Michael L. Luzzi et al. v. Town of Hamden (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 122

FACTS

On July 3, 2007, the plaintiffs, L. Michael Luzzi, Thomas Brown, John Mendes, James Zarro, Michael Modena, Robert Kazden, Kenneth Copeland and John J. McCormack, filed a twenty-three-count complaint against the defendant, Town of Hamden.   In counts one through eight, each plaintiff alleges breach of contract.   In counts nine through sixteen, each plaintiff alleges unjust enrichment.   In counts seventeen through twenty-three, each plaintiff except Modena alleges negligent misrepresentation.

As to the breach of contract claim, the plaintiffs allege that they were all employed by the defendant until 2005 or 2006, when they retired.   At the time of their retirement, the plaintiffs were working under a collective bargaining agreement (first agreement) that had expired on June 30, 2003.   A subsequent amendment or alteration of the expired contract was ratified by the legislative council after the plaintiffs' retirement on October 3, 2006 which granted retroactive wages, vacation and sick days, and pension benefits to employees who were employed from July 1, 2003 to June 30, 2007 (second agreement).

The plaintiffs allege that the defendant is liable for breach of contract in that it failed to provide the retroactive wages and benefits pursuant to the first agreement and its subsequent alteration and/or amendment.   In the alternative, the plaintiffs allege that the defendant received benefits from the plaintiffs in their continued service, but that the defendant unjustly failed to compensate the plaintiffs in that it failed to provide retroactive wages and benefits.   The plaintiffs also allege that prior to their retirement, the defendants through their agents, servants and/or employees made untrue statements to the plaintiffs that they would receive retroactive wages and benefits after the new collective bargaining agreement was ratified.   As a result of the representations by the defendant, the plaintiffs were induced to enter into retirement and suffered pecuniary losses when they failed to received their retroactive wages and benefits.

On August 12, 2010, the defendant filed a motion for summary judgment on the ground that there was no genuine question of material fact that:  1) the first agreement was in effect at the time of the plaintiffs' retirements;  2) the collective bargaining agreement in effect at the time of retirement controls retiree benefits;  3) the plaintiffs were not parties to the second agreement;  4) the language in the second agreement renders it inapplicable to retirees;  5) Zarro's retirement was governed by a separate written agreement which did not contain any provisions entitling him to retroactive wages and benefits;  6) the plaintiffs' claims for unjust enrichment and negligent misrepresentation are barred as a matter of law;  7) the Fennell doctrine prohibits recovery for unjust enrichment and negligent misrepresentation based on oral representations or treatments of other employees;  and 8) Modena's claims for unjust enrichment and negligent misrepresentation fail because there was no representation or detrimental reliance.   In support of its motion, the defendant attached a memorandum of law and submitted the following relevant evidence:  1) the first agreement;  2) the second agreement;  3) an October 5, 2006 letter to Mayor Henrici from the Clerk of the Hamden Legislative Council;  4) portions of certified copies of depositions of Zarro, Luzzi, McCormack, Kazden, Brown, Copeland, Mendes, and Modena;  5) portions of the Hamden Charter;  and 6) the agreement between Hamden and Local 818 regarding Zarro.

On September 30, 2010, the plaintiffs filed an objection to the motion for summary judgment.   In support of their objection, the plaintiffs filed a memorandum of law and submitted as evidence:  1) the first agreement 2) the second agreement;  3) portions of a certified copy of the depositions of Victor Binkoski, former personnel director for the Town of Hamden;  and 4) the agreement between Hamden and Local 818 regarding Zarro.   The defendant filed a reply on November 10, 2010.   The matter was heard at short calendar on November 22, 2010.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.”  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 554, 985 A.2d 1042 (2010).

“On a motion by [the] defendant for summary judgment, the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ․ Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.”  (Internal quotation marks omitted.)  Vitale v. Kowal, 101 Conn.App. 691, 696-97, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).  “Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case.”  (Internal quotation marks omitted.)  Doty v. Shawmut Bank, 58 Conn.App. 427, 431, 755 A.2d 219 (2000).

As to the breach of contract claim, the defendant argues that as a matter of law, the first agreement governs the retirement of the plaintiffs, and the language of the second agreement as well as the relationship of the plaintiffs to the defendant renders it inapplicable to the plaintiffs as retirees.   Moreover, statutory, legal and administrative precedent preclude the plaintiffs from claiming that they are parties to the second agreement, and Zarro retired under a separate agreement which “did not contain any provision entitling him to retroactive wages based on future settlements of the collective bargaining agreement.”

