Opinion
No. X06 CV 04 0184523 S
October 5, 2007
MEMORANDUM OF DECISION ON THE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
STATEMENT OF THE CASE
The plaintiff in this action, Bridgeport Harbour Place I, LLC (BHP), has filed a ten-count second revised complaint (complaint) against sixteen defendants. The gravamen of the complaint is the plaintiff's claim that the city of Bridgeport breached a November 1998 agreement with the plaintiff for the plaintiff to develop Steel Point (also known as Harbour Place) located in Bridgeport, Connecticut. Among its claims, the plaintiff alleges that the defendant Joseph Ganim, the then city mayor, had a secret plan with other defendants to oust the plaintiff as the developer of the project so that it could be replaced by the defendant United Properties, Ltd. United Properties was owned or controlled by the defendants Alfred Lenoci, Sr. and Alfred Lenoci, Jr. The complaint charges that the Lenocis had agreed to pay bribes to Ganim and to the defendant Paul Pinto in exchange for the selection of United Properties as the developer of Steel Point. Complaint. ¶¶ 46, 47. The complaint alleges that the defendants either participated in this plan or wrongly facilitated it.
To support its conspiracy claims, the plaintiff relies on the federal convictions of Ganim, Pinto and Leonard Grimaldi, and testimony from Ganim's criminal trial, among other evidence.
Thirteen defendants have filed motions for summary judgment. As explained below, the court grants the motion filed by the city as to counts VI and VII of the complaint alleging negligence and quantum meruit. The court grants the motions filed by Alfred Lenoci, Jr., Joseph Ganim, Charles Willinger, Jr., and Willinger, Willinger Bucci, P.C. as to count X of the complaint alleging statutory theft under General Statutes § 52-564. The court also grants the motion filed by United Environmental Remediation Company (United Environmental) as to count II of the complaint alleging tedious interference with contractual relationships. The defendants' motions for summary judgment are denied in all other respects.
Seven motions for summary judgment have been filed by the following thirteen defendants: the city of Bridgeport; United Environmental Remediation Company; Alfred Lenoci, Jr.; Joseph P. Ganim; Charles J. Willinger, Jr., and his law firm, Willinger, Willinger Bucci (the Willinger defendants); HNTB; and Alfred Lenoci, Sr., Michael Schinella, United Properties, Ltd, 815 Lafayette Centre, LLC, United Investments, LLC, and Crescent Avenue Development, LLC.
The following defendants have not filed motions for summary judgment: Paul Pinto, Joseph Kasper, and Kasper Group, Inc. Consequently, all references to the defendants in this memorandum exclude the defendants Paul J. Pinto, Joseph T. Kasper, Jr., and the Kasper Group, Inc. The court also notes that the complaint against Leonard Grimaldi and Harbor Communications, Inc., was withdrawn on June 12, 2007.
DISCUSSION I
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary Judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts . . ." Citation omitted.) Weber v. U.S. Sterling Securities, 282 Conn. 722, 728, 924 A.2d 816 (2007). "It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, 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 judgment 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 . . ." (Citations omitted; internal quotation marks omitted.) Martinez v. Southington Metal Fabricating Co., 101 Conn.App. 796, 799, 924 A.2d 150 (2007). When a defense to a motion for summary judgment applies to part of the moving party's claim, this party may have final judgment "for so much of the claim as the defense does not apply to . . . and the action may be severed and proceeded with as respects the remainder of the claim." Practice Book § 17-51. It is well settled that when deciding a motion for summary judgment, "the trial court does not sit as the trier of fact . . . [T] he trial court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Citations omitted; internal quotation marks omitted.) Field v. Kearns, 43 Conn.App. 265, 269-70, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996).II LOST PROFITS
The court first addresses the argument that summary judgment should enter against the plaintiff on its demand for lost profits. The following defendants have either expressly moved for summary judgment on this issue or joined in another defendant's motion seeking this relief: the city of Bridgeport; United Environmental Redevelopment Company; Alfred Lenoci, Sr.; Michael Schinella; United Properties, Ltd; 815 Lafayette Centre, LLC; United Investments, LLC; Crescent Avenue Development, LLC; Alfred Lenoci, Jr.; Joseph P. Ganim; Charles J. Willinger, Jr., and his law firm, Willinger, Willinger Bucci (the Willinger defendants).
The defendant HTNB has moved for summary judgment, but has not sought judgment specifically regarding the plaintiff's demand for lost profits.
As previously stated, the plaintiff claims that Ganim (the city's mayor during the relevant time period) and other defendants had a secret plan to oust the plaintiff as the developer of the Steel Point project so that it could be replaced by United Properties, an entity owned or controlled by Alfred Lenoci, Sr. and Alfred Lenoci, Jr. The plaintiff asserts claims against the city for breach of contract (count IV), breach of the implied covenant of good faith and fair dealing (count V), negligence (count VI), and quantum meruit (count VII). The plaintiff asserts claims against the other defendants for tortious interference with contractual relations, fraudulent misrepresentation, and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a. As to all these claims, the plaintiff demands, in relevant part, "compensatory damages incurred by the plaintiff for expenses incurred, costs in excess of $5 million and lost profits in excess of $100 million." As previously stated, all the moving defendants except HNTB seek summary judgment against the plaintiff on its demand for lost profits. These motions seeking judgment on the plaintiff's demand for lost profits are denied.
