Opinion
No. FST CV 08-4014450 S
November 18, 2009
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STAY DATED JUNE 29, 2009 PLEADING (#136.00)
The plaintiffs filed a one-count verified complaint dated May 6, 2008. The plaintiff, Turn of River Fire Department Inc. (TOR), sought a declaratory judgment, a writ of mandamus and an injunction. The plaintiff, Matthew Maounis, sought a declaratory judgment. The pleadings were closed. The matter was consolidated with another case entitled Turn of River Fire Department, Inc. v. The City of Stamford, Dannel F. Malloy its Mayor and William S. Callion, Jr., its Director of Public Health, Safety and Welfare pending in the Superior Court, Judicial District of Stamford/Norwalk, Docket Number FST CV 07-4011910 S. Both matters were tried together with all the evidence, testimony and exhibits applicable to both cases. The trial concluded with oral argument on June 5, 2009. This court issued a two-page Memorandum of Decision in the above entitled case on June 24, 2009 (#133.00). In that Memorandum of Decision the court found the issues for all defendants on the plaintiffs, Matthew Maounis, declaratory judgment action. The court denied plaintiff's, TOR, claims for mandamus, declaratory judgment and found the issues on the injunctive relief for the defendant, Dannel F. Malloy. The court found the injunctive issues for TOR against the City of Stamford and entered the following order: "The court having found a budgetary impropriety, a judgment will enter in favor of Turn of River Fire Department, Inc. as against the City of Stamford in the amount of $287,762 in the form of an injunction, that the City of Stamford must raise and pay over to Turn of River Fire Department, Inc. said sum of $287,762 on or before June 30, 2009." This court concluded its June 24, 2009 Memorandum of Decision with the following statement: "This Memorandum of Decision will be articulated at a later date by the undersigned in a written Memorandum of Decision in excess of twenty-five pages. This Memorandum of Decision dated June 24, 2009 is a final judgment. It is not an interlocutory judgment. P.B. § 61-1." In accordance with this two-page Memorandum of Decision a judgment entered in favor of TOR against the City for injunctive relief on June 24, 2009.
On August 11, 2009 the court filed an articulated fifty-seven page Memorandum of Decision (#140.10) as noted in the last paragraph of the two-page June 24, 2009 Memorandum of Decision. This court issued a correction to #140.10 on October 14, 2009 entitled Memorandum of Decision on Motion to Reargue and/or Correct dated August 21, 2009 (#143.00).
On June 29, 2009 the City filed this instant Motion for Stay (#136.00). The Motion for Stay stated; "Pursuant to § 52-477 of the Connecticut General Statutes, Defendant City of Stamford moves for a stay of the injunction ordered by the Court (Tierney, J.), by memorandum of decision dated June 24, 2009. Defendant intends to file an appeal from the judgment, as recited in that memorandum of decision, and seeks a stay, pending resolution of such an appeal." In a footnote in the Motion for Stay the City stated: "Although injunctions are not identified in Practice Book § 61-11(b) as matters for which there is no automatic stay, the cited statute implies that there is (or may be) no automatic stay. Rather than engaging in a guessing game — and recognizing the likelihood that if there were a stay, Plaintiff would move to have the stay lifted, such that the existence of a stay would be before the Court, one way or another — Defendant is taking this direct approach." On July 13, 2009 the defendant, City of Stamford, appealed this court's June 24, 2009 decision (#137.00).
TOR filed an Objection to Motion for Stay on June 30, 2009 (#136.20). In that Objection the plaintiff cited P.B. § 61-11; "Except where otherwise provided by statute or other law, proceedings to enforce or carry out a final judgment or order shall be automatically stayed until such time to take appeal has expired." TOR agreed that Gen. Stat. § 52-477 is an exception to the above rule.
TOR filed a Reply Brief Re: Motion to Stay dated July 8, 2009 (#138.00). TOR filed Plaintiffs' Supplemental Objection to Motion for Stay dated July 8, 2009 (#139.00). In the Supplemental Objection TOR alleges: "On July 6, 2009 . . . the City honored the Judgment and paid TOR the sum of $287,762 by wire transfer." "As a result of the City's satisfaction of the Judgment, there is no practical relief which this Honorable Court could grant to the Defendants pursuant to the Motion." "The Motion, therefore, is moot." The City of Stamford filed a Defendant's Memorandum in Support of Motion for Stay dated July 8, 2009 (#138.10). The parties having briefed the issues appeared before this court on September 8, 2009. Neither party offered testimony nor exhibits. Both parties offered oral argument and relied on the above memoranda.
The court finds that this Motion for Stay is directed to the June 24, 2009 Memorandum of Decision as articulated by this court on August 11, 2009 and October 14, 2009. The City of Stamford has filed an appeal from the injunction entered by this court against the City requiring it to affirmatively pay to TOR $287,762. Whether or not an automatic stay is in effect is controlled by both Gen. Stat. § 52-477 and PB. § 61-11. "Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed . . ." P.B. § 61-11(a). "When judgment has been rendered for a permanent injunction ordering either party to perform any act, the court, upon an application similar to that mentioned in section 52-476, shall stay the operation of such injunction until a final decision in the court having jurisdiction, unless the court is of the opinion that great and irreparable injury will be done by such stay or that such application was made only for delay and not in good faith." Gen. Stat. § 52-477. This court issued a permanent mandatory injunction on June 24, 2009. Gen. Stat. § 52-477 creates a presumption in favor of granting an application to stay a mandatory injunction pending an appeal. Tomasso Brothers, Inc. v. October Twenty-Four, Inc., et al., 230 Conn. 641, 655-56 (1994); Hartford Federal Savings and Loan Association v. Tucker, 192 Conn. 1, 7 (1984). A permanent mandatory injunction is not listed in P.B. § 61-11(b) as being exempt from an automatic stay. The Court finds that there is no automatic stay in effect as a result of the City's appeal from the permanent mandatory injunction judgment dated June 24, 2009 as articulated on August 11, 2009 and October 14, 2009. The defendant correctly filed this Motion for Stay in order to obtain a stay. The court further finds that Gen. Stat. § 52-477 creates a presumption for the issuance of a stay to the City.
