Opinion
No. X10 UWY CV 07 4018804
June 1, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT (#111)
Introduction
The plaintiffs, forty-eight former members of the Danbury police department, bring this action against the defendant, city of Danbury ("City"), by complaint dated July 31, 2007. Presently before the court is the defendant's motion for partial summary judgment as to eight of the plaintiffs. The plaintiffs allege the following facts: The plaintiffs are former members of the Danbury police department who retired in good standing under the provisions of the Danbury City Charter. Complaint, ¶ 1. The City's common council created a police pension fund for the eligible retirees of Danbury's police department by ordinance, which is found in Chapter 14, Article III, §§ 13-18 — 14-60 of the Code of Ordinances of the City of Danbury. Complaint, ¶ 6. There are three separate pension funds for the members and retired members of the Danbury police department known as "The Pre-1967 Police Pension Fund of Danbury," "The 1967 Police Pension Fund of Danbury" and "The 1983 Police Pension Fund of Danbury," which funds are to "consist of such sums of money as shall be appropriated or designated to such funds by the city, and such sums of money as are assessed against the salaries of the members of the police department." Complaint, ¶ 7 quoting § 14-49 of the Danbury Code of Ordinances. The plaintiffs in this action are covered by either the Pre-1967 Pension Fund or the 1967 Pension Fund. Complaint, ¶ 11. At the time of their retirements from the Danbury police department, the plaintiffs had obtained the highest grade level of their respective ranks and their pensions were based on the "top pay" of their respective grade levels and rank. Complaint, ¶¶ 13, 14. Section 14-52 of the Danbury Code of Ordinances provides in part: "(c) With respect to The Pre-1967 Police Pension Fund of Danbury and to The 1967 Police Pension Fund of Danbury and to the pension benefits of their respective members, the term `pay,' as used in any applicable section of this article, shall be defined as the highest salary or compensation received by any regular member of either fund during the years in which such member served the city; and such pension when determined by the appropriate board of directors shall not thereafter be reduced, but shall be increased to correspond to any increase in salary received by members of the same grade and rank of such member while in active service of the department." Complaint, ¶ 9. At the time of the plaintiffs' retirement, there were five pay grades and each of the plaintiffs retired at the highest pay grade. Complaint, ¶ 21. Since the time of their retirements, the City has established two additional pay grades for the current members of the Danbury police department. Complaint, ¶ 20. The first increase in the pay grade levels occurred in 1985, and the second increase occurred in 2007. Affidavit of Gregory DeMunnik, ¶¶ 18-19. Subsequently, the defendant no longer paid the plaintiffs based on their retirements at the highest pay grade. Complaint, ¶ 22.
The plaintiffs allege that the defendant has circumvented the provisions of the Danbury City Charter and the Code of Ordinances which requires it to increase the pension paid to plaintiffs "to correspond to any increase in salary received by members of the same grade and rank of such member while in active service of the department" by adding the two additional pay grades to the salary scale. Complaint, ¶¶ 16, 17. By establishing two additional pay grades at the top of the pay scale, the plaintiffs allege the defendant has effectively removed the plaintiffs from the highest pay grade levels, where they were placed at the date of their retirement, to a lower level grade, effectively diluting the pension benefits it pays to the plaintiffs. Complaint, ¶¶ 18, 25. As a result, the plaintiffs allege they are not being paid a pension based on their retirement at the highest pay grade, which is in violation of the pension provisions of the Danbury Charter and the Code of Ordinances. Complaint, ¶ 26.
On March 11, 2005 the defendant filed its answer to the complaint asserting five affirmative defenses. In the affirmative defenses the defendant alleges that: (1) the plaintiffs' action is barred by the statute of limitations; (2) plaintiffs who retired prior to the labor contract change in 1985 have waived their right to pursue claims as they knew or should have known that additional steps were added to the contract; (3) plaintiffs who retired prior to the labor contract change in 1985 are estopped from pursuing claims as they knew or should have known of the changes yet took no action until 2007; (4) plaintiffs who retired prior to the labor contract change in 1985 are barred under the doctrine of laches from pursuing their claims; and (5) plaintiffs who retired prior to the labor contract change in July 2007 waived any right to pursue claims for pension benefits based on steps they had never been on during their employment. On February 4, 2008 the plaintiffs replied denying the special defenses.