More specifically, count I alleges a claim for tortious interference with contractual relations against the Willinger defendants. This same cause of action is asserted in count II against the defendants: United Environmental Redevelopment Company; Alfred Lenoci, Sr.; Michael Schinella; United Properties, Ltd; 815 Lafayette Centre, LLC; United Investments, LLC; Crescent Avenue Development, LLC; and Alfred Lenoci, Jr. A cause of action for tortious interference is also asserted in count III against Paul Pinto, Joseph Kasper, Jr., and the Kasper Group, Inc.
Count VIII asserts a claim for fraudulent misrepresentation against Ganim and Charles Willinger.
Count IX asserts a claim for violation of CUTPA against Ganim, Alfred Lenoci, Sr., Alfred Lenoci, Jr., Schinella, Pinto, Kasper, the Kasper Group, and HNTB.
Count X asserts a claim for statutory theft under General Statutes § 52-564 against Ganim, Alfred Lenoci, Sr., Alfred Lenoci, Jr., the Willinger defendants, Kasper, the Kasper Group, Pinto and Schinella.
Additionally, in the fraudulent misrepresentation count (count VIII), the plaintiff seeks punitive damages; in the count alleging violation of CUTPA (count IX), the plaintiff seeks punitive damages and attorney fees; and in the count alleging statutory theft (count X), the plaintiff seeks treble damages under General Statutes § 52-564.
The defendants do not contend that lost profits, as a general rule, cannot be recovered as an element of damages on the plaintiff's contract and tort claims. The Connecticut Supreme Court has held that "[l] ost profits may provide an appropriate measure of damages for the destruction of an unestablished enterprise, and further, that a flexible approach is best suited to ensuring that new businesses are compensated fully if they suffer damages as a result of breach of contract [or tort] injuries." Beverly Hills Concepts, Inc. v. Schatz Schatz, 247 Conn. 48, 67-68, 717 A.2d 724 (1998). As to the contract claim, the city argues that liability for lost profits was not reasonably contemplated by the parties when they executed the development agreement. All the defendants seeking judgment on this issue argue that the plaintiff's demand for lost profits fails as to the tort and CUTPA claims because it is, as a matter of law, too speculative and contingent.
In response, the plaintiff objects to the motions on procedural and substantive grounds. The plaintiff first argues that summary judgment cannot enter solely on one part of its claim for damages. The plaintiff's second argument is that its claim for lost profits is sufficiently contemplated under the contract and supported by the facts, including the testimony of its expert witness, and that the issues raised by the defendants involve factual disputes that cannot be resolved on motions for summary judgment. The court agrees with the plaintiff's first argument, and therefore, does not reach the second.
As previously stated, the plaintiff in its prayer for relief makes various demands for monetary compensation, and the demand for lost profits is only one of them. A disposition of the lost profits claim would leave the remaining claims for damages unresolved and unadjudicated. Consequently, an adjudication of the plaintiff's demand for lost profits will not entirely dispose of any cause of action asserted in the complaint. Although there is some conflict among the Superior Court judges on this issue, the majority rule, followed by this court, is that Connecticut procedure does not allow entry of summary judgment on one part or allegation of a cause of action when the ruling will not dispose of an entire claim, and therefore, will not allow entry of judgment on that claim. See generally Practice Book § 17-51.
Practice Book § 17-51 provides the following: "If it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted, on such terms as may be just; and the action may be severed and proceeded with as respects the remainder of the claim."
In Shelton Yacht Cabana Club, Inc. v. Voccola, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 01 0075380 (February 2, 2007, Stevens, J.), the court recently explained its view on this issue as follows: "First, summary judgment cannot be entered as to an entire count when the count contains multiple causes of action and all of them are not addressed as part of the judgment. Second, summary judgment is unavailable as to particular allegations in a count when such an adjudication does not dispose of an entire cause of action. Third, summary judgment may be entered as to a single cause of action within a count containing multiple claims when the allegations are sufficiently distinct and discrete so that this cause of action can be severed from the remaining claims. Thus, in this last situation, it must be practical to enter final judgment with respect to that part of the claim for which summary judgment is sought and sever it from the remainder of the claim." (Citations omitted; internal quotation marks omitted.) Id.; accord Economy Petroleum Corp. v. Paulauskas, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 00 0822116 S (Aug. 1, 2003, Sheldon, J.) [ 35 Conn. L. Rptr. 347] ("[i] t must also be practical to enter final judgment with respect to that part of the claim for which summary judgment is sought and sever it from the remainder of the claim"); Smith v. Hauer, Superior Court, judicial district of Fairfield, Docket No. 00 379046 S (Sept. 26, 2003, Levin, J.) (holding that "the Connecticut Practice Book, unlike the federal rules; see Fed.R.Civ.Proc. 56(d); does not provide for summary judgment on individual claims of damage"); Pelletier v. Sordoni/Skanska Co., Superior Court, judicial district of Waterbury, Docket No. X06 CV95 0155184 S (May 5, 2005, Alander, J.) ( 39 Conn. L. Rptr. 302) (Practice Book § 17-51 "authorizes the entry of summary judgment on part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim"); compare Electrical Contractors, Inc. v. City of Hartford, Docket Number CV 04 0831259 S, Superior Court, judicial district of Hartford at Hartford (March 17, 2006, Jane S. Scholl, J.) ( 40 Conn. L. Rptr. 878) ("Connecticut does not have a procedure for rendering judgment for a defendant on part of a count unless it disposes of all the issues in a count"); Cave v. Farm Family Mutual Insurance Co., Superior Court, judicial district of Waterbury, Docket No. CV 95 0125978 S (December 31, 1996, Vertefeuille, J.) ( 18 Conn. L. Rptr. 396) (holding that summary judgment may not be entered for only part of a count of a complaint.); but cf. Mazurek v. Great American Insurance Co., Inc., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X02 CV 01 0177433 S (Dec. 16, 2004, Schuman, J.) ( 38 Conn. L. Rptr. 402), aff'd in part and appeal dismissed in part on other grounds, 284 Conn. 16 (2007) (holding that summary judgment may enter as to some but not all specifications of wrongdoing asserted in a count); and Rosenberg v. Meriden Housing Authority, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 95 0377376 S (October 29, 1999, Licari, J.) (stating in footnote eight that "Superior Court cases that do allow the granting of summary judgment to eliminate some but not all of the allegations in a count of a complaint are more persuasive").