As to the unjust enrichment and negligent misrepresentation claims, the defendant asserts that they are barred as a matter of law where there is an express contract between the parties, the Fennell doctrine precludes the plaintiffs from recovering, and Modena cannot recover because he admitted that there was no detrimental reliance or representation.

The plaintiffs counter that the law requiring the terms of an expired agreement to remain in effect until such time as a new contract is approved “cannot be interpreted to mean that if an employee retires between contracts with a municipality, he should not receive retroactive wages specifically identified for periods of time he was still an employee of said municipality.”   Moreover, the issue has not been litigated in favor of the defendant and the defendant's past practice is to provide retroactive wages and benefits.   The plaintiffs maintain that Zarro “did not give up all benefits provided in his union contract” when he retired under a separate written agreement negotiated by the union.   The plaintiffs also maintain that they would have no cause of action for unjust enrichment if the court finds that the retroactive benefits provided in the second agreement apply to them.

In response, the defendant claims that it cannot be held liable for past practices because benefits for retirees are not a mandatory bargaining subject, and, therefore, the defendant could unilaterally change past practices without first negotiating with the union.   Moreover, they claim that if the plaintiffs are former employees, they have failed to exhaust their contractual remedies.

I. JURISDICTIONAL ISSUES

A. Exhaustion of Administrative Remedies

As a threshold matter, the defendant argues that “because the [p]laintiffs contend that they are ‘employees' and are therefore entitled to the retroactive wages, then the [p]laintiffs are legally required to exhaust their contractual remedies in the collective bargaining agreement.”  “The doctrine of exhaustion [of administrative remedies] is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions.   To allow a party seeking [a monetary judgment] to bypass the entire process ․ would be to interject an unnecessary and potentially confusing element into an otherwise well-defined area of the law.”  (Internal quotation marks omitted.)   Sampietro v. Board of Fire Commissioners, 200 Conn. 38, 43, 509 A.2d 28 (1986).  “Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum ․ In the absence of exhaustion of that remedy, the action must be dismissed.”  (Citation omitted.)  Drumm v. Brown, 245 Conn. 657, 676, 716 A.2d 50 (1998).

The Connecticut Supreme Court, however, has found that exhaustion of administrative remedies is not required of employees whose grievances do not arise until after they have retired.  Garcia v. Hartford, 292 Conn. 334, 336-7, 972 A.2d 706 (2009).   In that case, the court found that the provisions of the grievance procedure did not apply to the plaintiff.  Id., 342.   At the time that he brought his claim, the plaintiff had retired.   The language in the grievance procedure section, and throughout the collective bargaining agreement, indicated that retirees were not covered as employees who were required to exhaust the administrative remedies.  Id., 342-6.

The present case is analogous to Garcia.   The plaintiffs were retirees at the time that their grievance arose, and as such, were no longer members of the bargaining unit.   Furthermore, Article 20 of both the first and second agreement use language to indicate that current employees at the time of the grievance are the only ones required to use the grievance procedure to settle a dispute.   Moreover, as was pointed out by both parties, Town of Hamden, Decision No. 4343 (2008), and Locals 2863, 3042, 1303-05, Council 4, AFSCME, AFL-CIO v. Hamden, Superior Court, judicial district of Hartford, Docket No. CV 08 4019054 (November 9, 2009, Cohn, J.) [48 Conn. L. Rptr. 829], noted that the Connecticut State Board of Labor Relations (SBLR) has no jurisdiction over the claims by retirees.   This authority, along with Garcia, show that the plaintiffs are not required to exhaust any administrative remedies before they are able to bring suit.

B. Collateral Estoppel

As a second threshold matter, the defendant argues that the plaintiffs are collaterally estopped from bringing this cause of action.  “Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit ․ Collateral estoppel express[es] no more that the fundamental principle that once a matter had been fully and fairly litigated, and finally decided, it comes to rest.”  (Internal quotation marks omitted.)  Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 58, 808 A.2d 1107 (2002).  “[A] valid and final adjudicative determination by an administrative tribunal has the same effect under the rules of [collateral estoppel], subject to the same exceptions and qualifications, as a judgment of a court.”  (Internal quotation marks omitted.)  New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals and Health Care, 226 Conn. 105, 129, 627 A.2d 1257 (1993).