On April 14, 2008 the defendant filed a motion for partial summary judgment as to eight of the named plaintiffs. The defendant argues that, as to these eight plaintiffs, their claims are barred by the statute of limitations and there is no basis for tolling the statute of limitations. On June 11, 2008 the plaintiffs filed an opposition to the defendant's motion for partial summary judgment. The plaintiffs argue that partial summary judgment is not appropriate because they have properly plead a continuing course of conduct and the City's continuing course of conduct effectively tolls the statute of limitations. Thereafter on July 3, 2008 the defendant filed a reply to the plaintiffs' opposition to partial summary judgment. Oral argument on the motion was heard by the court on March 4, 2009.
Discussion
"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." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399 (2005). "The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Martel v. Metropolitan District Commission, 275 Conn. 38, 46 (2005). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806 (1996).
The parties are in agreement that this suit is essentially a breach of contract action. Furthermore, the plaintiffs have not challenged the authority of the City to enter into the labor agreement and administer the provisions of the agreement. "It has been well established that a city's charter is the fountainhead of municipal powers . . . The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised . . . Agents of a city . . . have no source of authority beyond the charter . . . In construing a city charter, the rules of statutory construction generally apply . . . The officer, body or board duly authorized must act on behalf of the municipality, otherwise a valid contract cannot be created. Generally the power to make contracts on behalf of the municipality rests in the council or governing body . . . Generally, no officer or board, other than the common council, has power to bind the [municipality] by contract, unless duly empowered by statute, the charter, or authority conferred by the common council, where the latter may so delegate its powers . . ." (Internal quotation marks and citations omitted). Fennel v. City of Hartford, 238 Conn. 809, 813 (1996). In addition, General Statute § 7-450(a) provides in part: "[a]ny municipality or subdivision thereof may, by ordinance . . . establish pension, retirement, or other postemployment health and life benefit systems for its officers and employees and their beneficiaries, or amend any special act concerning its pension, retirement, or other postemployment health and life benefit systems, toward the maintenance in sound condition of a pension, retirement or other postemployment health and life benefit fund or funds, provided the rights or benefits granted to any individual under any municipal pension or retirement system shall not be diminished or eliminated."
As an initial matter, the defendant argues that the plaintiffs should not be allowed to rely on the continuing course of conduct doctrine to toll the statute of limitations because they failed to affirmatively plead it in avoidance of the defendant's statute of limitations defense. Pursuant to Practice Book § 10-57, "[m]atter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply . . ." The plaintiffs argue that their original complaint sufficiently demonstrates that the defendant's actions were part of a continuing course of conduct to deprive the plaintiffs of their pension rights. The court agrees.
A plain reading of the language of the complaint demonstrates the plaintiffs' contention that the defendant has continually violated their pension rights since 1985 to the present. Specifically, paragraph 15 of the complaint states "[s]ince the time of their retirements from the Danbury Police Department, the defendant has taken certain actions to circumvent the provisions of the City Charter which guarantee to the plaintiffs increases in their pension . . ." Paragraph 20 adds, "[t]he defendant has established two additional pay grades, going from five to seven for the current members of the Danbury Police Department," and paragraph 24, "[t]he current pay grade seven corresponds to the pay grade five under which the plaintiffs retired." Furthermore, paragraph 22 states, "[a]fter the defendant established two additional pay grades, the defendant no longer paid the plaintiffs a pension based on their retirements at the highest pay grade in the Danbury Police Department." "The pay grade five on which the defendant is currently computing the plaintiffs' pensions is not the same grade five under which the plaintiffs retired," and "[t]he current pay grade seven corresponds to the pay grade five under which the plaintiffs retired." Complaint, ¶¶ 23, 24. Thus the plaintiffs are alleging a continuing violation rather than one isolated event. The plaintiffs are not only asserting two incidents to demonstrate a continuing violation: (1) the addition of step six in 1985, and (2) the addition of step seven in 2007, but a continuation of the City's dilution of the plaintiffs' pensions. In addition, the City admits that since 1985 the plaintiffs have never received a pension calculated at a higher step. As a result, for purposes of the pleading requirements of Practice Book § 10-57, the plaintiffs have effectively pleaded a continuing course of conduct in avoidance of the defendant's affirmative statute of limitations defense.