The defendants' reliance on Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 889 A.2d 785 (2006), is misplaced. In Leisure Resort, the plaintiff claimed that it was fraudulently induced to sell its partnership interest. The plaintiff's only damage claim was for "the difference between the price received by the plaintiff [for the partnership interest] and its actual value at the time of the sale." Id., 34. The trial court granted the defendant's motion for summary judgment on the ground that the plaintiff's claim for damages was too speculative as a matter of law to allow any recovery. The Supreme Court affirmed. In Leisure Resort, the plaintiff's only claim for damages was for the fair value of the property interest that was sold. By failing to provide sufficient proof of its single claim for damages, the plaintiff failed to satisfy an essential element of its cause of action, and as a consequence, judgment entered on the entire claim. As previously explained, in the present case, the plaintiff seeks various forms of damages. If this court were to enter judgment on the single issue of lost profits, that decision would not fully dispose of any cause of action or claim asserted in any count of the complaint. In short, the demand for lost profits is not sufficiently distinct and discrete so that a disposition of this issue can be effectively severed from all the remaining causes of actions.
As further clarification of the court's ruling, some other motion may be available to the defendants, such as a motion to preclude or a motion in limine, but the issues raised by them regarding the plaintiff's demand for lost profits cannot be addressed by way of summary judgment motions.
Therefore, the defendants' motions seeking partial summary judgment as to the plaintiff's demand for lost profits are denied.
III City of Bridgeport A
As previously stated, the complaint asserts four causes of action against the city: breach of contract, breach of implied covenant of good faith and fair dealing, negligence, and quantum meruit. In its motion, the city seeks summary judgment as to count VI alleging negligence and count VII alleging quantum meruit. For the following reasons, the city's motion for summary judgment is granted as to these two counts.
Count VI of the complaint asserts a negligence claim against the city pursuant to General Statutes § 52-557n. In this count, the plaintiff alleges that the city was negligent in one or more of the following ways:
General Statutes § 52-557n(a)(1) provides the following in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit . . . "
a) by failing to monitor the acquisitions, contract decisions, and compensation taken by the mayor of the City of Bridgeport;
b) by failing to monitor and enforce the limitations contained with the contracts of the defendants Willinger, and Willinger, Willinger and Bucci;
c) by failing to follow statutory, and regulatory requirements concerning the awarding and payment of city awarded contracts;
d) by permitting a person who had no city authority to impose conditions on city contracts, personnel decisions, the awarding of contracts, and other decisions relating to the plaintiff's development proposal;
CT Page 16844
e) by failing to inquire about, prohibit, or in any way seek to mitigate the conflicts or interests of agents, employees, outside contractors and elected officials of the City of Bridgeport;
f) by failing to prevent tortuous interference with the plaintiff's development by bribery, kickbacks, illegal conspiracies and payoffs, even though the city, acting through its agent, servants and employees, knew, or in the exercise or reasonable care should have known of the above described activities.
Complaint, p. 30.
The city argues that it is entitled to summary judgment on count VI because the plaintiff's claims are barred by General Statutes § 52-557n(a)(2), which provides governmental immunity for discretionary acts. The Supreme Court in Martel v. Metropolitan District Commission, 275 Conn. 38, 881 A.2d 194 (2005), addressed government immunity under this statute as follows:
General Statutes § 52-557n(a)(2) provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
[A] municipality itself was generally immune from liability for its tortious acts at common law . . . [Our Supreme Court has] also recognized, however, that governmental immunity may be abrogated by statute . . . General Statutes § 52-557n(a)(1) provides in relevant part: Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . [T] his language clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents . . .
Subdivision (2) of § 52-557n(a) lists two exceptions to the statutory abrogation of governmental immunity. The exception relevant to this . . . [case] provides: Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law . . .
(Citations omitted; internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 275 Conn. 47-48.
The rationale of the discretionary function exception to municipal liability for negligent acts of public officials has been explained recently by the Supreme Court in Doe v. Petersen, 279 Conn. 607, 903 A.2d 191 (2006).
Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. Discretionary act immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury. In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts . . .
(Citations omitted; internal quotation marks omitted.) Doe v. Petersen, supra, 279 Conn. 614-15.
