author: ALVORD, J.

text:
    DANIEL HENDERSON v. VICKI LAGOUDIS ET AL.
    (AC 35201)
    (AC 35270)
    Lavine, Alvord and SchaUer, Js.

      Argued November 19, 2013
    officially released February 25, 2014

      Daniel Henderson, self-represented, the appellant (plaintiff).

      Steven C. Rickman, for the appellees (defendants).
   Opinion

ALVORD, J.

In this consolidated appeal, the self-represented plaintiff, Daniel Henderson, appeals from (1) the trial court’s rendering of summary judgment in favor of the defendants, Vicki Lagoudis, Michael Lagoudis and RJG Realty of Meriden, LLC (AC 35270), and (2) the trial court’s dismissal of his application for a prejudgment remedy (AC 35201). The court, B. Fischer, J., granted the defendants’ motion for summary judgment on the ground that the plaintiff did not have standing to bring the action. The court, Young, J., dismissed the plaintiffs application for a prejudgment remedy as a sanction after finding that he “wilfully and with specific intent, attempted to tamper with a witness by intimidation and threat of legal proceedings.”

On appeal, the plaintiff claims that Judge Fischer improperly granted the defendants’ motion for summary judgment because (1) he was collaterally estopped from determining that the plaintiff lacked standing to bring the action because of a prior ruling by the court, A. Robinson, J., on the defendants’ motion to dismiss, and (2) he failed to afford the plaintiff an evidentiary hearing at the time of the scheduled argument on the defendants’ motion for summary judgment. The plaintiff additionally claims that Judge Young improperly dismissed his application for a prejudgment remedy because his “order was erroneous.” Although we conclude that the plaintiffs claims are without merit, Judge Fischer should have dismissed the plaintiffs action instead of rendering summary judgment when he concluded that the plaintiff lacked standing. For that reason, in AC 35270, we reverse the summary judgment and remand the case with direction to render judgment dismissing the action for lack of subject matter jurisdiction. Because of this determination, the plaintiffs appeal in AC 35201, with respect to the dismissal of his application for a prejudgment remedy, is moot.

The record reveals the following facts and procedural history. The plaintiff commenced the present action on January 3, 2012. It was his fifth action against these defendants for, inter alia, their alleged trespass onto adjoining property in Meriden (subject property) in January, 2010. The first action was brought by GMC Laud Holdings, Inc. (corporation), claiming to be the owner of the subject property allegedly damaged by the defendants. The plaintiff, who is not a member of the bar, filed an appearance “pro se” on behalf of the corporation, resulting in the trial court’s sua sponte dismissal of the action. The subsequent actions were brought by the self-represented plaintiff in his name, wherein he claimed to be the owner of the subject property. All of the prior actions have either been withdrawn or dismissed. On September 30, 2011, the fourth action was dismissed by Judge Robinson because she determined that the plaintiff failed to establish that he owned the property “with credible evidence” and therefore lacked standing.

Shortly after the plaintiff commenced the present fifth action, the defendants filed a motion to dismiss his complaint and his application for a prejudgment remedy on the grounds that he lacked standing and was collaterally estopped from claiming that he did have standing by Judge Robinson’s dismissal of the fourth action. After an evidentiary hearing, Judge Robinson denied the defendants’ motion to dismiss. One month later Judge Robinson held a status conference on the record to discuss scheduling and discovery requests. At one point during the conference, the plaintiff stated that Judge Robinson already had determined that he owned the subject property and had standing to pursue the action. Judge Robinson responded: “I do want to clarify one thing. On the motion to dismiss, all I found [was] that you presented enough evidence to support your allegation that you do have standing, because in a motion to dismiss I am required to look at the—the facts most favorable to having jurisdiction ... so that’s what I did.” Later during that status conference, the defendants’ counsel stated: “[T]o add, to the court as much for [the plaintiff], if we cannot agree to . . . a nonjury trial in a quick way, then this issue of his standing is still out there, and I can move for summary judgment.” Judge Robinson responded: “Yeah. Absolutely.” The plaintiff responded: “And I’m prepared to defend a summary judgment action.”

The defendants filed a motion for summary judgment on October 3, 2012. Claiming that the plaintiff did not own the subj ect property and therefore lacked standing, the defendants filed a memorandum of law, affidavit by the defendants’ counsel, and various documents as exhibits to the affidavit. The plaintiff filed an affidavit and a memorandum of law in opposition to the motion, primarily claiming that Judge Robinson’s denial of the defendants’ motion to dismiss collaterally estopped the defendants from raising the issue of standing in a summary judgment motion.

Prior to the hearing on the defendants’ motion for summary judgment, Judge Young held a hearing on the plaintiffs application for a prejudgment remedy. Immediately after the parties introduced themselves for the record, Judge Young stated that he wanted to question the plaintiff about a letter that the plaintiff had sent the zoning enforcement officer of the town of Meriden. Judge Young read the plaintiff his Miranda rights, and asked the plaintiff whether he understood those rights and if he wanted to consult with an attorney. The plaintiff responded that he did understand his rights and that he did not wish to consult with an attorney. Judge Young then proceeded to question the plaintiff under oath as to his puipose for sending the letter, which was titled as a notice of intent to sue. At the conclusion of the plaintiffs testimony, Judge Young found that the plaintiff attempted to tamper with a witness and dismissed his application for a prejudgment remedy with prejudice. The plaintiff appealed from the dismissal of his prejudgment remedy application on November 19, 2012.

On November 26, 2012, Judge Fischer held a hearing on the defendants’ motion for summary judgment. At the beginning of the hearing, the plaintiff asked that the matter be passed because his witness had not yet arrived at the courthouse. Judge Fischer responded: “Well, this is a motion for summary judgment. There [are] no witnesses that I’m going to hear; this is not an evidentiary hearing. . . . And I’ll make a decision based on the paperwork filed, but I’m not going to have an evidentiary hearing.” He further noted that he had reviewed all of the paperwork filed in the matter.

Following the argument of the defendants’ counsel in support of the motion, the plaintiff responded that the defendants should be collaterally estopped from raising the standing issue because it was their “second pretrial motion asked in this court to stop me from relitigating a question of jurisdiction, a jurisdictional question that was conclusively decided on May 18th by Judge Robinson.” The plaintiff argued: “I should be able to put my witness on the stand to clarify exactly what was said because [the defendants are] cherry-picking what [the witness] said out of different parts; it’s like taking the Bible and trying to prove your point by trying to take a few verses out, and—it’s—and my position it’s the defendants who are collaterally estopped from relitigating the same exact issue in a second pretrial motion that was fully and fairly litigated on March 19th, Your Honor.”

Judge Fischer granted the defendants’ motion for summary judgment later that day. His written order stated: “Court has reviewed all paperwork submitted in support of this motion and in opposition to this motion. Court has considered arguments of the parties at short calendar on November 26, 2012. Motion is granted as the plaintiff did not have standing. The plaintiff did not own or exclusively possess the property he alleges the defendants trespassed on in 2009.” The plaintiff appealed from the granting of the defendants’ motion for summary judgment on December 11, 2012.

I

The plaintiffs first claim is that Judge Fischer was collaterally estopped from determining that the plaintiff lacked standing to bring this action against the defendants on the basis of Judge Robinson’s prior ruling in this matter on the defendants’ motion to dismiss. The plaintiff argues that the issue of his standing was “fully and fairly litigated” in the earlier pretrial motion, thereby precluding the defendants from arguing the standing issue in their motion for summary judgment, which was the defendants’ second pretrial motion challenging the court’s jurisdiction.

The fundamental principles underlying the doctrines of res judicata and collateral estoppel are well established. “[T]he issue of whether principles of res judicata and collateral estoppel are applicable to a particular set of facts is a question of law over which an appellate court’s review is plenary.” Ammirata v. Zoning Board of Appeals, 264 Conn. 737, 744-45, 826 A.2d 170 (2003). “The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. . . . Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Citations omitted; emphasis altered; internal quotation marks omitted.) Lafayette v. General Dynamics Corp., 255 Conn. 762, 772, 770 A.2d 1 (2001).