“Res judicata and collateral estoppel operate only against “the same parties [to the prior action] or those in privity with them ․” Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 813, 695 A.2d 1010 (1997).  “Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts.   Rather, it is, in essence, a shorthand statement for the principle that collateral estoppel should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion.”  Id., 814.

In the present case, the administrative and judicial adjudications to which the defendant points to in support of its position that the plaintiffs are barred by collateral estoppel are Town of Hamden, supra, Decision No. 4343 and Locals 2863, 3042, 1303-05, Council 4, AFSCME, AFL-CIO v. Hamden, supra, Docket No. CV 08 4019054.   Locals 2863, 3042, 1303-05, Council 4, AFSCME, AFL-CIO found that the SBLR did not act illegally or in abuse of its discretion in granting Hamden's motion to dismiss on the grounds that the SBLR did not have any jurisdiction to hear the case because it involved an issue with non-employees.

The defendant's argument fails for several reasons.   First, the issue litigated in the SBLR decision was a jurisdictional one, a determination of whether the board had jurisdiction to hear a grievance brought by the union on behalf of employees who were retired at the time of the grievance.   Its holding to that issue was that retired employees could not be represented by the union because at the time of the grievance, they were no longer members of the bargaining unit.  Town of Hamden, supra, Board Decision No. 4343 (2008).   Second, the parties in those decisions were the unions themselves, not the employees who alleged that they should have received retroactive wages and benefits.   Third, even if the court could hold that the retirees were parties to the actions, neither Local 818, the plaintiffs' former bargaining unit, nor the plaintiffs themselves were parties in those cases.   Moreover, the SBLR decision held that the sole remedy for those who had already retired at the time of their grievance was to bring an action for breach of contract in Superior Court.   Because the issue before the court today was not decided on the merits and the plaintiffs were not parties to the previous action, the defendant's claim of collateral estoppel fails.

II. COUNTS ONE THROUGH EIGHT:  BREACH OF CONTRACT CLAIM

A. When Second Agreement Goes Into Effect

The defendant argues that, as a matter of law, the first agreement is the sole contract that controls the retirement benefits of the plaintiffs.   It points to General Statutes § 7-475, which provides in relevant part:  “In the event an agreement expires before a new agreement has been approved by the municipal employer and the employee organization, the terms of the expired agreement shall remain in effect until such time as a new agreement is reached and approved in accordance with Section 7-474.”   Other statutory provisions, specifically General Statutes § 7-474(e), also govern when a collective bargaining agreement is effective.  Section 7-474(e) provides in relevant part:  “An agreement between a municipal employer and an employee organization shall be valid and in force under its terms when entered into in accordance with the provisions of Sections 7-467 to 4-477, inclusive, and signed by the chief executive officer or administrator as a ministerial act.   Such terms may make any such agreement effective on a date prior to the date on which the such agreement is entered.”

Read together, the statutes indicate that until a new agreement is ratified, the expired agreement is the operative one.   Once the new agreement becomes effective, however, if the effective date of new agreement predates its ratification date, the terms of the new agreement replace the terms of the older expired agreement as of the effective date of the new agreement.   The new agreement retroactively alters the terms of the expired agreement, even though the events have already occurred.   Indeed, such a result is contemplated when agreements provide retroactive wages and benefits back to the effective date of the agreement to demonstrate that the subsequent agreement is the operative one for those dates.

In the present case, the first agreement was effective until June 30, 2003.   As of that date, a new agreement had not been ratified.   Pursuant to § 7-475, the terms of the first agreement remained operative.   The second agreement, ratified by the legislative council on October 3, 2006, had an effective date starting on July 1, 2003, pursuant to § 7-474(e).   Though the second agreement only became official on October 3, 2006, on that date its provisions retroactively replaced the provisions from the expired contract beginning on July 1, 2003.   While the defendant correctly points out that at the time of their retirements, the plaintiffs retired under the expired agreement, if they are covered by the second agreement, nothing in the statute prevents the subsequent agreement from altering the terms of the expired agreement, including the benefits that the plaintiffs would have received upon retirement.