"The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast [m] inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion . . . Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint." (Citations omitted; internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 275 Conn. 48-49; see also 2A E. McQuillin, The Law of Municipal Corporations (3rd Ed. Rev. 2006) § 10.52, p. 531 ("[o] fficial action . . . is ministerial when it is absolute, certain, and imperative, involving merely the execution of a set task, and when the law that imposes it prescribes and defines the time, manner, and occasion of the performance with such certainty that nothing remains for judgment or discretion.") The city claims that it is entitled to governmental immunity because all of the plaintiff's claims of negligence involve the exercise of discretion and none of them involves ministerial duties. The court agrees.
A fair summary of the plaintiff's negligence claims is that the city negligently failed to monitor, look into, or prevent Ganim or the other defendants from carrying out the alleged illegal plan to interfere with its rights under the development agreement. Particularly as to subparagraphs 88(a), (b), (e), and (f) of the complaint, the plaintiff alleges that the city failed to supervise, monitor or investigate the activities of the mayor or other individuals involved in the execution or performance of the agreement, and/or failed to implement or enforce limitations or requirements which would have prevented or mitigated the conspiracy that harmed the plaintiff. All these claims, broadly construed in the plaintiff's favor, depend on the exercise of judgment and therefore involve discretionary acts. None of the claims involve definitive duties "to be performed in a prescribed manner without the exercise of judgment or discretion." Martel v. Metropolitan District Commission, supra, 275 Conn. 48. Generalized allegations that a municipality failed to monitor or supervise a particular activity routinely have been rejected on the ground that they implicate discretionary, rather than ministerial, activities. Id.
In paragraph 88(d) of the complaint, the plaintiff alleges that the city was negligent by permitting a person without authority to impose conditions on "city contracts, personnel decisions, the awarding of contracts, and other decisions relating to the plaintiff's development proposal." In response to the motion for summary judgment, the plaintiff has not sufficiently supported this claim with any evidence on exactly who was given such authority and what specific ministerial rule or regulation was violated by the alleged conduct.
In paragraph 88(c), of the complaint, the plaintiff endeavors to support its negligence claim by alluding generally to statutory or regulatory "requirements governing the awarding and payment of city awarded contracts." In response to the motion for summary judgment, the specific regulation relied on by the plaintiff is the city's Code of Ethics § 2.38.030. This provision of the code of ethics seeks to prohibit conflicts of interest by forbidding city officials or employees from soliciting or accepting gifts when such conduct may imply that the action was done to influence the performance of officials duties. The plaintiff relies on the ethical code to argue that "[t] he City Council owed a ministerial duty to investigate and inquire in the misuse of city contracts . . . The city owed a ministerial duty to enforce the standards of conduct in the city's code of ethics and failed to do so. Despite overwhelming evidence of ethics violations and conflicts of interest, no one seemed to care and no one bothered to check." Plaintiff's November 17, 2006, Memorandum in Response to City of Bridgeport's Motion for Summary Judgment, pp. 14, 17. The plaintiff claims that there were instances when city officials took no action either to enforce the ethical code or to investigate ethical violations, and such action would have mitigated or prevented the conspiracy that allegedly harmed the plaintiff.
The Bridgeport City Code of Ethics § 2.38.30[B], relied on by the plaintiff, provides the following in relevant part: "No official or employee shall: 1) Solicit or accept any gift, directly or indirectly, whether in the form of money, loan, gratuity, favor, service, thing or promise, or in any other form, under circumstances in which it can reasonably be inferred that the gift is intended to influence him in the performance of his duties or employment in the public interest . . ."
Assuming arguendo that there were conflicts of interests and violations of the ethical code as the plaintiff contends, the plaintiff's argument still misses the point. This same error is found in the plaintiff's extensive arguments about how various city officials poorly performed their official duties or did not perform them at all. See Plaintiff's April 13, 2007, Memorandum in Response to City of Bridgeport's Motion for Summary Judgment, pp. 23-41. A city employee's violation of a municipal ethical code or dereliction of his or her official responsibilities does not in itself create a cause of action on which the plaintiff may assert a monetary claim. Moreover, contrary to the plaintiff's apparent contentions, even inaction or omission in regard to duties involving the discretionary exercise of judgment does not make such conduct ministerial. Particularly in regard to the ethical code, while this code proscribes certain conduct, the code does not delineate or establish any manner or mode of investigation or enforcement that may be characterized as ministerial. As previously stated, the general rule is that a public official's duty to investigate, monitor and supervise involves "[d] eterminations as to what is reasonable or proper under a particular set of circumstances [and these determinations] necessarily involve the exercise of judgment and are, therefore, discretionary in nature . . ." (Citation omitted.) Segreto v. Bristol, 71 Conn.App. 844, 857, 804 A.2d 928 (2002).
The plaintiff also refers to the competitive bidding procedures as a source of ministerial obligations applicable in this case, and argues that they were not followed when the city retained attorney Willinger and his law firm. A review of these procedures, however, indicates that competitive bidding through public advertising is not invariably required and may be waived if found by the common council or contracting officer to be "for the best interest of the city." Bridgeport Code § 2-276. Moreover, even when competitive bidding is utilized, the city retains the discretion to reject all bids. Bridgeport Code § 2-275. The city also notes that in regard to the city's retention of attorney Willinger, the city charter does not require outside counsel to be retained through competitive bidding.