The plaintiff is confusing the collateral estoppel doctrine with the law of the case doctrine. Here, Judge Robinson’s prior ruling on the motion to dismiss was a ruling in the same case, not a ruling in a prior action between the parties. Thus, the collateral estoppel doctrine is not applicable. Even if we analyze the plaintiffs claim under the law of the case doctrine, however, his argument is without merit.

The law of the case doctrine provides that “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” (Internal quotation marks omitted.) Wasko v. Manella, 87 Conn. App. 390, 395, 865 A.2d 1223 (2005). “A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. . . . [0]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.” (Emphasis added; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 130-31, 788 A.2d 83 (2002).

Judge Robinson’s ruling on the motion to dismiss was an interlocutory ruling. Her determination that the plaintiff had introduced sufficient evidence at the March 19, 2012 evidentiary hearing to survive the defendants’ motion to dismiss, however, was not the law of the case when the standing issue again was raised at a subsequent hearing on the defendants’ motion for summary judgment. A trial court applies different principles and a different analysis when ruling on a motion to dismiss as opposed to a motion for summary judgment.

The case of Manifold v. Ragaglia, 94 Conn. App. 103, 891 A.2d 106 (2006), illustrates this point. In Manifold, the defendants filed a motion to dismiss the complaint for lack of subject matter jurisdiction, which was denied by the court. Id., 110. Subsequently, the defendants filed a motion for summary judgment on the same ground, with which they submitted affidavits, deposition transcripts and other documentary evidence. Id., 111. The trial court, stating that it was treating the motion for summary judgment as a motion to dismiss, denied the subsequent motion, and the defendants filed an appeal from that determination. Id. This court held that the trial court improperly applied the standard for a motion to dismiss, rather than the standard for summary judgment, to the defendants’ claim that the court lacked subject matter jurisdiction. Id., 113, 123.

In reaching that determination, the court in Manifold reasoned: “Whereas a motion to dismiss is decided only on the allegations in the complaint and the facts implied from those allegations, summary judgment is decided by looking at all of the pleadings, affidavits and documentary evidence presented to the court in support of the motion. The latter standard, therefore, takes account of the facts that have been developed through discovery, rather than merely relying on the plaintiffs’ allegations at the outset of the action. Once litigation has advanced through discovery, the requirement that a court rigidly apply the standard for a motion to dismiss to issues regarding subject matter jurisdiction, even if the issue is presented through a motion for summary judgment, seems to us too narrow an interpretation of the rules of practice. . . . The better approach, we conclude, is for the trial court to treat the motion as a motion for summary judgment, as it was presented, and to evaluate the issue of subject matter jurisdiction on the basis of a thorough review of the pleadings, affidavits and any other documentary proof submitted by the parties.

“Our resolution of that issue is also influenced by the well settled principle that subject matter jurisdiction can be raised at any time. . . . The possibility that the court’s subject matter jurisdiction may be challenged at each stage of litigation militates against requiring litigants to use the motion to dismiss at all times to bring the issue to the court’s attention. If the motion to dismiss was the only procedural vehicle by which subject matter jurisdiction could be contested, courts may not consider evidence produced through discovery that is relevant to the determination. Further, the importance of resolving any jurisdictional defects as early as possible in the litigation, so as not to waste judicial resources or the resources of the parties involved, favors the use of summary judgment as an additional procedural vehicle by which to challenge subject matter jurisdiction. Doing so enables the court to undertake a more complete evaluation of whether subject matter jurisdiction exists before proceeding to trial.” (Citations omitted; emphasis in original.) Id., 120-21.

From the foregoing discussion, we conclude that the doctrine of collateral estoppel is not applicable to Judge Robinson’s prior interlocutory ruling on the defendants’ motion to dismiss and that the law of the case doctrine likewise is not applicable under the circumstances of this case. Judge Fischer properly addressed the defendants’ claim that the plaintiffs lack of standing deprived the court of subject matter jurisdiction, as raised in the defendants’ motion for summary judgment.

II

The plaintiffs next claim is that Judge Fischer improperly denied his request for an evidentiary hearing at the time of the argument on the defendants’ motion for summary judgment. He argues that he “was denied due process when the trial court . . . denied him an evidentiary hearing.”

“Due process does not mandate full evidentiary hearings on all matters, and not all situations calling for procedural safeguards call for the same kind of procedure. ... So long as the procedure afforded adequately protects the individual interests at stake, there is no reason to impose substantially greater burdens . . . under the guise of due process.” (Internal quotation marks omitted.) Countrywide Home Loans Servicing, LP v. Creed, 145 Conn. App. 38, 50, 75 A.3d 38, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013). “Due process ... is not a technical conception with a fixed content unrelated to time, place and circumstances.” (Internal quotation marks omitted.) Commissioner of Environmental Protection v. Farricielli, 307 Conn. 787, 820, 59 A.3d 789 (2013).

The defendants first challenged the plaintiffs ownership of the subject property, and hence his standing to bring the action, by way of a motion to dismiss. An evidentiary hearing was held at that time, and the plaintiff had the opportunity to present whatever evidence he had in support of his claim that he owned the subject property. Sometime later, after discovery requests had been served, the defendants again challenged the plaintiffs standing to bring the action by way of a motion for summary judgment. Pursuant to Practice Book § 17-45, “[a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. . . . Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence.” Practice Book § 17-49 provides: “The judgment sought 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.”

The only affidavit submitted in opposition to the defendants’ motion for summary judgment was the plaintiffs affidavit. The only documentary evidence submitted by the plaintiff consisted of pictures of the subject property to show the alleged damage caused by the defendants’ actions. The plaintiff did not submit an affidavit by the witness he planned to have testify at the requested evidentiary hearing. Moreover, he did not indicate to Judge Fischer that his proposed witness had any information other than the evidence that already had been presented to Judge Robinson at the evidentiary hearing on the defendants’ previous motion to dismiss. Judge Fischer expressly stated that he had considered all of the paperwork submitted in support of and in opposition to the motion and that he had considered the arguments of the parties. Under the circumstances of this case, Judge Fischer did not improperly refuse to grant the plaintiffs request for a second evidentiary hearing on the issue of his ownership of the subject property.

Ill

The plaintiffs final claim is that Judge Young improperly dismissed his application for a prejudgment remedy. Because we have concluded that the plaintiffs challenges to Judge Fischer’s determinations relating to the summary judgment are without merit, we do not need to reach this issue. We are remanding this matter to the trial court with direction to dismiss the action for lack of subject matter jurisdiction. In light of this result, any analysis as to whether Judge Young improperly dismissed the plaintiffs application for a prejudgment remedy—seeking to secure the defendants’ assets in the event he should prevail in the action—would be academic. “[I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) G Power Investments, LLC v. GTherm, Inc., 141 Conn. App. 551, 557, 61 A.3d 592 (2013).

In AC 35270, the form of the judgment is improper, the summary judgment is reversed and the case is remanded with direction to render judgment dismissing the action for lack of subject matter jurisdiction. In AC 35201, the appeal is dismissed as moot.

In this opinion the other judges concurred.

       A nonattomey does not have authority to represent a corporation. See Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn. App. 543, 546-47, 642 A.2d 62, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994).

       Judge Robinson’s order provided: “Notwithstanding the defendants’ claim that the [plaintiff] has been previously a4judged to lack standing, this court denies the motion for the following reasons. First, though the plaintiff has previously been found to lack standing, those findings do not form a proper basis to dismiss this action. If the defendants] wish to plead, as a special defense, collateral estoppel or res judicata, [they] may do so. Second, the court must consider the evidence presented by the plaintiff in this action. That evidence, albeit, only recently produced, supports the plaintiffs claim that he is the legal owner of the property at issue. As such, this court concludes that he has standing to proceed and the motion to dismiss must be denied.”