As to the merits of its motion for partial summary judgment, the court must determine whether the City has met its burden of showing the absence of any genuine issue as to all material facts and that it is entitled to partial summary judgment due to the running of the statute of limitations. "A statute of limitation or of repose is designed to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise." (Citations omitted.) Ecker v. Town of West Hartford, 205 Conn. 219, 240 (1987). A cause of action for breach of contract is subject to the six-year statute of limitations of General Statutes § 52-576(a), which provides, in pertinent part, "[n]o action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . ." "In an action for breach of contract . . . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted." Kennedy v. Johns-Manville Sales Corporation, 135 Conn. 176, 180 (1948). The Supreme Court has "also noted that while `the application of [this] rule may result in occasional hardship,' it is well established that ignorance of the fact that damage has been done does not prevent the running of the statute, except where there is something tantamount to a fraudulent concealment of a cause of action." (Citation omitted.) Beckenstein v. Potter Carrier, Inc., 191 Conn. 150, 156 (1983).
The plaintiffs' cause of action for breach of contract is premised on allegations that the City has effectively diminished their pension payments by establishing two additional pay grade levels and not adjusting their pensions based on the allegedly equivalent higher grade. By establishing the additional pay grade levels, the plaintiffs allege they have been receiving pension payments calculated on a lower step than what they are entitled to under the labor contract provisions. From the date of their respective retirements, the plaintiffs' pensions have been calculated on pay level five. As a result, the plaintiffs argue that they were first injured in 1985 when the City added step six. The plaintiffs allege they were further injured in 2007 by the addition of step seven. Essentially, the plaintiffs have been continually injured when their pensions are recalculated based on increases in pay for each step. As the defendant's payroll supervisor admits in her affidavit, "[e]ach year when there is a contractual wage adjustment for active police officers, retirees under the pre-1967 and 1967 City Pension plans who retired under the same grade and rank also receive an increase to their pensions. In particular, retirees under the Pre-1967 and 1967 City Pension plans, whose last position was at Step 5, have received increases to their pension payments based on the increases active officers at Step 5 have received." Affidavit of Andrea Gray, ¶ 6. "[W]hen there is a wage adjustment for active police officers, retirees who retired under the same grade and rank as the current active officers, including the Plaintiffs, also receive an increase." Id.
The facts here are therefore in dispute as to whether there was a continuing course of conduct on the part of the City based on the recalculation of the plaintiffs' pensions each year. "[A] statute of limitations may be tolled under the . . . continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date." (Footnote, internal quotation marks and citations omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 203-04 (2000). When the wrong sued upon consists of a continuing course of conduct, the statute of limitations does not begin to run until the course of conduct is completed. Id., 207, n. 12. "The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied . . . For example, the doctrine is generally applicable under circumstances where it may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury or where the negligence consists of a series of acts or omissions and it is appropriate to allow the course of action to terminate before allowing the repose section of the statute of limitations to run." (Internal quotation marks and citations omitted.) Sanborn v. Greenwald, 39 Conn.App. 289, 295-96 (1995). Furthermore, "in order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where we have upheld a finding that a duty continued to exist after the cessation of the act or ommssion relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act." (Footnote, internal quotation marks and citations omitted.) Sherwood v. Danbury Hospital, supra, 252 Conn. 203.
Where there is a "special relationship" between the parties, lawsuits may be premature because specific actions within the relationship may be difficult to identify and, if the relationship continues, there may be opportunities to remedy the wrong. Sanborn v. Greenwald, supra, 39 Conn.App. 295-96. If, on the other hand, a specific act is completed and any warning would not be effective because the damage, if any, is done, then the statute is not tolled and the time period begins with the original claimed malfeasance. Id., 297. Furthermore, the application of the continuing course of conduct doctrine is "conspicuously fact-bound." Blanchette v. Barrett, 229 Conn. 256, 276 (1994), overruled on other grounds, 282 Conn. 745 (2007).