There are circumstances under which liability may be imposed even for discretionary acts. None of these exceptions or circumstances have been pleaded by the plaintiff in avoidance of the city's special defense of governmental immunity as required by Practice Book § 10-57, and the plaintiff has not referred to or relied on any of them in response to the city's summary judgment motion.
The three exceptions or circumstances under which liability may attach even when the act is discretionary are: "first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence . . ." (Citations omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989); but cf. General Statutes § 52-557n(a)(2) (providing that a municipality shall not be liable for acts or omissions of any employee which constitute "criminal conduct, fraud, actual malice or wilful misconduct.").
In summary, no material disputed facts exist as to the city's defense of governmental immunity. As a matter of law, all of the plaintiff's negligence claims involve the exercise of discretionary, judgmental acts or responsibilities constituting exceptions to the statutory abrogation of governmental immunity under General Statute § 52-557n. Summary judgment enters for the city on count VI.
B
The city also moves for summary judgment on count VII of the complaint alleging quantum meruit. The city argues that this count fails as a matter of law because the plaintiff is simultaneously asserting claims for quantum meruit and breach of the development agreement. According to the city, the existence of the written agreement between the parties forecloses the plaintiff's quantum meruit claim. In response, the plaintiff argues that the rules of practice allow it to plead breach of contract and quantum meruit alternatively. The court agrees with the city. Based on the allegations of this complaint, the plaintiff has not pleaded these claims alternatively, but has pleaded them improperly.
The law is well established that quantum meruit, like unjust enrichment, is an equitable claim that is unavailable when an express contract exists between the parties:
Both unjust enrichment and quantum meruit are doctrines allowing damages for restitution, that is, the restoration to a party of money, services or goods of which he or she was deprived that benefitted another . . . Quantum meruit is usually a remedy based on implied contract and usually relates to the benefit of work, labor or services received by the party who was unjustly enriched, whereas unjust enrichment relates to a benefit of money or property . . . and applies when no remedy is available based on the contract . . . The lack of a remedy under a contract is a precondition to recovery based on unjust enrichment or quantum meruit.
(Citations omitted.) United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn.App. 506, 512-13, 802 A.2d 901 (2002).
The plaintiff correctly argues that although a plaintiff cannot recover on a theory of quantum meruit when its claims are governed by an express contract, a single complaint may assert claims for breach of contract and for quantum meruit alternatively. See generally, Rosick v. Equipment Maintenance Service, Inc., 33 Conn.App. 25, 632 A.2d 1134 (1993). The rules of practice allow alternative pleading, but to plead properly in this manner, the causes of action must be asserted fully and correctly in separate counts. In this regard, Practice Book § 10-25 states that a "plaintiff may claim alternative relief, based upon an alternative construction of the cause of action."
Further, Practice Book § 10-26 provides: "Where separate and distinct causes of action, as distinguished from separate and distinct claims for relief founded on the same cause of action or transaction, are joined, the statement of the second shall be prefaced by the words Second Count, and so on for the others; and the several paragraphs of each count shall be numbered separately beginning in each count with the number one.
In the present case, while the breach of contract and quantum meruit claims are asserted in separate counts, the count asserting quantum meruit (count VII) incorporates all the substantive allegations asserted in the contract count (count IV). Consequently, the quantum meruit count expressly asserts the existence of a contract between the plaintiff and the city. This court recently addressed the impropriety of such a pleading in William Raveis Real Estate v. Cendant Mobility Corp., Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 05 4002709 S (Dec. 6, 2005, Stevens, J.), as follows:
It has been held in several recent Superior Court cases that allegations of [an] express contract between the parties incorporated into a count stating a claim for unjust enrichment cause a violation of the rule that those alternative causes of action must be pleaded in separate counts." Burke v. The Boatworks, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 4001838 (July 26, 2005, Jennings, J.) (granting motion to strike unjust enrichment claim based upon plaintiff incorporating allegations of breach of express contract between plaintiff and defendant into claim) . . .
[T] he plaintiff clearly alleges the existence and breach of an express contract in the count seeking unjust enrichment, contrary to the rule that alternative causes of action must be pleaded in separate counts. In short, the plaintiff may plead unjust enrichment in the alternative, but this is not accomplished by incorporating into this count all the allegations of an express contract. Such a complaint does not involve alternative pleading, but involves legally inconsistent pleading.
Id.
The plaintiff fails to state a legally sufficient cause of action for quantum meruit exactly for these reasons. Rather than asserting its contract and quantum meruit claims alternatively, the plaintiff alleges in the quantum meruit count that: the plaintiff and the city entered into an agreement to develop Steel Point (Complaint, ¶ 82); that the city breached this agreement (Complaint, ¶ 83); and that the quantum meruit claim is expressly based on the city's representation that the plaintiff "would be compensated in accordance with a completed development agreement." (Complaint, ¶ 95). As held by this court in William Raveis Real Estate v. Cendant Mobility Corp., supra, "[s] uch a complaint does not involve alternative pleading, but involves legally inconsistent pleading." Id. This count of the complaint fails because it seeks quantum meruit relief while alleging and acknowledging the existence of an express contract covering the parties' transaction. As a matter of law, quantum meruit relief is unavailable under such circumstances. Rosick v. Equipment Maintenance Service, Inc., supra, 33 Conn.App. 25. The city's motion for summary judgment as to count VII alleging quantum meruit is granted.