       A copy of the letter had been submitted as an attachment to a motion for continuance filed in court by the defendants.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The letter, marked as a court exhibit, stated: “Be advised, it has come to my attention that you will testify for Lagoudis on 9-28-12 at New Haven Court in the matter of Henderson v. Lagoudis, CV125034082, and that your testimony may include, that it’s your belief that Lagoudis did not exceed the ‘excavation area’ that is identified on the map that Lagoudis presented to you/ciiy of Meriden for permission to excavate, and that you did not order work stopped at the site.
      “Be advised, if this is your testimony, creates a cause of action against you/city of Meriden that I will pursue by moving to cite you/city in as party defendants and/or file separate action.
      “Thank you for your time. I look forward to seeing you on the 28th.”

       Judge Young’s order stated: “This matter was scheduled for a hearing on the plaintiffs application for prejudgment remedy. Prior to that hearing, the court conducted a preliminary hearing concerning a letter written by the plaintiff to a witness scheduled to testily. The court conducted an evidentiary hearing and finds that the plaintiff, wilfully and with specific intent, attempted to tamper with a witness by intimidation and threat of legal proceedings. The court finds the plaintiff not credible in his assertion that he believed he had an obligation to put the city on notice pursuant to General Statutes § 7-465 for a perceived prospective claim which had not yet ripened. The court finds the plaintiff attempted to control and chill the testimony of a witness, to prevent testimony and/or to induce false testimony in this matter. As a sanction, the court dismisses the plaintiffs application for prejudgment remedy with prejudice and further orders that the plaintiff be precluded from filing any further prejudgment remedy applications in this or any other action concerning the subject properties.”

       This is the only time that the plaintiff indicated to Judge Fischer what his witness’ testimony would be if his request for an evidentiary hearing had been granted.

       This court determined that the trial court’s denial of the defendants’ motion for summary judgment, which asserted that they were protected by sovereign immunity, was an immediately appealable final judgment. Manifold v. Ragaglia, supra, 94 Conn. App. 112.

       “It is well established that [a] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.” (Internal quotation marks omitted.) Countrywide Home Loans Servicing, LP v. Creed, 145 Conn. App. 38, 50, 75 A.3d 38, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013).


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    KEVIN SHEVLIN ET AL. v. CIVIL SERVICE COMMISSION OF THE CITY OF BRIDGEPORT ET AL.
    (AC 34987)
    Lavine, Robinson and Sheldon, Js.

      Argued November 12, 2013
    officially released February 25, 2014

      Henry F. Murray, for the appellants (defendant Scott Boris et al.).

      Thomas W. Bucei, for the appellees (plaintiffs).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LAVINE, J.

This administrative appeal requires us to construe the Bridgeport City Charter (charter) and the rules (rules) of the Bridgeport Civil Service Commission (commission) to identify the date on which eligibility (eligibility date) to take fire captain promotion examination number 2319 (examination 2319) should have been determined. To determine the eligibility date, we must first decide whether the trial court properly found that a certain firefighter was not laid off when he was demoted from the captain to the lieutenant class. We conclude that the court properly found that the firefighter was not laid off and, therefore, we affirm the judgment of the trial court.

The defendants appeal, following a trial to the court, which rendered judgment in favor of the plaintiffs. On appeal, the defendants claim that the court improperly determined the eligibility date for examination 2319 by misconstruing and misapplying the terms of the charter. We disagree.

The plaintiffs commenced this action on March 30, 2012, seeking a judicial determination of the eligibility date for examination 2319. They alleged, in part, that they were long-standing members of the Bridgeport Fire Department (department) and that they were lieutenants qualified for promotion to the rank of captain as of August 1, 2011. They further alleged that the commission improperly set August 21, 2011, as the eligibility date. More specifically, the plaintiffs alleged that the city, through its personnel director, David J. Dunn, failed to conduct examination 2319 within 120 days of a vacancy in the captain classification and extended the eligibility date beyond 120 days of the vacancy. As a consequence, Dunn permitted sixteen lieutenants to take examination 2319, although they did not satisfy the three year time-in-grade requirement as of 120 days from the vacancy in the captain classification. The plaintiffs sought a temporary injunction barring the commission and Dunn from conducting a captain examination pending the court’s determination of the merits of their complaint.

Subsequent to the commencement of the action, the court, Beilis, J., granted a motion to add indispensable parties. See footnote 1 of this opinion. Thereafter, the parties stipulated to certain facts and tried the case to the court, Radcliffe, J., and submitted posttrial briefs. On July 16,2012, Judge Radcliffe issued a memorandum of decision, rendering judgment in favor of the plaintiffs. The court ordered the commission and Dunn to utilize August 1,2011, as the eligibility date and that only those candidates who were qualified to sit for the captain examination as of August 1, 2011, were eligible for promotion to the rank of captain on the basis of the results of the examination conducted prior to trial.

The court found that, when a vacancy occurred in the captain class in April, 2011, and there was no promotion list, Dunn determined that a captain examination was necessary, and he set August 21, 2011, as the eligibility date. The plaintiffs disagreed with the eligibility date that Dunn had set and appealed to the commission. At a February 28, 2012 special meeting, the commission heard arguments from Dunn, the city attorney, and the attorney representing the plaintiffs. The commission debated the provisions of the charter and rules and voted unanimously to set August 1, 2011, as the eligibility date. The court found that, in doing so, the commission disregarded Dunn’s recommendation that April 23, 2011, was the date from which the eligibility date should be calculated.

The court also found that, at the commission’s regularly scheduled meeting held on March 13, 2012, Commissioner Willie C. McBride, Jr., moved to reconsider the commission’s February 28, 2011 decision as to the eligibility date. The commission retired to executive session. When it returned to the public meeting, the commission voted to reconsider its prior decision, and voted to set August 21, 2011, as the eligibility date for examination 2319.

The court found that, although the controversy alleged in the complaint centered on the action taken by the commission on March 13,2012, the dispute stemmed from an incident that had occurred on March 1, 2007, when Lieutenant John Macnicholl was involved in an altercation with his superior. Macnicholl was charged with violating department policies and was dismissed from employment on July 3, 2007. Prior to being dismissed, however, Macnicholl took a captain examination. On the basis of his performance on that examination, Macnicholl ranked third on the resulting promotion list.

The court also found that Macnicholl appealed the termination of his employment to the State Board of Mediation and Arbitration (board). The board unanimously rejected the city’s claim that MacnicholTs dismissal was for just cause and ordered the city to make him whole. The board’s February 11, 2009 decision noted that Macnicholl ranked third on the promotion list for captain at the time of his employment termination. When Macnicholl was reinstated, promotion list 2214 was in effect and was due to expire on January 20,2010.

In addition, the court found that Chief Brian Rooney conducted a performance review of Macnicholl after he was reinstated as a lieutenant. Despite the board’s unanimous finding that Macnicholl had no prior disciplinary history and that his personnel file contained commendations, Rooney rated Macnicholl’s performance as unsatisfactory and found that he was not fit to serve as a captain in the department. On May 26, 2009, five days after Rooney completed his evaluation of Macnicholl, Captain Robert McLeod was promoted to the rank of provisional assistant chief, thereby creating a vacancy in the captain class. On June 9, 2009, pursuant to Rooney’s evaluation of Macnicholl, city personnel director, Ralph Jacobs, declined to promote Macnicholl to the captain class. Macnicholl appealed Jacobs’ decision to the commission on July 13, 2009. On September 1, 2009, while Macnicholl’s appeal to the commission was pending, Lieutenant Paul Cocea, who ranked twenty-fifth on promotion list 2214, was promoted to the captain class. The commission sustained Macnicholl’s appeal on March 18, 2010, and, thereafter, Macnicholl was appointed to the captain class. The court found that the department budget and structure, however, allowed for only eighteen positions in the captain class. Because there were no vacancies in the captain class at the time, Cocea was demoted from captain to lieutenant.