Moreover, the cases which the defendant cites to support its position are distinguishable as they dealt with employees who retired under unexpired contracts.   In Duglenski v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 04 0183615 (October 5, 2005, Brunetti, J.) [40 Conn. L. Rptr. 93], the issue was whether the amount of pension that the plaintiff received was controlled by the agreement in effect when he was available to receive a pension or the one in effect when he actually retired.   In Scandura v. Middletown, Superior Court, judicial district of Middlesex, Docket No. CV 01 0094798 (February 27, 2003, Aurigemma, J.) [34 Conn. L. Rptr. 202], the main issue was whether the terms of the contract in effect at the time of the plaintiff's retirement continued once a new contract was ratified.   In both cases, the plaintiffs were seeking to enforce terms of a contract whose effective dates were not those during which they had retired.   The court found in both cases that the terms that applied to their retirements were under the unexpired contracts under which they retired.   Not only do the cases not speak to whether a subsequent agreement that replaces an expired agreement in effect can be used to calculate benefits, they do not reach the issue of working or retiring under expired agreements at all.   In Scandura, the plaintiff's argument that expired contracts had no effect dealt not with a contract under which employees were working after the effective date, but with the idea, ultimately rejected in Poole v. Waterbury, 266 Conn. 68, 831 A.2d 211 (2003), that a retiree's benefits cannot continue beyond the expiration of the agreement.

B. Who the Second Agreement Covers

Having determined when the terms of the second agreement were effective, it is necessary to determine whether there is a question of material fact that the plaintiffs are not governed by the agreement.   The defendant argues that the language of the second agreement is unambiguous in that it does not apply to the plaintiffs because they were retirees and not employees at the time of ratification.   The “[p]rinciples of contract law guide our interpretation of collective bargaining agreements.”  Honulik v. Greenwich, 293 Conn. 698, 710, 980 A.2d 880 (2009).  “A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ․ [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ․ the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract ․ Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.   A court will not torture words to import ambiguity ․ Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms.”  (Citation omitted;  internal quotation marks omitted.)  Niehaus v. Cowles Business Media, Inc., 263 Conn. 178, 188-9, 819 A.2d 765 (2003).

“[T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.”  (Internal quotation marks omitted.)  United Illuminating Co. v. Wisvest- Connecticut, LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002).  “If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.”  Id., 671.  “When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract ․ Extrinsic evidence is always admissible, however, ‘to explain an ambiguity appearing in the instrument.’  “ (Citation omitted;  internal quotation marks omitted.)  Poole v. Waterbury, supra, 266 Conn. 89.

One such tool of construction used to interpret an ambiguous contract is past practice.  Honulik v. Greenwich, supra, 293 Conn. 717.  “[A] past practice must be clearly enunciated and consistent, endure over a reasonable length of time, and be an accepted practice by both parties.”  (Internal quotation marks omitted.)   Id., 719 n.33. The incorporation of past practices, however, would be improper if it attempted to “enlarge the scope of the agreement.”  Id., 716.

The crux of the dispute is whether the language in the second agreement is clear as to whether the agreement covers those who were employed during the effective dates of the agreement, but had retired prior to its ratification.   The defendant points to Article 7.1 which states that “[a]ll employees covered hereunder shall receive wages as provided on the attached wage schedules.”   Other provisions in the agreement use similar language.   Article 1.2 recognizes Local 818 “as the sole and exclusive bargaining agent with respect to wages, hours, and all other conditions of employment for all employees covered by this Agreement.”   The agreement makes numerous references to “employees covered by this agreement” and “employees covered hereunder” in Articles 5.1, 6.1, 25.1, 26.1, and 31.1.

Nowhere in the agreement, however, is the phrase “employees covered hereunder” defined.  General Statutes § 4-467(2) defines an employee as “any employee of a municipal employer, whether or not in the classified service of the municipal employer ․” The American Heritage Dictionary defines an employee as “a person who works for another in return for financial or other compensation.”   These definitions, while confirming that the plaintiffs were employees during the effective date of the second agreement, nevertheless, fail to address whether they were intended to be covered by the agreement.   The only provision in the agreement that defines a current employee is in Article 28.4 which states that “[u]pon retirement, current employees (on the payroll as of June 30, 1999) will not be required to contribute to retiree medical insurance.”   The 1999 may be a scrivener's error as the exact same sentence appears in the first agreement, which is effective from July 1, 1999 until June 30, 2003.   Nevertheless, even if the parties intended the year to be 2003, the language of the article appears to include those who are actively employed at the effective date of the agreement and who retire during that contract.

