Opinion
No. X07-CV04-4001923-S
January 17, 2006
MEMORANDUM OF DECISION
The defendant, the Office of Policy and Management, moved to strike the second and third counts of the revised complaint of the plaintiff Capital Properties Associates, L.P. The revised complaint contains three counts which allege breach of contract, breach of the covenant of good faith and fair dealing, and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), respectively. The plaintiff seeks compensatory and punitive damages and attorneys fees.
At oral argument on the motion to strike, the court, sua sponte, raised the question of a lack of subject matter jurisdiction based on sovereign immunity. Plaintiff's counsel conceded that the plaintiff never sought permission to sue the OPM from the Claims Commissioner. The parties have submitted briefs on this issue, and this memorandum addresses the question of sovereign immunity.
Our statutes require any person with a monetary claim against a state agency to file such a claim with the state's Claims Commissioner, unless some exception applies, Martinez v. Department of Public Safety, 263 Conn. 74, 84 (2003). General Statutes § 4-142 provides that the Claims Commissioner shall hear and determine all claims against the state with five exceptions. The only exception which colorably applies to the plaintiff's lawsuit against the OPM is one where suit is otherwise "authorized by law," § 4-142(2).
The OPM is indisputably a state agency, General Statutes Title 4, Ch. 50. Therefore, in the absence of a legislative waiver of sovereign immunity, the court lacks subject matter jurisdiction to render a judgment of monetary damages against the OPM. CT Page 1060 Kroszer v. New Haven, 212 Conn. 415, 420 (1989). Any statutory authority to sue a state agency must be express "or by force of a necessary implication." Owner-Operators Independent Drivers Association of America v. State, 209 Conn. 678, 685 (1989). Because statutory waivers of the right not to be sued are in derogation of the common law, such legislation "must be narrowly construed." Id. The scope of the waiver of sovereign immunity is strictly confined "to the extent the statute provides." Id.
The plaintiff contends that General Statutes § 4-61 authorizes it to sue the OPM without first obtaining permission to do so from the Claims Commissioner. Section 4-61(a) states that any firm "which has entered into a contract with [a state agency] for the design, construction, management, repair or alteration of any highway, bridge, building or other public works of the state may, in the event of any disputed claims under such contract . . . bring an action against the state to the superior court . . . provided notice of each such claim under such contract and the factual bases for each such claim shall have been given in writing to the agency head of the department administering the contract . . ."
Section 4-61(a) also requires that any action sanctioned by the subsection "shall be tried to the court without a jury."
I
Breach of Contract Counts
The first count alleges that the OPM breached a contract between OPM and the plaintiff; and the second count alleges a breach of the implied covenant of good faith and fair dealing which accompanies every contract. A breach of this implied covenant is a species of breach of contract. Collins v. Anthem Health Plans, 275 Conn. 309, 334 (2005). Therefore, both the first and second counts are breach of contract claims.
In these counts, the plaintiff asserts that the OPM and the plaintiff entered into an agreement wherein the plaintiff was to develop a residential and retail district, known as Adriaen's Landing, on property owned or to be acquired by the state in Hartford. The OPM has not argued that this agreement falls outside the public works contracts covered by the waiver of sovereign immunity created by § 4-61. Instead, the OPM contends that the plaintiff failed to give it adequate notice under the statute because the letter of notice and the complaint itself omit reference to § 4-61 as a jurisdictional basis. The court rejects this contention.
Subsection 4-61(a) compels one who wishes to take advantage of its waiver of immunity to give notice that the party is making specific contract dispute claims against the state and the factual bases for these claims. The court's examination of the written notice, dated November 1, 2004, from the plaintiff to the OPM discloses that the plaintiff clearly satisfied the notice requirements of § 4-61. The statute contains no demand that § 4-61 be cited expressly. Consequently, the absence of specific reference to § 4-61 in the written notice, and the complaint which followed, fails to deprive this court of the jurisdiction to hear and decide the breach of contract claims set forth in the first and second counts.