On March 19, 2010, Rooney wrote to Dunn, stating: “I am requesting you to send . . . Cocea a letter informing him of his recall rights to the position of Captain within the next two . . . years when a vacancy exists.” In a March 22, 2010 letter to Cocea, Dunn wrote “Layoff’ in the reference line and referred to section 210 of the charter and Rule XIII of the rules. Dunn’s letter to Cocea further stated in part that “[y]ou will retain recall rights until the next available Captain’s position until March 21,2012.” Soon thereafter, on April 2, 2011, Captain Luis Rivera retired from the department, and on April 9, 2011, Cocea again was promoted to the captain class. The court found that at the time Cocea was reappointed to the captain class, promotion list 2214 had expired on January 20, 2010.

The court found that on April 23, 2011, Captain Richard Thode was promoted to the assistant chief class, which created a vacancy in the captain class. Because promotion list 2214 had expired, Dunn prepared to conduct a captain examination and determined that an individual had to have been a lieutenant in the department for at least three years as of August 21, 2011, to be eligible to take examination 2319. Dunn calculated the eligibility date pursuant to the “Walker Rule,” by adding 120 days to the date Thode was promoted to assistant chief, i.e., April 23, 2011, as the date on which the vacancy occurred.

In addition, the court found that the plaintiffs challenged Dunn’s determination of the eligibility date by way of an appeal to the commission. The commission heard the appeal at a special meeting held on February 28, 2012, where the plaintiffs claimed that Cocca’s demotion to the lieutenant class in March, 2010, was not a layoff under the charter and rules and that Cocea should not have been placed on a reemployment list. The plaintiffs maintained that 120 days from April 2, 2011, the date Rivera retired, was the date to use to determine the eligibility date and asked the commission to set August 1, 2011, as the eligibility date. The court found that the commission unanimously agreed with the plaintiffs that the correct eligibility date was August 1, 2011. Two weeks later, however, at its regular March 13, 2012 meeting, Commissioner McBride asked the commission to reconsider its February 28,2010 decision regarding the eligibility date. After the commission met in executive session, it returned to the public meeting, agreed to reconsider its prior decision, and adopted the date of August 21, 2011, as the eligibility date. The plaintiffs thereafter filed the present action.

In adjudicating count one of the complaint, which alleged that the commission improperly established August 21, 2011, as the eligibility date, the court relied on several sections of the charter and rules that were placed into evidence. In framing the issue, the court found that the plaintiffs had not alleged that Cocea had failed to perform his duties as a captain in a satisfactory fashion between September 1,2009, and March 21,2010. The question, therefore, was whether Dunn properly had placed Cocca’s name on a reemployment list in March, 2010. The court concluded that the answer turned on whether Cocea had been laid off pursuant to § 210 (a) of the charter. See Bridgeport Charter, c. 17, § 210 (a).

The court found that at the time Cocea was demoted in March, 2010, the position of captain to which he had been appointed in September, 2009, had not been discontinued due to lack of work or lack of funds. The number of positions in the captain class had not changed. Moreover, the court found that the rules do not include demotion in the definition of layoff. It also found that the right to be placed on a reemployment list pursuant to Rule XIII (2) applies only in cases of layoff, reemployment, transfer or vacation. The court further found that the term transfer did not apply to Cocca’s demotion as he was at all times relevant a member of the department. The court also found that Cocea was demoted due to Macnicholl’s successful appeal from Jacob’s decision not to appoint him to the captain class. The court therefore concluded that Cocca’s demotion was not a layoff and that his name should not have been placed on a reemployment list. The court also found that promotion list 2214 expired in January, 2010, that a vacancy occurred in the captain class when Rivera retired, and that the commission properly concluded on February 28, 2012, that the eligibility date for examination 2319 was August 1, 2011.

In conclusion, the court stated that the eligibility date for the captain promotion examination 2319 is August 1,2011, and that an applicant must possess the qualifications to sit for the examination on that date. The court ordered the commission and Dunn to use August 1, 2011, as the eligibility date and that only those candidates who possessed the qualifications to sit for examination 2319 as of August 1, 2011, were eligible for promotion to the captain class on the basis of the results of an examination conducted prior to trial. The court rendered judgment in favor of the plaintiffs and the defendants appealed.

On appeal, the defendants claim that the court’s factual findings are clearly erroneous and that its interpretation of the charter and the rules is improper. The parties submitted stipulations of fact to the court, and there is no disagreement as to the reasons for, times of, and names of persons involved. We must determine then whether the court properly determined, pursuant to the charter and rules, that Cocea was not laid off in March, 2010, when he was demoted from captain to lieutenant. We conclude, as a matter of law, that Cocea was not laid off and, therefore, that his name was improperly placed on a reemployment list. As a consequence, Dunn improperly calculated the eligibility date as August 21, 2011.

The applicable standard of review is well known. “[T]he scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . .

“As with any issue of statutory construction, the interpretation of a charter or municipal ordinance presents a question of law, over which our review is plenary. . . . We turn, therefore, to our usual tools of statutory construction. In determining whether the city’s methodology violates the statutory scheme of the charter, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case . . . .” (Citations omitted; internal quotation marks omitted.) Kelly v. New Haven, 275 Conn. 580, 607-608, 881 A.2d 978 (2005). “In construing the civil service provisions of the charter, we are always mindful of the importance of maintaining the integrity of [the city’s civil service] system.” (Internal quotation marks omitted.) Id., 608.

“The civil service law provides for promotion in governmental employment according to merit and fitness ascertained by competitive examination. . . . The primary purpose of these laws is to guarantee that the meritorious secure jobs and to free public employees from the fear of personal and political reprisal. . . . These examinations not only protect the employees but also benefit the general public in that they tend to eradicate corruption as well as ensure that the persons with the necessary qualifications to discharge intelligently their duties pertaining to public office will do so. . . .

“It cannot be overemphasized that proper competitive examinations are the cornerstone upon which an effective civil service system is built. Any violation of the law enacted for preserving this system, therefore, is fatal because it weakens the system of competitive selection which is the basis of civil service legislation. . . . Strict compliance is necessarily required to uphold the sanctity of the merit system . . . good faith of the parties will not validate illegal appointments, nor will continued employment in an invaiidly obtained position. ... To excuse good faith violations of our civil service law would open the door to abuses which the law was designed to suppress.” (Citations omitted; internal quotation marks omitted.) Cassella v. Civil Service Commission, 202 Conn. 28, 34-35, 519 A.2d 67 (1987).

On the basis of our construction of the relevant provisions of the rules and the charter, we conclude that a layoff occurs if a firefighter is separated from employment when a position is discontinued due to either lack of work or lack of funds. Rule I provides in relevant part: “The several terms hereinafter mentioned shall be construed as follows: ‘position’ shall mean any office or employment either occupied or vacant, calling for the performance of certain duties and the exercise of certain responsibility by one individual either on a full-time or part-time basis; ‘class’ shall mean a group of positions established under these rules sufficiently similar in respect to their duties and responsibilities . . . ‘transfer’ shall mean the change of any employee with permanent status from a position in one department to a position in the same class in another department; ‘promotion’ shall mean a change of an employee with permanent status from a position in one class to a position in another class having a more remunerative salary range; ‘demotion’ shall mean a change of an employee with permanent status from a position in one class to a position in another class having a less remunerative salary range; ‘termination’ shall mean the separation from a position in the classified service of an employee who has been employed under either a provisional appointment, a temporary appointment or an emergency appointment; ‘lay-off shall mean the separation from the service of an employee having probationary or permanent status where the position has been discontinued because of either lack of work or lack of funds." (Emphasis added.) Bridgeport Rules of the Civil Service Commission, Rule I.

Section 210 (a) of the charter provides in relevant part: “When any employee in the classified service, who has been performing his duties in a satisfactory manner as shown by the records of the department ... in which he has been employed, shall be laid off because of lack of work or lack of funds, or has been on authorized leave of absence and is ready to report for duty when a position is open . . . the personnel director shall, on order of the commission, cause the name of such employee to be placed on the re-employment list for the appropriate class, for re-employment within two years thereafter when vacancies in such class shall occur. . . .” (Emphasis added.)