In a sur-reply to the city's motion for summary judgment (filed December 1, 2006), the plaintiff also contends that the court previously denied a motion to strike the quantum meruit count on the same ground now asserted by the city in this motion for summary judgment. This contention is incorrect. The file reflects that the city did not press the motion to strike the quantum meruit count, and thus, the court's ruling on the motion to strike did not address the legal sufficiency of this count. See Bridgeport Harbour Place I, LLC v. Joseph P. Ganim, Superior Court, Complex Litigation Docket, judicial district of Waterbury, Docket Number X06 CV 04 0184523 S (Feb. 16, 2006, Alander, J.) [ 40 Conn. L. Rptr. 764] n. 1.
IV ALFRED LENOCI, JR.
The court next addresses the motion for summary judgment filed by the defendant Alfred Lenoci, Jr., who seeks judgment in his favor as to the following three counts asserted against him: tortious interference with contractual relationships (count II); violation of CUTPA (count IX); and statutory theft under General Statutes § 52-564 (count X). Lenoci's motion is denied as counts II and IX and is granted as to count X.
Lenoci argues that he is entitled to summary judgment as to the plaintiff's counts alleging tortious interference with contractual relationships and violation of CUTPA because he did not participate in any conspiracy causing the plaintiff to lose the right to develop Steel Point, and the plaintiff's contentions to the contrary are either unpersuasive or conjectural. The court agrees with the plaintiff that the plaintiff's claims and Lenoci's defenses as to these counts involve disputed issues of material fact precluding summary disposition.
In regard to count X, Lenoci argues that the plaintiff has not asserted a legally sufficient claim for statutory theft under General Statutes § 52-564 because the plaintiff does not allege that Lenoci appropriated or took possession of the plaintiff's rights or interests in the development agreement. The court agrees.
General Statutes § 52-564 provides in relevant part that "any person who steals any property . shall pay the owner treble damages." According to the language of this provision, treble damages are imposed on a person who steals property. In count X of the complaint, the plaintiff alleges that Lenoci and other defendants acted wrongly "in an effort" to steal contract rights and project funds from the plaintiffs. Complaint, ¶ 110. There is no allegation in the complaint that this effort was successful, or more particularly, there is no allegation that Lenoci actually stole or appropriated anything. As a matter of law, an effort or an attempt to steal property is not theft of the property.
"[S] tatutory theft requires that a defendant wrongfully take, obtain or hold the property of another . . ." (Citation omitted; internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 47, 761 A.2d 1268 (2000). "Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119 . . . Pursuant to § 53a-119, a person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." (Citations omitted; internal quotation marks omitted.) Suarez-Negrete v. Trotta, 47 Conn.App. 517, 521-22, 795 A.2d 215 (1998).
Reading the allegations of the complaint broadly in favor of the plaintiff, the complaint alleges that Lenoci and other defendants intentionally and wrongfully interfered with the plaintiff's interests in the development agreement, but it does not allege that Lenoci (or any other defendant) actually took, appropriated or received any such property interests from the plaintiff. The plaintiff, therefore, has failed to state a legally sufficient claim for statutory theft and Lenoci is entitled to judgment as to count X as a matter of law.
For the foregoing reasons, the defendant Alfred Lenoci, Jr.'s motion for summary judgment is denied as to counts II and IX of the second revised complaint alleging tortious interference with contractual relations and violation of CUTPA, and is granted as to count X alleging statutory theft. Because the defendants Joseph Ganim, Charles Willinger, Jr., and Willinger Bucci, P.C., have joined in this motion filed by Lenoci, summary judgment also enters in their favor and against the plaintiff on Count X of the revised complaint.
V United Environmental
The defendant United Environmental moves for summary judgment as to count II of the complaint, which is the only count directed to this defendant. This count asserts a claim for tortious interference with the plaintiff's contractual relationships with the city under the development agreement. United Environmental argues that it is entitled to summary judgment because neither the complaint nor the discovery in this action delineates any facts to support a claim that it committed any act interfering with the plaintiff's contract rights or otherwise causing harm to the plaintiff.
The complaint identifies United Environmental as a "Connecticut corporation engaged in the business of asbestos removal and remediation, with a principal place of business at 929 Kings Highway East, Fairfield, Connecticut. Complaint, ¶ 14. The complaint alleges (¶¶ 4, 5) that United Environmental is owned or controlled by Alfred Lenoci, Sr. and Alfred Lenoci, Jr. United also is referred to in the caption of count II. United Environmental is not specifically named anywhere else in the complaint. There is no allegation that United Environmental itself took any action adverse to the plaintiff's interests; there is no explicit allegation that United Environmental engaged in any conspiracy involving Steel Point or the plaintiff's interest in developing Steel Point.
The complaint does allege that the defendants Alfred Lenoci, Sr. and Alfred Lenoci, Jr. used their corporate positions with entities they controlled to enrich themselves by engaging in bribes, kickbacks and "various illegal schemes." Complaint, ¶ 67. According to the plaintiff, discovery suggests that United Environmental may have been used as a conduit to funnel illicit funds. However, the plaintiff has not alleged that any of the activities or schemes involving United Environmental had anything to do with the plaintiff.