Against this background, the court must determine whether the City owed a continuing duty to the plaintiffs evidenced in part by a "special relationship" between them, or find some later wrongful conduct of the defendant related to the initial wrongful act. What is meant by the principle of a "special relationship" is not clear. See Rivera v. Fairbank Management Properties, Inc., 45 Conn.Sup. 154, 159 n. 1 (1997) [ 20 Conn. L. Rptr. 338]. At least one Superior Court case has analyzed the question of the existence of a "special relationship" for purposes of the continuing course of conduct doctrine in terms of whether a fiduciary or confidential relationship existed between the parties. In Deusen v. Dratch, Superior Court, judicial district of Litchfield, Docket No. CV068758 (May 7, 1996), (Pickett, J.), the court stated: "A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him." Id., quoting Dunham v. Dunham, 204 Conn. 303, 322 (1987).
In the present case, viewing the evidence in the light most favorable to the plaintiffs, the court finds that issues of fact exist as to whether the defendant, having continuous control over the administration of the pension plan and calculation of the payments, owes a duty to the plaintiffs. As the payroll supervisor admits in her affidavit, her duties include "verifying employment data, including rank, step and salary information necessary to calculate pensions for general employees, fire, and police" and "supervising payroll records for City employees and retirees, supervising day-to-day activities required to issue the City's payroll, reviewing provisions of all collective bargaining agreements and ensuring that payroll payments are in compliance with contractual obligations . . ." Affidavit of Andrea Gray, ¶ 2. Admittedly, the City had continuous control over the calculation of the plaintiffs' pension benefits since the time of their retirements. Thus, whether the City is in a "special relationship" with the plaintiffs due to its power and control over the pension assets and the calculation of payments to the plaintiffs is a question of disputed fact.
In Sanborn v. Greenwald, supra, 39 Conn.App. 289, the plaintiff former client filed a legal malpractice action against her attorney after the statute of limitations expired alleging a continuing course of conduct on the part of the attorney for negligently failing to warn and advise her of the legal consequences of a marriage dissolution judgment modification. The court found that after the modification was drafted the attorney did not engage in any affirmative conduct regarding the representation and had no fiduciary or contractual relationship with the plaintiff. Id., 297. The court reasoned that in the absence of any such facts the statute of limitations would not be tolled. Id.; see also Fichera v. Mine Hill Corp., 207 Conn. 204 (1988). The present case is distinguishable from Sanborn because the parties do have a contractual relationship. In addition, although it is unclear to what extent the City has a contractual duty to the plaintiffs, the plaintiffs rely on the City to properly calculate their pension payments each year and the City has undertaken the obligation to do so. Accordingly, whether the terms of the contract and the intent of the parties was structured in such a way that constitutes a "special relationship" that gives rise to a continuing duty on the part of the City is a genuine issue of material fact. In the present case, the evidence before the court is insufficient to determine the scope and nature of the City's duty to the plaintiffs. "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518 (2001). Here, the scope and nature of the City's duty to the plaintiffs is based on the intent of the parties as evidenced by the terms and provisions of the labor agreement. "The construction of a contract is usually a question of fact because the interpretation of its language is a search for the intent of the parties, making contractual intent a classic question of fact." Foley v. Huntington Company, 42 Conn.App. 712, 730 (1996).
In addition, although the payroll supervisor states in her affidavit that each year, when there is a contractual wage adjustment for active police officers, retirees under the Pre-1967 and 1967 Pension plans receive an increase in their pension check, and therefore are aware and have notice of any salary increases of current active officers in the same grade and rank, there is no claim that they had any specific notice, other than as members of the general public, of the approval by the City of the collective bargaining agreements which added the two steps. Affidavit of Andrea Gray, ¶¶ 5, 9.
As a result, the claims raised in the motion for partial summary judgment present genuine issues of material fact. The defendant has not met its burden of providing sufficient evidence to demonstrate that the statute of limitations has not been tolled due to a continuing course of conduct by the City. Being that the application of the continuing course of conduct doctrine is "conspicuously fact-bound," partial summary judgment is not appropriate. See Blanchette v. Barrett, supra, 229 Conn. 276.
Conclusion
The defendant's motion for partial summary judgment is denied.