On appeal, the defendants claim that the calculation of the eligibility date for examination 2319 should begin on April 23, 2011, the date that Thode was promoted, not April 2, 2011, the date that Rivera retired. They argue that under the charter, the city is not required to schedule a competitive test when a vacancy in a position occurs if there is either an active employment list for the class that is based on a promotion examination or there are individuals on an active reemployment list for that class. See Bridgeport Charter, c. 17, § 211 (b). An employment list for a class lasts for two years from the date the first promotion is made from the list. See Bridgeport Charter, c. 17, § 211 (a). An employee’s right to be recalled to the position previously held by the employee lasts for two years from the date the person was placed on the list. Bridgeport Charter, c. 17, § 210. In this case, the promotion list 2214 for captain expired on January 20, 2010.

The defendants contend, however, that Cocea was placed on the reemployment list for the captain class following his layoff from the rank of captain on March 21, 2010. Dunn informed Cocea, at that time, that he had recall rights to the captain class until March 21, 2012, or the next available position within the class. The defendants contend that the next available position in the captain class occurred when Rivera retired and Cocea was promoted from the reemployment list on April 9, 2011. From the defendants’ perspective, because Cocea was not promoted from the promotion list, there was no vacancy on the promotion list until Thode was promoted. The fallacy in the defendants’ position is that Cocea was not laid off, and he was not properly placed on the reemployment list. Although the defendants argue that there was no work for Cocea in the captain class when Macnicholl was promoted to that class, the department command and leadership structure provided for only eighteen positions in the captain class. The defendants’ position is contrary to the definitions set forth in Rule I of the rules and § 210 (a) of the charter. In their brief on appeal no less, the defendants acknowledge that Cocca’s transfer from the captain class back to the lieutenant class was a demotion within the meaning of the rules.

Section 210 (a) of the charter provides in relevant part: “When any employee in the classified service, who has been performing his duties in a satisfactory manner . . . shall be laid off because of lack of work or lack of funds . . . the personnel director shall, on order of the commission, cause the name of such employee to be placed on the re-employment list for the appropriate class, for re-employment within two years . . . .” The record discloses that when Macnicholl was promoted to the captain class, the department structure and budget allowed for eighteen captain positions. There were no vacancies in the captain class. As the defendants themselves point out, Cocea was demoted to the lieutenant class in March, 2010.

The factual circumstances here do not constitute a layoff. The rules define layoff as “the separation from the service of an employee . . . where the position has been discontinued because of either lack of work or lack of funds.” The evidence supports the trial court’s findings that Cocca’s demotion was due to Macnicholl’s promotion, the position was not eliminated, and Cocea was not separated from service in the department. There was no vacancy in the captain class because the position was not eliminated due to lack of work or lack of funds. There were eighteen positions in the captain class when Cocea was promoted in September, 2009, and eighteen positions at that level when he was demoted in March, 2010. Because Cocea was not laid off, his name should not have been put on the reemployment list.

Promotion list 2214 expired in January 20,2012; Rivera’s retirement thus created a vacancy at the captain class and there was no active promotion list. The date of Rivera’s retirement, therefore, is the date from which Dunn should have calculated the eligibility date. We therefore conclude that the vacancy on promotion list 2214 occurred when Rivera retired on April 2, 2011, and that the court properly determined that the eligibility date for examination 2319 is August 1, 2011. We, therefore, affirm the judgment of the trial court in all respects.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants on appeal are Scott Boris, Andrew Ellis, Peter Morotto, Robert Novak, David Purcell, and Ronald Rolfe, who are fire lieutenants employed by the City of Bridgeport (city).
      The action was commenced against two defendants, the Civil Service Commission of the City of Bridgeport and David J. Dunn, acting personnel director for the city. On April 15, 2012, eleven lieutenants in the Bridgeport Fire Department moved to intervene in the action, claiming that they were indispensable parties. Those lieutenants are: Lee Williamson, Scott Boris, Timothy Bottone, Mark Cody, Matthew Deysenroth, Lawrence Donnelly, Andrew Ellis, Andrew Fierlit, Peter Morotto, and Robert Novak. Darren Penix, David Purcell, Michael Raffolo, Ronald Rolfe, Giovanni Sanzo, and Paul Cocea also were made defendants, as their eligibility to take the captain’s examination was date dependent, as well.
      Bridgeport Fire Fighters Local 834 of the International Association of Fire Fighters filed a motion to intervene on June 4,2012; the motion was granted.

       The plaintiffs are twenty-one members of the Bridgeport Fire Department who had attained the rank of lieutenant and were qualified to take the captain’s examination on August 1, 2011. They are Kevin Shevlin, David Simon, Shane L. Porter, Peter Mosley, Francis Falanga, Kenneth Domshine, Everal Wallen, Kevin Higgins, Albert Diaz, Michael J. Filakovsky, Armando Cora, John McMahon, Carlos Reyes, Lee Taylor, James Elward, Ron LaFlamme, Ray Lopez, Glen Christie, Mike Meehan, Alsee McCray, and Dave Acanfora.

       In their brief on appeal, the defendant members of the department represent that they established “time-m-grade eligibility as of August 10, 2011,” and that forty-seven lieutenants participated in examination 2319. They also represented that they ranked first, second, sixth, eighth, eleventh, and sixteenth on examination 2319.

       The captain examination that Macnicholl took is not the examination at issue in this appeal.

       Pursuant to § 211 (a) of the charter, the life of a promotion list is two years.

       In the first paragraph of his letter to Cocea, Dunn stated: “Please be advised that effective Sunday, March 21, 2010 at 8:00 am. you were laid off as Captain and reinstated as a Fire Lieutenant with the Bridgeport Fire Department. Your layoff is pursuant to Section 210 of the City Charter and Rule Xin of the Civil Service Rules and Regulations. You will retain recall rights until the next available Captain’s position until March 21, 2012.”

       The three year eligibility requirement was not an issue at trial nor is it on appeal.

       See Walker v. Jankura, 162 Conn. 482, 294 A.2d 536 (1972).

       Cocca’s promotion to captain on April 9,2011, has never been challenged by anyone, and is not an issue in this appeal.

       The court concluded that, because it found that August 1, 2011, is the eligibility date, it was not necessary to consider the plaintiffs’ claim that the commission acted unlawfully on March 13, 2012, when it established August 21, 2011, as the eligibility date. The plaintiffs have not raised this issue on appeal.

       The authorized leave of absence language is not relevant to this appeal.

       Bridgeport Charter, c. 17, § 211 (b) provides: “The personnel director may, from time to time, hold promotion tests for any or all positions in the competitive division of the classified service which are allocated to class which have been or shall be established to be at the promotion level by the civil service commission. When a position in a promotion class shall become vacant, and no appropriate re-employment list or employment list exists, the personnel director shall, withm one hundred and twenty days of the date of the creation of the vacancy, hold a promotion test for such class.”

       There is no evidence in the record that the commission ordered Dunn to place Cocca’s name on the reemployment list.

       The defendants also claim that the city consistently has applied the charter and rules in a manner identical to its treatment of Cocea whenever employees are laid off. That issue was not addressed by the trial court, and therefore is not properly before this court. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 33, 717 A.2d 77 (1998).


author: SHELDON, J.

text:
    R.S. SILVER ENTERPRISES, INC. v. HENRY PASCARELLA ET AL.
    (AC 34601)
    Sheldon, Keller and Flynn, Js.

      Argued October 24, 2013
    officially released February 25, 2014

      Wesley W. Horton, with whom were Steven D. Ecker and, on the brief, Kenneth J. Bartschi, Brendan J.

      O’Rourke and Daniel W. Moger, Jr., for the appellant (named defendant et al.).

      William F. Gallagher, with whom were Stephen P. Wright and, on the brief, HughD. Hughes, for the appel-lee (plaintiff).
   Opinion

SHELDON, J.