In response to United Environmental's motion for summary judgment, the plaintiff concedes that it has no evidence that United Environmental's involvement with any aspect of the alleged conspiracy implicated the plaintiff or the plaintiff's activities. More specifically, the plaintiff admits that it "has no direct evidence that United Environmental attempted to thwart the Steel Point Project or otherwise harm the plaintiff . . ." See Plaintiff's Memorandum in Response to United Environmental's Motion for Summary Judgment, p. 2. The plaintiff argues curtly that United Environmental "is vicariously liable, pursuant to the broader conspiracy, for its participation in other attempts to grab city contracts by the same co-conspirators." Id.
Thus, the plaintiff seeks to overcome summary judgment by arguing that certain defendants controlling United Environmental used United Environmental to facilitate an illegal, corrupt conspiracy harming or involving other entities, and consequently, the plaintiff is entitled to maintain an action against United Environmental even though the plaintiff was not the specific object of the conspiracy. The plaintiff does not provide any authority to support this broad proposition.
The analysis of the plaintiff's argument is also complicated because although a conspiracy among certain of the defendants is alleged in count II (complaint, ¶¶ 69 (f), (g), (h), (i)), the complaint does not assert a specific count for civil conspiracy against any of the defendants, which is a permissible procedure under Connecticut practice. Talit v. Peterson, 44 Conn.Sup. 490, 497, 692 A.2d 1322 (1995); see generally, Macomber v. Travelers Property Casualty Corp., 277 Conn. 617, 894 A.2d 240 (2006).
Conspiracy need not be proven by direct evidence. Indeed, because if its nature, conspiracy "rarely can be proved otherwise than by circumstantial evidence." (Internal quotation marks omitted; citation omitted.) American Diamond Exchange v. Alpert, 101 Conn.App. 83, 100, 920 A.2d 357 (2007). Nevertheless, the plaintiff's complaint and the parties' submissions establish that United is entitled to summary judgment.
The elements of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object; (4) which act results in damage to the plaintiff. There is, however, no independent claim of civil conspiracy. Rather, the action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself. Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort.
(Citation omitted; emphasis in original; internal quotations marks omitted.) Macomber v. Travelers Property Casualty Corp., supra, 277 Conn. 635-36.
The conspiracy count against United Environmental fails because the complaint does not allege (and the submitted evidence, direct or circumstantial, does not show) either: 1) a conspiracy involving United Environmental to commit a tort directed to the plaintiff; or 2) an injury to the plaintiff caused by any such conspiracy. The complaint (¶ 67) alleges that entities controlled by the Lenocis (presumably including United Environmental) were used as part of a conspiracy to corrupt the "normal bidding and contractual processes of Bridgeport." However, a civil conspiracy, as compared to a criminal conspiracy, is of no legal consequence in the absence of conspiratorial acts committed in furtherance of the underlying tort that cause damages. See generally, Talit v. Peterson, supra, 44 Conn.Sup. 493-94 (discussing the differences between civil and criminal conspiracies). In other words, the damages awarded for civil conspiracy are not awarded for the conspiracy itself, but for the injuries caused to a plaintiff resulting from the conspiratorial acts committed in furtherance of the underlying tort. See Macomber v. Travelers Property Casualty Corp., supra, 277 Conn. 636.
According to count II of the complaint, the underlying tort injuring the plaintiff is tortious interference with the plaintiff's contractual relations, not some general conspiracy to corrupt the city's bidding and contracting processes. Obviously, the plaintiff cannot base a private cause of action to recover money damages on the city's corruption scandal. In short, despite the plaintiff's very artful pleading, the complaint nowhere alleges United Environmental's involvement in a conspiracy to commit tortious interference with the plaintiff's contractual relations.
A. similar situation was presented in Bendowski v. Quinnipiac College, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 95-0248346 (April 9, 1996; Silbert, J.) ( 16 Conn. L. Rptr. 470). In Bendowski, the plaintiff claimed that the defendant and a third party entered into a conspiracy resulting in personal injuries to the plaintiff. The count of the complaint alleging conspiracy was stricken by the court because the alleged conspiracy was formed to assault the plaintiff's roommate, not the plaintiff:
[The conspiracy count] alleges only that [the defendant and the third party] conspired to confront and/or attack [the plaintiff's roommate.] It provides no foundation for a claim of conspiracy to injure the named plaintiff, who has given the court no authority to support the proposition that factual allegations tending to show a civil conspiracy against one individual can, without more, be turned into a cause of action alleging a conspiracy against another individual . . .
The fact that [the defendant and the third party] may have conspired against [the roommate] does not give the plaintiff a cause of action based on a conspiracy that was not directed against him.
Id.; accord Dumais v. Hartford Roman Catholic Diocese, Superior Court, Complex Litigation Docket at Tolland, Docket No. CV 01 0077631 (July 31, 2002; Sferrazza, J.) ( 32 Conn. L. Rptr. 693) (in a conspiracy claim "it is inadequate to aver that a group of persons agreed to perform certain other acts but not the injurious conduct which harmed the plaintiff'); Noll v. Hartford Roman Catholic, Superior Court, Complex Litigation Docket at Middletown, Docket No. 02 4000582 (July 9, 2007; Beach, J.) (same).
Thus, United Environmental's motion for summary judgment as to count II is granted.