Under Gen. Stat. § 52-477 the court is permitted to deny the stay under two circumstances: (1) "unless the court is of the opinion that great and irreparable injury will be done by such stay" or (2) "that such application was made only for delay and not in good faith." Gen. Stat. § 52-477; Tomasso Brothers, Inc. v. October Twenty-Four Inc., et al., supra, 230 Conn. 655.
P.B. § 61-12 controls discretionary stays in noncriminal matters in which no automatic stay was entered pursuant to P.B. § 61-11(a). P.B. § 61-12 contains no standards. P.B. § 61-11(e) states: "Requests for a stay pending appeal where there is no automatic stay shall be governed by Section 61-12." The standards as to whether or not to terminate a stay is found in P.B. § 61-11(c). "Termination of a stay may be sought in accordance with subsection (d) of this rule. If the judge who tried the case is of the opinion that (1) an extension to appeal is sought, or the appeal is taken, only for delay or (2) the due administration of justice so requires, the judge may at any time after a hearing, upon motion or sua sponte, order that the stay be terminated." P.B. § 61-11(c) "Due administration of justice" is determined by the standards of Griffin Hospital v. Commission on Hospitals, 196 Conn. 451, 457-59 (1985). In Griffin Hospital the court approved the balancing of equities test: "The court is called upon to balance the results which may be caused to one party or the other, and if it appears to deny or dissolve it may result in great harm to the plaintiff and little to the defendant, the court may well exercise its discretion in favor of granting or continuing, unless indeed, it is very clear that the plaintiff is without legal right." Id. 457. Although Griffin discussed the balancing of the equities test in relation to temporary injunctions that test is applicable to appellate stays. Id. 458. Under Griffin the court has to consider "the likely outcome of the appeal, the irreparability of the prospective harm to the applicant, or the effect of delay in implementation of the order upon other parties as well as upon the public interest. We have vested a large measure of discretion in trial judges in terminating or granting stays . . ." Id. 458-59.
The court has compared the standards for terminating a stay in general with the two standards set forth in Gen. Stat. § 52-477. Gen. Stat. § 52-477 states: "great and irreparable injury will be done by such stay" and Griffin states: "if it appears that to deny or dissolve it may result in great harm to the plaintiff and little to the defendant." Id. 457. Gen. Stat. § 52-477 states: "such application was made only for delay and not in good faith" and PB. § 61-11(c) states: "the appeal is taken, only for delay." These standards are identical. Waterbury Teachers Association v. Freedom of Information Commission, 230 Conn. 441, 451 (1994).
Therefore, the court will apply the presumption under Gen. Stat. § 52-477 and Tomasso Brothers and then consider the standards under P.B. § 61-11(c) and Griffin in rendering a decision on this Motion for Stay.
The court cannot find that the City is appealing only for delay. The City has already made the payment of $287,762. The plaintiff did not strongly argue that the City's appeal was taken for delay. The court finds that the appeal is not moot by reason of the $287,762 payment. The City's payment was not voluntary. The court finds that the City is well within its right in filing its appeal.
In conducting a balancing of the equities the court turns to the findings that it made on pages 19-20 of its articulated August 11, 2009 Memorandum of Decision (#140.10). The court made the following findings of fact: "The $40,000 was allocated toward fuel costs of TOR for its two fire stations. $40,000 is insufficient for TOR to pay for its operating budget outlined above. TOR's insurance alone is in excess of $40,000. TOR has insufficient assets, income and income potential to meet its operating budget for the current fiscal year that ends June 30, 2009. As a result, after July 1, 2008, TOR had to close one fire station, sell a fire truck and reduce other expenses. TOR has little in the way of liquid assets and has very limited ability to raise funds by donations or grants. There is a good chance that TOR may go out of business and no longer be capable of providing fire protection and emergency services to the residents and businesses in the Turn of River area." This court heard no evidence after June 5, 2009. No further facts were brought to this court thereafter despite the opportunity to do so at the September 8, 2009 hearing. This court continues to find that without the $287,762 TOR will be out of business. The prejudice to TOR in granting the stay will be terminal.
Although there was no direct evidence concerning the ownership of real property, there was testimony at trial that TOR owns two parcels of real property upon which it operates its volunteer fire department. In the event that the City is successful in its appeal the $287,762 that was paid by the City on July 6, 2009 pursuant to this court's June 24, 2009 injunction would be required to be repaid by TOR. The City would have recourse to the real property assets of TOR. The prejudice to the City under these circumstances would be minimal.
The court must also consider the public's interest in the continuation of fire protection and emergency services in the Turn of River area. If this stay were granted the court in effect would require TOR to exist without the $287,762. If TOR were to go out of business the current level of fire safety and emergency services now provided by both TOR and the City in the Turn of River area of Stamford would be lessened. The prejudice to the public would be great.
The presumption of a stay under Gen. Stat. § 52-477 has been rebutted.
The court having balanced the equities and considering the due administration of justice, the court orders that the Defendant's Motion for Stay dated June 29, 2009 (#136.00) is denied.