In this breach of contract action, the defendants, Henry Pascarella and Riversedge Partners, appeal from the judgment rendered by the trial court, Hon. Alfred J. Jennings, Jr., judge trial referee, following a court trial, in favor of the plaintiff, R.S. Silver Enterprises, Inc. On appeal, the defendants claim, inter alia, that the trial court, Downey, J., erred in striking certain of their special defenses. Specifically, the defendants challenge the trial court’s orders striking: their second special defense, in which they alleged that the plaintiff is barred from pursuing this action as a matter of public policy because reinstatement of the plaintiff as a corporation by the Secretary of the State in order to pursue this case was made possible only because of the plaintiffs defrauding of the Commissioner of Revenue Services; their fourth special defense, in which they alleged that the plaintiff is barred from pursuing this action as a matter of public policy because it engaged in bankruptcy fraud when it entered into the contract here at issue; their sixth special defense, in which they challenged the plaintiffs legal capacity to bring the instant action in 2006 on the ground that it was barred from obtaining reinstatement after 1994 pursuant to General Statutes § 33-995; and their twenty-first special defense, in which they alleged that before this action was commenced, the plaintiff had assigned to a nonparty its rights under the contract which it claimed the defendants had breached. The defendants also claim that the trial court’s judgment is “ineffective because it was issued 966 days after the completion of trial in violation of General Statutes § 51-183b.” We conclude that the allegations of the defendants’ twenty-first special defense state a claim which, if duly proven, would defeat the plaintiffs cause of action against them. More importantly, however, we conclude that proof of those allegations would establish that the plaintiff had no standing to bring this action, and thus that the trial court had no subject matter jurisdiction to entertain it. Accordingly, the trial court should have resolved the jurisdictional issue raised by the twenty-first special defense before reaching and deciding any other issues in this case. Because the jurisdictional issue was never decided in the trial court, and resolution of the issue requires findings of fact, we must remand this case to the trial court to resolve that issue before, if necessary, we decide any of the other issues before us on appeal.

The following facts and procedural history, ascertained from the pleadings, are relevant to the issue before us. On April 28, 1997, the plaintiff entered into a “participation agreement” with the defendants, under which the plaintiff invested $1,250,000 in a partnership formerly known as SPD Associates (SPD), and now known as Riversedge Partners, involving owning and managing a commercial building in Greenwich. Pursuant to that agreement, the plaintiff, in exchange for its investment, was given the contractual right to participate “in any increase in the economic value” and “future economic enhancement” of the building. More specifically, the agreement entitled the plaintiff to split equally all amounts received by the defendants in connection with the building after the making of certain priority payments.

On October 11, 2006, the plaintiff commenced this action, alleging that the defendants had failed to split with it any amounts they had received in connection with the building, and, in fact, had never paid the plaintiff anything pursuant to the agreement. The plaintiff also sought an accounting of the business and affairs of SPD and alleged breach of fiduciary duty. In response, the defendants filed an answer and twenty-two special defenses. On August 19, 2008, the plaintiff filed a motion to strike all but two of the defendants’ special defenses, in response to which the defendants filed an objection. On September 26, 2008, the plaintiff responded to the defendants’ objection by filing a reply memorandum of law. On September 29, 2008, Judge Downey orally granted the plaintiffs motion to strike several of the defendants’ special defenses, including the defendants’ second, fourth, sixth and twenty-first special defenses, which are the subject of the defendants’ appeal. In so doing, the court noted simply, without further explanation, that the special defenses it was striking “are either not recognized under Connecticut law or are not appropriately drafted such that they would survive a motion to strike.” The court then stated: “I adopt the foundation for my decision all the arguments advanced in [the plaintiffs] brief of August 19, [2008] and September 26, [2008].”

The case was then tried before Judge Jennings on various dates in early 2009. At the conclusion of trial, the defendants sought to withdraw their counterclaims, but the court, having determined that no good cause existed to permit the withdrawal, instead dismissed the counterclaims. The court ultimately rendered judgment in favor of the plaintiff on its breach of contract claim, awarding it damages in the amount of $1,782,848, plus prejudgment interest in the amount of $819,476, for a total award of $2,602,323. The court ruled in favor of the defendants on the plaintiffs claims for an accounting and for breach of fiduciary duty. The defendants appealed and the plaintiff filed a cross appeal from the court’s judgment on its breach of fiduciary duty claim. On April 17,2013, the plaintiff withdrew its cross appeal, leaving only the defendants’ appeal from the trial court’s judgment on the plaintiffs breach of contract claim for our consideration. Additional facts will be set forth as necessary.

We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. “Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling ... is plenary. . . . We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the [pleading] would support a [special defense], the motion to strike must be denied. . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. ... It is fundamental that in determining the sufficiency of a [pleading] challenged by a . . . motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006).

Practice Book § 10-50, which sets forth the basic parameters for special defenses, provides: “No facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiffs own.”

In their twenty-first special defense, the defendants alleged the occurrence of a transaction that purportedly resulted in the transfer of all of the plaintiffs rights under the participation agreement to a third party. Specifically, the defendants alleged that the plaintiff, formerly known as R.S. Silver & Co., Inc., transferred its rights to R.S. Silver & Co., LLC, a limited liability company formed by Robert S. Silver and two other individuals. “A valid assignment transfers to the assignee exclusive ownership of all of the assignor’s rights to the subject assigned and extinguishes all of those rights in the assignor.” (Internal quotation marks omitted.) Bozelko v. Milici, 139 Conn. App. 536, 539, 57 A.3d 762 (2012), cert. denied, 308 Conn. 914, 61 A.3d 1101 (2013). If proven, the facts set forth in the defendants’ twenty-first special defense would establish that the plaintiff had no right to sue the defendants for breach of the participation agreement. Because such allegations were not inconsistent with the allegations of the plaintiffs complaint, but, nevertheless, if proven, would have defeated the plaintiff’s claims against them, the trial court improperly struck that special defense.

Moreover, if the plaintiff assigned its rights and interests under the participation agreement to a third party, it would not have had a specific, personal and legal interest in this action, and thus would not have been sufficiently aggrieved by the defendants’ breach of contract to have standing to bring suit upon it. See id., 540. When an issue affecting the court’s subject matter jurisdiction comes to its attention, the court is obliged to decide that issue before taking one step further to adjudicate other matters pending before it in the action. See New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 611, 518-19, 970 A.2d 583 (2009). Here, because the defendants pleaded facts challenging the trial court’s subject matter jurisdiction, that jurisdictional issue should have been resolved by the trial court before proceeding any further on the merits of the plaintiffs claims. Where, as here, the jurisdictional issue cannot be decided without making factual determinations, the resolution of which is beyond our province, the trial court must resolve the jurisdictional issue before we can proceed one step further to resolve the other issues decided in the trial court that are before us on appeal.

The case is remanded for a determination of the jurisdictional issue raised by the defendants’ twenty-first special defense, as set forth herein. We retain jurisdiction over the case, however, in order to resolve, if necessary, the remaining claims presented in this appeal. Further proceedings on those issues, which have been fully briefed and argued, are stayed until such time as the jurisdictional issue is resolved.

In this opinion the other judges concurred.

       Although NLI Commercial Mortgage Fund, LLC, initially was a named defendant in this action, the plaintiff withdrew its claims against it on March 13, 2008.

       The trial court struck sixteen of the defendants’ special defenses, but the defendants challenge the order striking only four of them.

       The plaintiff also had alleged breach of a certain “Letter Agreement” of March 3, 1997, but the court dismissed that claim at the conclusion of the plaintiffs case.

       The defendants also filed counterclaims, which are not subject of this appeal.

       This court previously criticized Judge Downey’s practice of adopting a party’s reasoning as its own. See Gillon v. Bysiewicz, 105 Conn. App. 654, 657-58 n.6, 939 A.2d 605 (2008). In the present case, the plaintiff raised various arguments in seeking to strike each special defense; it did not make only one argument as to each special defense. In the absence of a motion to articulate, which the defendants never filed, we are left to speculate as to which, if just one or all, of the plaintiffs arguments the court relied upon in striking the special defenses. Because our review of the granting of a motion to strike is plenary, however, the defendants’ failure to seek an articulation, although unwise, is not fatal to their challenges to the court’s rulings.


author: BORDEN, J.

text:
    BRIAN O’TOOLE v. EYELETS FOR INDUSTRY, INC.
    (AC 24729)
    Gruendel, Keller and Borden, Js.