VI Willinger Defendants
The Willinger defendants move for summary judgment on all three counts asserted against them: count I alleging tortious interference with contractual relations; count VIII alleging fraudulent misrepresentation; and count X alleging statutory theft under General Statutes § 52-564.
In count I of the complaint, the plaintiff alleges that the Willinger defendants knowingly participated in a conspiracy with Ganim, both to further their relationship with Ganim and to assist him in steering the Steel Point development to the defendants Alfred Lenoci, Sr. and Alfred Lenoci, Jr., who had agreed to make illegal payments to Ganim. The Willinger defendants argue that they cannot be held liable for tortious interference because there is no evidence that they were acting outside the scope of their authority as the attorney for the city, and an agent cannot conspire with its principal. See Selby v. Pelletier, 1 Conn.App. 320, 327 n. 4, 472 A.2d 1285 (1984). The plaintiff counters that a genuine issue of material fact exists as to whether these defendants knowingly participated in the alleged conspiracy for their own benefit and self-interest, and as a consequence, acted outside the scope of their authority and intentionally made false statements. The court agrees with the plaintiff.
The general rule is that an agent may not be charged with having interfered with a contract of the agent's principal. Selby v. Pelletier, 1 Conn.App. 320, 327 n. 4, 472 A.2d 1285 (1984). An agent, however, may ". . . be held liable for . . . interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain . . ." (Citations omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 168-69, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998). The plaintiff has provided sufficient circumstantial or inferential evidence to support the Willinger defendants' knowing participation in the alleged conspiracy to withstand a motion for summary judgment. This evidence may not be direct, but the law is established that "summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions . . ." (Citations omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 376, 280 A.2d 596 (1969). "It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised . . ." (Citations omitted.) Id. Summary judgment should not foreclose credibility challenges or the proof of facts by circumstantial evidence. See Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). The motion for summary judgment as to count I is denied.
In Count VIII, the plaintiff alleges that the Willinger defendants made fraudulent misrepresentations to further the conspiracy. See generally, Cadle Co. v. Ginsberg, 70 Conn.App. 748, 769, 802 A.2d 137, cert. denied, 262 Conn. 905, 810 A.2d 271 (2002) (the elements of fraudulent misrepresentation are a false representation made as to a statement of fact, which was untrue and known by the defendant to be untrue, made to induce the plaintiff to act, and on the basis of which the plaintiff did act, to its detriment). The Willinger defendants argue that they are entitled to summary judgment because there is no evidence that they knew of the falsity of any statements at the time they were made. The plaintiff's disagree, citing references to prior conduct by the Willingers from which a reasonable juror could infer knowledge. Again, there is a genuine issue of material fact as to whether the Willinger defendants knew of Ganim's conspiracy and knowingly participated in it. The motion for summary judgment on count VIII is denied.
Lastly, the Willinger defendants have joined the motion for summary judgment filed by Alfred Lenoci, Jr., as to count X alleging statutory theft under General Statutes § 52-564. As previously discussed, the Willinger defendants' motion to strike count X is granted because the plaintiff's complaint alleges and its evidence supports no more than an attempted theft, rather than an actual theft necessary for a cause of action under General Statutes § 52-564.
Thus, the Willinger defendants' motion for summary judgment is denied as to counts I and VIII, and granted as to count X.
VII HTNB
HNTB moves for summary judgment on count IX of the complaint. This count alleges a violation CUTPA by HNTB and others, and is the only claim asserted against HNTB. This motion is denied.
Count IX alleges, among other things, that HNTB violated CUTPA by paying and promising to pay bribes through Leonard J. Grimaldi and Harbor Communications for monetary gain and to the plaintiff's detriment. There is no dispute that HNTB hired Harbor Communications, a consulting firm owned and operated by Grimaldi. There is also no dispute that Grimaldi received consulting fees from HNTB as a result of this relationship. There is a disputed issue of material fact as to whether Grimaldi, acting as HNTB's consultant and agent, used funds received from HNTB to make the bribes as alleged in count IX, with HNTB's knowledge and consent. On the basis of the parties' positions and submissions, HNTB's knowledge and intent are disputed, material, factual issues precluding summary judgment. See Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 111. "The function of the trial court, in summary judgment proceedings, is not to decide issues of material fact, but rather to determine whether any such issues exist." Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982). For that reason, HNTB's motion for summary judgment must be denied.
The last motion for summary judgment was filed by the defendants Alfred Lenoci, Sr., Michael Schinella, United Properties, Ltd, 815 Lafayette Centre, LLC, United Investments, LLC, and Crescent Avenue Development, LLC. This motion only seeks partial summary judgment against parts of the plaintiff's demand for damages. This issue was addressed in Section II of this memorandum and these defendants' motion for summary judgment is denied for the reasons therein expressed.
CONCLUSION
The court grants the motion filed by the city as to counts VI and VII of the complaint alleging negligence and quantum meruit. The court grants the motions filed by Alfred Lenoci, Jr., Joseph Ganim, Charles Willinger, Jr., and Willinger, Willinger Bucci, P.C., as to count II of the complaint alleging statutory theft under General Statutes § 52-564. The court grants the motion filed by United Environmental Remediation as to count II of the complaint alleging tortious interference with contractual relationships. The defendants' motions for summary judgment are denied in all other respects.
So ordered this 5th day of October 2007.
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