On Appeal from Superior Court, Lamoille Unit, Civil Division, Timothy B. Tomasi, J. (motion to dismiss); Dennis R. Pearson, J. (final judgment)
Matthew A. Burgess, Pro Se, Morristown, Plaintiff-Appellant.
Graham Hayes Govoni of Black & Govoni, PLLC., Morrisville, for Defendant-Appellee Lamoille Housing Partnership, Inc.
James R. Dean Mahoney of Polow Polow & Mahoney, PLLC, Hyde Park, for Defendants-Appellees Town of Morristown and Wilson.
Thomas M. Higgins of Pierson Wadhams Quinn Yates & Coffrin, LLP, Burlington, for Defendant-Appellee Green.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1.Plaintiff Matthew Burgess appeals decisions of the superior court's civil division dismissing certain defendants and granting summary judgment to another defendant with respect to plaintiff's claim that he is entitled to either a tax collector's deed conveying him property he redeemed from foreclosure or damages compensating him for not being conveyed the deed. We affirm.
¶ 2. In September 2001, plaintiff's parents, John and Virginia Burgess, mortgaged property located in defendant Town of Morristown through defendant Lamoille Housing Partnership, Inc. (LHP), a nonprofit corporation that assists people in finding affordable housing. The Burgesses purchased the property through LHP's Home Land Program, by which ownership of the underlying land was severed from ownership of the house in which the Burgesses resided. Under the arrangement, a warranty deed from the U.S. Department of Agriculture Rural Development conveyed the land and improvements to the Burgesses, who granted a mortgage deed to the USDA Rural Development encumbering both the land and improvements. The Burgesses then conveyed the land to LHP, retaining only the title to the improvements. LHP and the Burgesses then entered into a ground lease granting the Burgesses a leasehold interest in the land for a ninety-nine-year term subject to certain terms and conditions, including that the Burgesses pay the property taxes on the entire property.
¶ 3. The Burgesses later disputed their obligation to pay property taxes and, in August 2009, filed a declaratory judgment action against the Town and LHP, claiming that their residential home should be exempt from real estate taxes and that the taxes they had paid entitled them to an ownership interest in the land itself, thereby extinguishing LHP's rights. A three-justice panel of this Court upheld the trial court's determinations that the Burgesses lacked standing to challenge the Town's taxation of the property and that their payment of taxes on the land, pursuant to their agreement with LHP, did not give them an ownership interest in the land. See Burgess v. Lamoille Housing Project, No. 2010-396, 2011 WL 4975238, at *3-4 (Vt. April 21, 2011) (unpub. mem.), http://www.vermontjudiciary.org/LC/unpublishedeo.aspx.
¶ 4. When that litigation concluded, the Burgesses' property taxes were delinquent. In 2012, the Morristown town clerk, defendant Mary Ann Wilson, in her role as delinquent tax collector, hired defendant Attorney Sharon Green to conduct a tax sale of certain properties, including the Burgess property. On February 2, 2012, the tax sale was conducted by Attorney Green acting as counsel for the Town. Plaintiff, acting in his own right rather than as an agent for his parents, made a bid at the tax sale, but his bid was not the highest. The property was purchased by Winston Jennison Investments, LLC, for $2500, subject to its possible redemption. LHP, the record owner, apparently did not attend or participate in the tax sale. Two weeks after the tax sale, plaintiff tendered a check for $1373 to Attorney Green. Plaintiff's letter accompanying the check stated that the check was being "tendered in reliance on your representations that said enclosed amount is full and final satisfaction for redemption of subject property located at 352 Jersey Heights, in Morristown, Vermont." After the check was delivered, the town clerk's office issued plaintiff a certificate of redemption stating that the amount required to redeem the property owned by LHP was paid on February 21, 2012. The certificate was then recorded in the Town land records. As the result of the redemption, the Burgesses continued to reside at their home pursuant to their lease with LHP.
¶ 5. In December 2013, plaintiff filed a complaint against the Town and the town clerk (municipal defendants), LHP, and Attorney Green, listing as counts declaratory judgment and equitable relief, negligent misrepresentation, breach of contract, and promissory estoppel. The complaint alleged that on February 21, 2012, Attorney Green, in her capacity as attorney and agent for the municipal defendants, told plaintiff that if he submitted to her $1373 he would acquire a right to receive a tax collector's deed to the subject parcel one year and a day after the date of the tax sale. It further stated that in reliance upon Attorney Green's representation, plaintiff issued Attorney Green a check for that amount, and that she gave him a certificate of redemption, but declined to have the Town deliver to him a tax collector's deed one year and a day after the tax sale, as promised. The complaint asked the court to enter a declaratory judgment that he is entitled either to a tax collector's deed conveying the subject property to him or damages in an amount equal to the value of the subject property, which he indicated was $50, 000.
¶ 6. On April 24, 2014, the superior court: (1) denied plaintiff's request for injunctive or declaratory relief against the municipal defendants because they were not legally authorized under Vermont law to transfer the property to him; (2) dismissed LHP as a party because plaintiff had failed to state any legally cognizable claim against it; (3) denied the municipal defendants' motion to dismiss on immunity grounds, concluding that although the municipal defendants were entitled to immunity based on plaintiff's allegations, plaintiff should be allowed limited discovery on the issue of whether the Town had purchased insurance that covered his claims and thus waived its immunity pursuant to 29 V.S.A. § 1403; (4) denied Attorney Green's motion to dismiss based on her claim of qualified immunity; and (5) granted Attorney Green's motion to dismiss plaintiff's breach-of-contract and promissory-estoppel counts, but denied her motion to dismiss plaintiff's negligent-misrepresentation count.
¶ 7. On February 6, 2015, the superior court, with a different judge presiding, granted the municipal defendants' renewed motion to dismiss based on its determination that the Town had not waived its municipal immunity and that plaintiff failed to state any specific facts in his complaint that would make the town clerk personally and independently liable on any recognized legal theory. On May 20, 2015, the superior court denied defendant's motion to reconsider the dismissal of LHP as a defendant and granted Attorney Green's motion for summary judgment on plaintiff's negligent representation claim, ruling that Attorney Green's legal duty was to the Town and not plaintiff, and that ...