Because the definition of a current employee is noted only in the section regarding health insurance benefits, it is unclear whether it applies to the entire contract or only to that specific section.   The language of the contract leads the court to two reasonable interpretations, creating an ambiguity.   United Illuminating Co. v. Wisvest-Connecticut, LLC, supra, 259 Conn. 671.   In addition, the deposition testimony of former personnel director for the town of Hamden, Victor Binkowski, indicated that it was standard practice to provide retroactive wages to those who retired during an expired contract.   The plaintiffs also stated during their depositions that the current personnel director, Ken Kelly, indicated that it was the practice of the defendant to provide retroactive wages and benefits for retirees when a new contract was ratified.¹  Looking at the evidence in the light most favorable to the plaintiffs, Binkoski's deposition testimony, the plaintiffs' deposition testimony and the ambiguity of the contract language is sufficient to raise a question of fact as to whether the plaintiffs were covered under the terms of the second agreement.   Therefore, the defendant's motion as to the breach of contract claims, counts one through three and counts five through eight is denied.

C. Zarro's Breach of Contract Claim

The defendant argues as to Zarro that he retired under a separate agreement which made no mention of the second agreement.   The defendant has failed to meet its burden of proof, as it has provided the court with no case law to support its assertions.   Moreover, the written agreement, which refers to “the parties' collective bargaining agreement” is insufficient to support the defendant's position as it fails to shed any light on the ambiguities of the document itself, as discussed above.   Therefore, the motion is denied with respect to Zarro's breach of contract claim, count four.

III. UNJUST ENRICHMENT

“[A] claim for unjust enrichment has broad dimensions.   Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract ․ A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another ․ With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard ․ Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy ․ Recovery [under unjust enrichment] is proper if the defendant was benefited, the defendant did not pay for the benefit and the failure of payment operated to the detriment of the plaintiff.”  (Citations omitted;  internal quotation marks omitted.)  Rent-A-PC, Inc. v. Rental Management, Inc., 96 Conn.App. 600, 604-5, 901 A.2d 720 (2006).  “Although the ‘lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment’ ․ the existence of a contract, in itself, does not preclude equitable relief which is not inconsistent with the contract.”  (Citations omitted;  internal quotation marks omitted.)  Id., 605-6.

There are limitations to the unjust enrichment doctrine as it relates to municipalities.   The Connecticut Supreme Court in Fennell v. Hartford, 238 Conn. 809, 816, 681 A.2d 934 (1996), held that employees cannot bring implied contract claims against municipal employers based on written representations by agents of the municipality.   The court noted that “a city's charter is the fountainhead of municipal powers ․ The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised ․ Agents of a city ․ have no source of authority beyond the charter.”   (Internal quotation marks omitted.)  Id., 813.   The court went on further to state that “[t]he officer, body or board duly authorized must act [on] behalf of the municipality, otherwise a valid contract cannot be created.   Generally, no officer or board, other than the common council, has power to bind the municipal corporation by contract, unless duly empowered by statute, the charter, or authority conferred by the common council, where the latter may so delegate its powers ․ It follows that agents of a city, including its commissions, have no source of authority beyond the charter.  [T]heir powers are measured and limited by the express language in which authority is given or by the implication necessary to enable them to perform some duty cast upon them by express language ․ [A]ll who contract with a municipal corporation are charged with notice of the extent of ․ the powers of municipal officers and agents with whom they contract, and hence it follows that if the ․ agent had in fact no power to bind the municipality, there is no liability on the express contract ․ Thus, every person who deals with [a municipal corporation] is bound to know the extent of its authority and the limitations of its powers.”   (Citations omitted;  internal quotation marks omitted.)  Id., 813-4.

The court declined to recognize implied contract claims against municipalities because they recognized that “[c]ourts have consistently refused to give effect to government-fostered expectations that, had they arisen in the private sector, may well have formed the basis for a contract or an estoppel ․ We believe that implied contract claims in the public sector ․' would only invite endless litigation over both real and imagined claims of misinformation by disgruntled ․ [employees], imposing an unpredictable drain on the public fisc ․ Absent a clear legislative indication, we are loathe to attribute an intent to the legislature to draw down the public fisc in favor of those with no substantive entitlement thereto.'  “ (Citations omitted;  internal quotation marks omitted.)  Id., 816.

The Connecticut Appellate Court in Biello v. Watertown, 109 Conn.App. 572, 583, 953 A.2d 656, cert. denied, 289 Conn. 934, 958 A.2d 1244 (2008), affirmed and extended the reasoning in Fennell to oral representations made by agents of a municipality.   Thus, municipalities cannot be held liable for an implied contract claim, such as unjust enrichment, based on the written or oral representations of an agent of the municipality.