      Argued November 14, 2013
    officially released February 25, 2014

      Eric R. Brown, for the appellant (plaintiff).
   Opinion

BORDEN, J.

In this uncontested wrongful termination action, the plaintiff, Brian O’Toole, appeals from the trial court’s sua sponte dismissal of his complaint for lack of subject matter jurisdiction. The plaintiff claims that the trial court improperly dismissed his complaint because the court had (1) concurrent jurisdiction to decide his claim brought pursuant to 38 U.S.C. § 4301 et seq., and (2) subject matter jurisdiction to adjudicate his common-law claims of breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress. We agree with the plaintiff, and therefore reverse the judgment of the trial court.

On January 29, 2003, the plaintiff served a copy of the complaint against the defendant, Eyelets For Industry, Inc. The defendant did not appear, and the court subsequently granted the plaintiffs motion against the defendant for default for failure to appear. Following a hearing in damages to the court, the court sua sponte dismissed the action for lack of subject matter jurisdiction. The plaintiff filed a motion to reargue, which the court denied. This appeal followed.

A more detailed account of the relevant procedural history is as follows. The first count alleged that the plaintiff is a member of the United States National Guard and, accordingly, he performs “service in the uniformed services,” as defined in 38 U.S.C. § 4303 (13). The complaint further alleged that the plaintiff was employed by the defendant as a toolmaker until October, 2002, at which time his employment was terminated due to “lack of work.” The complaint alleged that the reason cited for the plaintiffs termination of employment was pretextual, and that, in actuality, the defendant unlawfully terminated the plaintiff due to his military status, in violation of 38 U.S.C. § 4301 et seq., the Uniformed Services Employment and Reemployment Rights Act of 1994 (act). The second count of the complaint alleged that the defendant’s unlawful termination of the plaintiffs employment constituted a breach of the covenant of good faith and fair dealing implied in the contractual employment relationship between the parties. The third count of the complaint alleged that the defendant’s discriminatory conduct constituted intentional infliction of emotional distress.

The defendant failed to respond in any way to the plaintiffs complaint. Consequently, the plaintiff filed a motion for default for failure to appear against the defendant. The court granted this motion, and the case proceeded to a hearing in damages before the court. Following the hearing in damages, however, the court dismissed the complaint sua sponte for lack of subject matter jurisdiction. The court’s memorandum of decision stated that the act “provides for a private right of action for damages against a private employer. 38 U.S.C. § 4323 (a) (2) (A). The statute restricts jurisdiction over actions by an employee against a private employer to the United States District Courts. 38 U.S.C. § 4323 (b) (3). The only jurisdiction a state court may exercise is in the case of an action against a state when the state is an employer accused of discrimination. 38 U.S.C. § 4323 (b) (2). Accordingly, the court finds that it lacks subject matter jurisdiction and sua sponte dismisses the action.” Subsequently, the plaintiff filed a motion to reargue in accordance with Practice Book § 11-11, which the court denied.

On appeal, the plaintiff claims that the court improperly dismissed his complaint because the act does not confer exclusive jurisdiction upon the federal courts. Accordingly, the plaintiff argues that the court had concurrent subject matter jurisdiction to adjudicate his claim under the act. Additionally, the plaintiff claims that even if the court lacked subject matter jurisdiction to adjudicate his claim under the act, it improperly dismissed the complaint with respect to counts two and three—breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress—because these are state common-law claims over which the court retained subject matter jurisdiction. We agree.

We begin by setting forth the standard of review for a motion to dismiss for lack of subject matter jurisdiction. “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. ... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013).

We first consider the plaintiffs claim that the court improperly dismissed his wrongful termination claim, brought pursuant to the act, a federal statute enacted in 1994. “[Theact] is the latest in a series of laws protecting veterans’ employment and reemployment rights going back to the Selective Training and Service Act of 1940. [The act’s] immediate predecessor was commonly referred to as the Veterans’ Reemployment Rights Act (VRRA), which was enacted . . . [in] 1974. In enacting [the act], Congress emphasized [its] continuity with the VRRA and its intention to clarify and strengthen that law. . . .” 20 C.F.R. § 1002.2. The act “protects individuals performing, or who performed, uniformed service in accordance with 38 U.S.C. [§ 4301 et seq.] from adverse employment discrimination on the basis of their uniformed service, and provides for their prompt restoration to civilian employment when they return to civilian life.” Presidential Memorandum, July 19, 2012, 77 Fed. Reg. 43,699 (July 25, 2012); see also 38 U.S.C. § 4301.

Under the act, a protected individual who suffers an adverse employment action (or the United States bringing the claim on behalf of such individual) has the right to sue his or her employer (private or state). The act’s enforcement provisions vary depending on who the parties are to the suit. The statute provides in relevant part: “(1) In the case of an action against a State (as an employer) or a private employer commenced by the United States, the district courts of the United States shall have jurisdiction over the action. (2) In the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State. (3) In the case of an action against a private employer by a person, the district courts of the United States shall have jurisdiction of the action." (Emphasis added.) 38 U.S.C. § 4323 (b). The plaintiffs claim was brought pursuant to the third provision.

Although the interpretation of the act’s enforcement provisions is an issue of first impression for our courts, our analysis is guided by an expansive body of case law establishing well settled principles for distinguishing between statutes that confer exclusive versus concurrent jurisdiction. “The general principle of state-court jurisdiction over cases arising under federal laws is straightforward: state courts may assume subject-matter jurisdiction over a federal cause of action absent provision by Congress to the contrary .... This rule is premised on the relation between the States and the National Government within our federal system. See The Federalist No. 82 (Hamilton). ... It is black letter law . . . that the mere grant of jurisdiction to a federal court does not operate to oust a state court from concurrent jurisdiction over the cause of action.” (Citations omitted; footnote omitted.) Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477-78, 101 S. Ct. 2870, 69 L. Ed. 2d 784 (1981). Thus, “[t]o give federal courts exclusive jurisdiction over a federal cause of action, Congress must, in an exercise of its powers under the Supremacy Clause, affirmatively divest state courts of their presumptively concurrent jurisdiction.” Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 823, 110 S. Ct. 1566, 108 L. Ed. 2d 834 (1990); see Burt v. Titlow, U.S. , 134 S. Ct. 10, 15, 187 L. Ed. 2d 348 (2013); Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Services, Ltd., 156 F.3d 432, 435 (2d Cir. 1998); State v. Sebastian, 243 Conn. 115, 140-41, 701 A.2d 13 (1997), cert. denied, 522 U.S. 1077, 118 S. Ct. 856, 139 L. Ed. 2d 756 (1998); Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 289-90, 439 A.2d 997 (1981). Exclusive federal jurisdiction can be created expressly or by implication. See Mims v. Arrow Financial Services, LLC, 565 U.S. 368, 378-79, 132 S. Ct. 740, 181 L. Ed. 2d 881 (2012); Stratford v. Bridgeport, 173 Conn. 303, 310-11, 377 A.2d 327 (1977).

In light of this precedent, we presume that state courts have concurrent jurisdiction to adjudicate claims brought pursuant to the act. The question becomes, then, whether Congress defeated this presumption by expressly or impliedly creating exclusive federal jurisdiction. To resolve this question, we must apply the principles of statutory interpretation. Ordinarily, our analysis would begin with the plain meaning rule, set forth in General Statutes § l-2z. Because the act is a federal statute, however, “principles of comity and consistency require us to follow the plain meaning rule for the interpretation of federal statutes because that is the rule of construction utilized by the United States Court of Appeals for the Second Circuit.” (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 401, 941 A.2d 868 (2008).

