection agency’s efforts on a case-by-case basis. In addition, the obvious policy underlying the statute is that, if a municipality chooses to employ a collection agency to collect delinquent taxes, the cost of that collection should be borne by the delinquent taxpayers rather than by those who duly pay their taxes. Accordingly, on the basis of the language of the statute, its relationship to § 36a-805 (a) (13), its legislative history and its policy, we conclude
The defendant argues that we should affirm the trial court’s judgment on the alternate ground that, because she never received notice of the collection fee, the imposition of the fee as a tax violated her right to due process under the fourteenth amendment to the United States constitution and article first, §§ 1, 2 and 8, of the Connecticut constitution. The plaintiff claims that this argument is not properly before this court because the defendant never raised it in the trial court. The defendant claims, however, that she did raise this claim in the trial court. We agree with the plaintiff.
In determining whether the defendant has preserved this issue for review, we are mindful of her pro se status in the trial court. “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants
“Only in [the] most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” (Internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 82, 848 A.2d 395 (2004). This rule applies equally to alternate grounds for affirmance. See Thomas v. West Haven, 249 Conn. 385, 390 n.11, 734 A.2d 535 (1999) (“[t]he appellee’s right to file a [Practice Book] § 63-4 [a] [1] statement has not eliminated the duty to have raised the issue in the trial court” [internal quotation marks omitted]), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000); see also Practice Book § 60-5 (“[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial”).
Under these standards, we conclude that the defendant did not properly raise her due process claim before the trial court. Specifically, the defendant never alleged in any pleading that her right to due process had been violated. Thus, when the plaintiff appeared at the hearing ordered by the court, it had no notice that the question of whether the defendant had received the delinquency notices, letters and the revised bill was at issue. Furthermore, the trial court did not address the
The defendant’s claim that she raised the due process issue of notice in the trial court at the special hearing is unpersuasive. She focuses on two exchanges during the hearing. First, when the defendant questioned Ross on the stand, she stated that she never had received a registered or certified letter from anyone regarding the collection agency fee, and she asked Ross what type of contact he had made with her. She also asked Ross whether he could produce copies of letters that he may have sent to her or records of telephone conversations he may have had with her or her husband. Second, when the defendant was testifying under oath on the stand, the court questioned her as to whether she had anything to say in regard to the evidence presented during the hearing. The defendant responded that she “just never heard from anybody.” As we have indicated, the plaintiff had no notice prior to the hearing that it would be required to prove specific notice to the defendant of the collection fee. In addition, the record is bereft of any legal claim by the defendant of a due process violation. Simply put, this record does not establish that the defendant properly raised a due process claim in the trial court.
The defendant also claims that the trial court raised the issue of due process sua sponte when it questioned Cuticello regarding whether the letters sent out by the plaintiff informed the taxpayer of the collection fee.
The judgment is reversed in part and the case is remanded to the trial court for recalculation of the debt and for new terms of the foreclosure sale.
In this opinion the other justices concurred.
The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).
Although lienholders other than the plaintiff were also named as defendants in the trial court, none of them is a party to this appeal. We refer herein to Bonner as the defendant.
General Statutes § 12-166 provides in relevant part: “Unless the context otherwise requires, ‘tax’, wherever used in this section, includes each property tax and each installment and part thereof due to a municipality, as such tax may have been increased by interest, penalties, fees and charges, including collection fees of a collection agency and attorneys’ fees, provided such attorneys’ fees shall be limited to those ordered by the court in any court action or proceeding brought to recover such tax. . . .”
Although the plaintiff sought a strict foreclosure, it does not challenge on appeal the court’s judgment of foreclosure by sale.
“In State v. Courchesne, [262 Conn. 537, 567-78, 816 A.2d 562 (2003)], this court explained that, as part of the judicial task of statutory interpretation, we would not follow the so-called plain meaning rule, which operates to preclude the court, in certain cases, from considering sources in addition to the statutory text in order to determine its meaning. We are cognizant that, subsequent to our decision in Courchesne, No. 03-154, § 1, of the 2003
We note that this case does not present a situation in which the collection fee is so disproportionate to the amount of taxes due that it is unconscionable or egregious. Thus, that question is not before us, and we express no opinion on it. In this connection, we note that General Statutes § 36a-805 (a), which lists prohibited practices for consumer collection agencies, provides some guidance on the presumptive reasonableness of this particular collection fee. Specifically, § 36a-805 (a) prohibits such agencies from charging a fee “in excess of fifteen per cent of the amount actually collected on the debt . . . .” General Statutes § 36a-805 (a) (13). Although the present case does not involve a consumer collection fee, the ceiling imposed by the legislature in that context nevertheless provides support for the proposition that a 9 percent collection fee added to a delinquent tax is not unconscionable or egregious.
Although the defendant proposed additional alternate grounds for affirmance, the record does not show that she raised any of these claims in the trial court, and the defendant does not claim that she did. Therefore, in the absence of a sufficient record, we decline to address them. See State v. Linares, 232 Conn. 345, 391 n.19, 655 A.2d 737 (1995).
We do not intimate by this discussion that a lack of such notice necessarily would constitute a due process violation.