In the present case, the plaintiffs assert that the current personnel director, Ken Kelly, made representations to several of them that they would receive retroactive wages and benefits once a new contract was in place.   Several other plaintiffs contend that the former mayors Amento and Henrici made representations that they would receive retroactive wages and benefits, as well.   Based on the reasoning in Fennell and Biello, however, those claims cannot stand.   As agents of the town, neither Kelly nor the former mayors had any power to bind the defendant with those representations.   Section 3-5 of the Hamden Charter provides that “the [Legislative] Council is declared to be the body having power to make annual appropriations for the municipality.”   Section 18-8(D) provides that “[t]he several departments, commissions, offices and boards of the Town, including the Board of Education, shall not involve the Town in any obligation to spend money for any purpose in excess of the amount appropriated therefor until the matter has been approved and voted by the [Legislative] Council.”   Nothing in the Charter delegates fiscal decisions to the personnel director or mayor, thus the town cannot be bound by their representations.   Therefore, the motion as to the unjust enrichment claims, counts nine through sixteen is granted.

IV. COUNTS SEVENTEEN THROUGH TWENTY-THREE:  NEGLIGENT MISREPRESENTATION 2

“The governing principles [of negligent misrepresentation] are set forth in ․ 552 of the Restatement Second of Torts [ (1977) ]:  ‘One who, in the course of his business, profession, or employment ․ supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.’  “ (Internal quotation marks omitted.)  D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217-18, 520 A.2d 217 (1987).   The courts have long recognized that “even an innocent misrepresentation of fact ‘may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth.’  “ (Internal quotation marks omitted.)  Id., 217.   Thus, a plaintiff “need not prove that the representations made by the [defendant] were promissory ․ [merely] that the representations contained false information.”  Id., 218.   While legislative bodies necessarily reserve to themselves the implicit power to change their minds in the future ․ [it] is not, however, free to misrepresent its present intention.   When it makes representations concerning present intentions ․ it must do so in the exercise of due care.”   Bassetti v. East Haven Board of Education, Superior Court, judicial district of New Haven, Docket No. 410872 (June 19, 2001, Blue, J.).

In the present case, the defendant argues that the Fennell doctrine also applies to the plaintiffs' unjust enrichment claims.   Since the allegations by the plaintiffs for the tort of negligent misrepresentation do not maintain that the representations were promissory, the reasoning in Fennell and Biello do not apply.   The defendant has provided none and the court has found no case law to suggest that those holdings, which deal solely with implied contract claims, should be extended to a tort context, and it declines to do so now.   Because the defendant has presented no evidence that the Fennell doctrine applies to claims of negligent misrepresentation, the defendant has failed to meet its burden and that the motion as to the negligent misrepresentation claims, counts seventeen through twenty-three, is denied.

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is denied as to the breach of contract claims, count one through eight and the negligent misrepresentation claims, counts seventeen through twenty-three.   However, the motion is granted as to the unjust enrichment claims, counts nine through sixteen.

BY THE COURT

Richard E. Burke, Judge

FOOTNOTES

FN1. The plaintiffs argue that they have not completed discovery and that the motion should be denied on that ground.   The plaintiffs, however, have failed to properly raise the issue.  Practice Book § 17-47 requires that an affidavit from the party opposing the motion be submitted that states the reasons why that party cannot present the facts necessary to justify opposition.   Only then may the court “deny the motion for judgment or ․ order a continuance to permit affidavits to be obtained or discovery to be had or ․ make such other order as is just.”   The court, therefore, will not consider the plaintiff's argument..  FN1. The plaintiffs argue that they have not completed discovery and that the motion should be denied on that ground.   The plaintiffs, however, have failed to properly raise the issue.  Practice Book § 17-47 requires that an affidavit from the party opposing the motion be submitted that states the reasons why that party cannot present the facts necessary to justify opposition.   Only then may the court “deny the motion for judgment or ․ order a continuance to permit affidavits to be obtained or discovery to be had or ․ make such other order as is just.”   The court, therefore, will not consider the plaintiff's argument.

FN2. The defendant argues that Modena's claim for negligent misrepresentation should fail.   In the complaint, however, Modena does not allege a claim for negligent misrepresentation.   The court will not address this argument..  FN2. The defendant argues that Modena's claim for negligent misrepresentation should fail.   In the complaint, however, Modena does not allege a claim for negligent misrepresentation.   The court will not address this argument.

Burke, Richard E., J.