Before turning to the task of determining whether the act’s language is plain and unambiguous, however, we recognize that this act does not come to us unadorned by prior interpretation. In Tsang v. Kan, 173 F.2d 204 (9th Cir.), cert. denied, 337 U.S. 939, 69 S. Ct. 1515, 93 L. Ed. 1744 (1949), the United States Court of Appeals for the Ninth Circuit considered whether the defendant had the right to sue his private employer in a California state court after he was denied reinstatement to his employment position, in violation of the reemployment provisions of the Selective Training and Service Act of 1940 (STSA)—the original progenitor of the act. Under the enforcement provision of the STSA, “the district court of the United States for the district in which such private employer maintains a place of business shall have power ... to specifically require such employer to comply with [the statutory] provisions . . . .” (Emphasis added.) 60 U.S.C. § 308 (e) (1940). The court referred to the United States Supreme Court’s decision in Claflin v. Houseman, 93 U.S. 130, 23 L. Ed. 833 (1876), with respect to the principle that “[t]he mere giving of . . . jurisdiction to the federal courts does not thereby exclude that of the state courts.” Tsang v. Kan, supra, 205. Accordingly, the court concluded that state courts retain their concurrent jurisdiction under the STSA. Id., 206. Because the act is an extension of the STSA, and indeed, was enacted “to clarify and strengthen that law”; 20 C.F.R. § 1002.2; we regard this case as persuasive authority that the act does not confer exclusive federal jurisdiction.

We now return to an examination of the language of the act and its interpretation under the guidance of the United States Court of Appeals for the Second Circuit. “[W]e begin with the text of the statute to determine whether the language at issue has a plain and unambiguous meaning. ... A particular statute’s plain meaning can best be understood by looking to the statutory scheme as a whole and placing the particular provision within the context of that statute. . . . [W]e attempt to ascertain how a reasonable reader would understand the statutory text, considered as a whole. ... If we can ascertain the plain meaning of the statutory text by examining it in the context of the statute as a whole, we need proceed no further. If, however, the plain meaning is ambiguous, we may consult other sources. Extrinsic materials have a role in statutory interpretation ... to the extent they shed a rehable fight on the enacting Legislature’s understanding of otherwise ambiguous terms. . . . We turn to the legislative history only when the plain statutory language is ambiguous or would lead to an absurd result.” (Citations omitted; internal quotation marks omitted.) Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 108 (2d Cir. 2012).

We will consult the legislative history for two reasons. First, we conclude that the act is not plain and unambiguous. It does not expressly state that federal courts have exclusive jurisdiction. In Tafflin v. Levitt, 493 U.S. 456, 471, 110 S. Ct. 792, 107 L. Ed. 2d 887 (1990) (Scalia, J., concurring), Justice Scalia identified three phrases typically used by Congress to expressly confer exclusive federal jurisdiction: “In the standard fields of exclusive federal jurisdiction, the governing statutes specifically recite that suit may be brought only in federal court . . . that the jurisdiction of the federal courts shall be exclusive ... or indeed even that the jurisdiction of the federal courts shall be exclusive of the courts of the States . . . .” (Citations omitted; internal quotation marks omitted.) Id. (citing various federal statutes using this specific language to confer expressly exclusive federal jurisdiction). The act does not utilize any of this paradigmatic language, but instead, states that “the district courts of the United States shall have jurisdiction of the action.” 38 U.S.C. § 4323 (b) (3). Accordingly, the statute does not plainly and unambiguously confer exclusive federal jurisdiction.

Second, reading the act as a whole, a reasonable reader would find that the plain statutory language yields an absurd result. For instance, as to those claims brought pursuant to 38 U.S.C. § 4323 (b) (1) and (3), the statute provides that “the district courts of the United States shall have jurisdiction . . . .’’(Emphasis added.) By contrast, pursuant to 38 U.S.C. § 4323 (b) (2), claims brought by an individual against a state employer “may be brought in a, State court of competent jurisdiction in accordance with the laws of the State.” (Emphasis added.) Generally, “when the same [statute] uses both may and shall, the normal inference is that each is used in its usual sense—the one act being permissive, the other mandatory.” (Internal quotation marks omitted.) Weinstein v. Albright, 261 F.3d 127, 137 (2d Cir. 2001); see also Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 346, 125 S. Ct. 694, 160 L. Ed. 2d 708 (2005). If this “normal inference” were applicable to the act, then 38 U.S.C. § 4323 (b) (3) would effectively confer exclusive federal jurisdiction because the word “shall” would require aggrieved parties to bring suit in federal court.

Here, however, this inference leads to an absurd result. Specifically, reading the word “may” in 38 U.S.C. § 4323 (b) (2) as permitting an aggrieved individual to sue a state employer in either state or federal court would violate the doctrine of sovereign immunity set forth in the eleventh amendment to the United States constitution. See U.S. Const., amend. XI. This doctrine limits judicial authority under article three of the United States constitution and, accordingly, bars an individual from suing a state in federal court on grounds not set forth within the fourteenth amendment to the United States constitution. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 59-72, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996). Thus, as a matter of law, the word “may” in 38 U.S.C. § 4323 (b) (2) of the act is not a permissive term, thereby defeating the normal inference that when “may” and “shall” appear in the same statute, the former is permissive and the latter mandatory. We thus examine the act’s legislative history to illuminate the meaning of 38 U.S.C. § 4323 (b) (3).

The legislative history of the act demonstrates that Congress did not intend to confer exclusive federal jurisdiction. The act was amended in 1998 to respond to concerns that it violated the doctrine of sovereign immunity, in light of the United States Supreme Court’s decision in Seminole Tribe of Florida v. Florida, supra, 517 U.S. 44. See Townsend v. University of Alaska, 543 F.3d 478, 482-84 (9th Cir. 2008) (discussing legislative history of the act amendments of 1998), cert. denied, 556 U.S. 1166, 129 S. Ct. 1907, 173 L. Ed. 2d 1058 (2009); H.R. 3213, 105th Cong. (1998). In the United States House of Representatives, Representative Jack Quinn stated that “ [t]his bill would substitute the United States for an individual veteran as the plaintiff in enforcement actions in cases where the Attorney General believes that a State has not complied with [the act]. . . . Individuals not represented by the Attorney General would be able to bring enforcement actions in State court.” (Emphasis added.) 144 Cong. Rec. at H1398 (1998). He further stated, “[i]n summary ... we are looking at State employees to be granted the same rights under [the act] as any other veteran or member of the Guard and Reserve who works in the private sector or the Federal Government.” (Emphasis added.) Id. Because Congress expressly stated that state employees have the right to sue their employers in state court, and that the intent of the 1998 amendments was to grant state employees the same rights as employees in the private sector, it follows that employees have the right to sue their private employers in state court under the act.

Our conclusion is also consistent with the United States Supreme Court’s policy that the STSA “is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need.” Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S. Ct. 1105, 90 L. Ed. 1230 (1946). The Supreme Court further stated that courts must “construe the separate provisions of the [STSA] as parts of an organic whole and give each as liberal a construction for the benefit of the veteran as a harmonious interplay of the separate provisions permits.” Id.; see also Feore v. North Shore Bus Co., 161 F.2d 562, 553-54 (2d Cir. 1947) (STSA must be liberally construed “to effectuate the congressional purpose of insuring that the returning veteran be not penalized employmentwise because of his military service”). This policy of liberal construction is applicable to the act, to the extent that, in enacting the act, “Congress . . . emphasized that Federal laws protecting veterans’ employment and reemployment rights for the past fifty years had been successful and that the large body of case law that had developed under those statutes remained in full force and effect, to the extent it is consistent with [the act].” 20 C.F.R. § 1002.2. It follows, then, that in light of prior case law broadly interpreting the STSA as conferring concurrent jurisdiction, such as Tsang v. Kan, supra, 173 F.2d 206, the act must also be construed liberally to permit concurrent jurisdiction.

Finally, the court also improperly dismissed the plaintiffs second and third counts. They are simply state common-law claims over which our courts have long exercised subject matter jurisdiction.

The judgment is reversed and the case is remanded for a new hearing in damages and for further proceedings according to law.

In this opinion the other judges concurred.