Opinion
KNLCV196041084S
01-17-2020
Town of Sprague v. Robert Gentes
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Murphy, Shari A., J.
MEMORANDUM OF DECISION
Murphy, J.
In response to the defendant, Robert Gentes’ request for articulation, the following memorandum is submitted.
"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a [pleading] ... all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Gazo v. Stamford, 255 Conn. 245, 260, 755 A.2d 505 (2001). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]." Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A ‘speaking’ motion to strike (one imparting facts outside the pleadings) will not be granted." Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995).
The defendant moves to strike count one on the grounds that the allegations demonstrate that the plaintiff, the town of Sprague (Town), was not a party to the contract and therefore, lacks standing to claim a breach of contract. However, the allegations as to count one clearly state that the Town engaged the defendant, as an independent contractor for the position of Interim Contracted Business Manager and further, such allegations also assert that the Town entered into a written contract with the defendant. Further, the allegations set forth duties owed by the defendant by way of such agreements, breach of said duties and damages. As such, the allegations of within the four corners of the complaint sufficiently set forth a breach of contract action.
The defendant next moves to strike count two on the grounds that the count fails to set forth a fiduciary relationship between the Town and the defendant. The allegations, among other things, state that the Town and the defendant entered into a contract, which provided the defendant with the responsibility of directing and controlling the business operations of the district, including but not limited to, the duty to control funds and accounts. Further, the allegations state that the defendant was subject to a code of professional responsibility pursuant to section 10-145d-400b of Regulations of Connecticut State Agencies, had a duty to obey the law, and had superior knowledge, skill or expertise and that the Town justifiably placed a unique degree of trust and confidence in the defendant. The allegations further include overspending, unbudgeted expenditures, and failing to make proper payments to payees by holding back of numerous signed checks. When read in a light most favorable to sustaining the pleading, count two sufficiently sets forth the elements necessary to sufficiently plead a breach of duty cause of action.
The defendant next moves to strike count three on the grounds that General Statutes § 7-349 by its terms only applies to elected and/or appointed officials of a municipal board of finance and does not provide for a private right of action. The court does not agree with this limited reading of the statute and the defendant has not provided any authoritative case law under which the statute was found to be restricted by its terms to appointed and/or elected members of the board of finance. The statutes at issue are clear and unambiguous. Section 7-349 clearly provides: "Any officer who, in violation of any provision of this chapter, expends or causes to be expended any money of such town, except for the purpose of paying judgments rendered against such town, shall be liable in a civil action in the name of such town, and the amount so drawn from the treasury of such town shall be liquidated damages in such action against any such officer." (Emphasis added.) Nothing within the plain meaning of the statute restricts its application to elected or appointed town board of finance members. General Statutes § 7-348, provides in relevant part: "No officer of such town shall expend or enter into any contract by which the town shall become liable for any sum which, with any contract then in force, shall exceed the appropriation for the department ..." (Emphasis added.) The plaintiff has alleged a violation of § 7-349, while acting as business and facilities manager, an authoritative position involving finance, expenditures, budgets and accounts. When read in a light most favorable to sustaining the pleading, count three sufficiently sets forth a valid statutory cause of action.
Lastly, the defendant moves to strike count four on the grounds that it is barred by governmental immunity and the economic loss doctrines. "[A] motion to strike ordinarily is an improper method for raising a claim of governmental immunity." (Internal quotation marks omitted.) Violano v. Fernandez, 88 Conn.App. 1, 8 n.8, 868 A.2d 69 (2005), aff’d, 280 Conn. 310, 907 A.2d 1188 (2006). "[G]overnmental immunity must be raised as a special defense in the defendant’s pleadings ... Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50] ... Nevertheless, [w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006). As long as the issue of governmental immunity can be resolved within the four corners of the complaint, the court can entertain it on a motion to strike. See Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).
"[A] municipal employee ... has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act ... The word ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." Prescott v. Meriden, 273 Conn. 759, 763, 873 A.2d 175 (2005). "Thus, liability may attach for a negligently performed ministerial act, but not for a negligently performed ... discretionary act." (Internal quotation marks omitted.) Romano v. Derby, 42 Conn.App. 624, 629, 681 A.2d 387 (1996).
In the underlying complaint, the plaintiff alleges negligence by a breach of duties, including, but not limited to: preparing balance sheets, other accounting/financing documents and deposits, balancing bank accounts, preparing and submitting a yearly report, reviewing and processing payroll data, auditing, ensuring timely payments to vendors, preparing reports, ensuring compliance with grant regulations and adhering to policies and the law. Further, the plaintiff’s allegations of negligence go beyond a contractual nature and extend to the defendant’s violation of certain statutory provisions, which impose a duty upon the defendant to not expend funds in excess of appropriation. As such, the economic loss doctrine does not bar the action. Additionally, as pleaded, the court is unable to resolve the issue of governmental immunity on this motion to strike. It is unapparent from within the four corners of the complaint that the defendant’s duties as performed were discretionary, as opposed to ministerial. Wherefore, the court finds the count four, when read in a light most favorable to the plaintiff and staying within the four corners of the complaint, sufficient.
Accordingly, the court denies the motion to strike counts one, two, three and four.