II
CUTPA Count
Our Supreme Court has construed the dimensions of the legislative waiver of sovereign immunity conferred by § 4-61 to be very small. A plaintiff seeking to utilize § 4-61 to sue a state agency must prove "that there is a precise fit between the narrowly drawn reach of [§ 4-61], and the contractual language upon which the plaintiff depends." Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 356 (1979). In that case, a New York engineering firm contracted with the state to produce a feasibility study and report regarding the possible relocation of certain state highways. The engineering firm attempted to litigate contractual disputes without having sought permission from the Claims Commissioner and in reliance on § 4-61. The Court found that the trial court lacked subject matter jurisdiction to resolve the matter because the goal of the contract "was to provide sufficient data for the state's decision-makers to determine the next course of action" regarding highway reconfigurement. Id., 355. The contract was not one to design the highway actually constructed, and, therefore, the agreement in question was outside the ambit of § 4-6 1. Id. 356-57.
In FDIC v. Peabody, W.E, Inc., 239 Conn. 93 (1996), our Supreme Court held that a general contractor, under a contract which did fall within the reach of § 4-61, was barred by sovereign immunity from filing a third-party complaint against the state in an action commenced by a subcontractor against the general contractor. Id., 96. The trial court had no subject matter jurisdiction over the third-party complaint because of failure to allege a disputed claim with respect to the state rather than the subcontractor. Id., 100.
A recent decision in this area is 184 Windsor Avenue, LLC v. State, 274 Conn. 302 (2005). In that case, the Supreme Court ruled that the immunity waiver of § 4-61 failed to extend to lease agreements where state agencies were tenants in a building owned by the plaintiffs. The Court stated that it "cannot construe § 4-61 beyond its express public works exceptions because to do so would render them superfluous, as well as violate the maxim that the legislature's inclusion solely of public works contracts necessarily implies the exclusion of other contracts." Id., 312.
Perhaps, the most forceful remarks by our Supreme Court concerning the very limited nature of the waiver of sovereign immunity in § 4-61 occurs in Department of Public Works v. ECAP Construction Co., 250 Conn. 553 (1999). The State and the defendant had entered into a construction contract to perform concrete work at the University of Connecticut School of Law in Hartford. Id., 555. Clearly, a breach of contract claim under this contract would trigger the waiver of immunity from suit provision of § 4-61. However, the contractor contended that the state had settled the contract dispute claims, and the contractor attempted to compel arbitration to enforce the settlement. The Supreme Court concluded that § 4-61 does not waive immunity to enforce settlement agreements even if the purported settlement resolves a public works contract dispute. Id., 557-58. The Court stated that the "legislature's use of the word `under,' as opposed to a broader term such as `related to,' `connected with,' or `derived from,' indicates an intent to authorize only those disputed claims against the state that fall directly under the contract itself." Id. 559. (Emphasis added.)
This court rules that the holding of Department of Public Works v. ECAP Construction Co., supra, compels the conclusion that § 4-61 only waives sovereign immunity for breach of contract claims under a public works contract and is inapplicable to any other cause of action which might be related to or derived from the contract, such as the CUTPA claim which the plaintiff seeks to adjudicate in the present case. Therefore, § 4-61 does not confer subject matter jurisdiction upon this court with respect to the third count.
III
Nonstatutory Waiver of Sovereign Immunity
The plaintiff also urges this court to find subject matter jurisdiction based on a purported waiver of immunity because the state has instituted its own lawsuit dealing with matters arising from the agreement in question. The plaintiff cites as authority for this proposition a trial court decision which found that the state waived immunity with respect to a counterclaim filed in a case which the state initiated. University of Connecticut v. Wolf, Superior Court, New Haven, J.D., d.n. CV 03-48 2499 (October 26, 2004), Zoarski, J.T.R. ( 38 Conn. L. Rptr. 148).
In that case, the court disallowed the state from asserting a lack of subject matter jurisdiction because the state invoked the court's jurisdiction by commencing the lawsuit. The present litigation is distinguishable from University of Connecticut v. Wolf, supra, precisely because the OPM never filed this case and never invoked the jurisdiction of the court to decide this complaint. The fact that the OPM may have initiated some other litigation is immaterial to the issue of whether the court has subject matter jurisdiction in a case which the OPM did not begin.
For these reasons, the court dismisses the CUTPA count for lack of subject matter jurisdiction based on sovereign immunity. A trial to the court may be had on the breach of contract counts.