Josephine Miller v. Bridgeport Board of Education (2011)

MEMORANDUM OF DECISION

The plaintiff in this matter has filed a motion for summary judgment.   On August 31, 2010, the plaintiff, Josephine Miller, filed a two-count complaint against the defendant, Bridgeport Board of Education.   In counts one and two, respectively, the plaintiff seeks recovery based on the equitable doctrines of quantum meruit and unjust enrichment.   Both counts allege the following facts.

On September 11, 2006, Andrew Cimmino was sued in federal court.¹  His attorney in the federal lawsuit was paid for by the defendant in accordance with its “obligation” under General Statutes § 7–101a.²  On February 12, 2010, Cimmino requested the plaintiff to enter an appearance for him “in lieu of the appearance of Cimmino's prior attorney.”   The plaintiff proceeded to represent Cimmino in the federal lawsuit.   Thereafter, the plaintiff submitted invoices to the defendant for remuneration on March 31, 2010, April 30, 2010 and May 31, 2010.   The defendant, however, refused to pay the plaintiff for her services.   The plaintiff alleges that she has been damaged and, accordingly, she seeks compensatory damages and double damages under General Statutes 52–568.³

On September 27, 2010, the plaintiff moved for summary judgment on the ground that there are no genuine issues of material fact as to whether (1) the defendant “was required to provide a defense” for Cimmino in the federal lawsuit;  (2) the plaintiff performed legal services for Cimmino in that lawsuit;  (3) the plaintiff's services were reasonable and appropriate;  and (4) the defendant failed to compensate the plaintiff for the work performed;  and therefore, the plaintiff is entitled to judgment as a matter of law.   The plaintiff submitted a memorandum of law in support of the motion, her own affidavit, the affidavit of Cimmino and various exhibits.

On November 26, 2010, the defendant filed an answer and special defenses admitting that (1) the defendant compensated “the lawyer that was approved by the Bridgeport City Attorney to defend Mr. Cimmino”;  (2) the plaintiff “submitted certain invoices” to the defendant seeking compensation for legal services;  and (3) the defendant has refused to pay the plaintiff.   The defendant's first special defense asserts the doctrine of unclean hands and alleges that the plaintiff unilaterally filed an appearance on behalf of Cimmino in the federal lawsuit “without the City Attorney's approval or authorization and in violation of clearly established law.”   The defendant's second special defense alleges the same facts and asserts that the plaintiff's representation of Cimmino was “illegal.”

On the same day, the defendant also filed a memorandum of law in opposition to the motion for summary judgment and an affidavit of Mark Anastasi, the Bridgeport city attorney.   On January 4, 2011, the plaintiff filed a reply denying the facts alleged in the defendant's special defenses.

“In any action, except administrative appeals ․ any party may move for a summary judgment at anytime ․” Practice Book § 17–44.  “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 material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law ․ Because the burden of proof is on the movant, the trial court must view the evidence in the light most favorable to the nonmoving party ․ In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist ․ 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 ․ [O]nce the moving party has met its burden [of production] ․ the opposing party [to survive summary judgment] must present evidence that demonstrates the existence of some disputed factual issue.”   (Citations omitted;  internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365–66, 2 A.3d 902 (2010).

In her trial memoranda, the plaintiff argues that (1) the defendant is obligated under § 7–101a to “provide a defense” for Cimmino in the federal lawsuit;  (2) the defendant permitted Cimmino to choose the attorney who represented him prior to the plaintiff;  (3) Cimmino notified the defendant around January 2010 that he had “selected” the plaintiff to defend him in the federal action;  (4) the plaintiff lawfully assumed Cimmino's defense and provided appropriate legal services;  and (5) even if the plaintiff was “prohibited” from representing Cimmino, the defendant knew about her representation and could not equitably allow her to perform valuable services without notifying her of the prohibition.   The plaintiff claims that she is therefore entitled to judgment as a matter of law on her claims of quantum meruit and unjust enrichment.

The defendant counters that “genuine issues of material fact exist regarding the plaintiff's claims.”   Specifically, the defendant contends that because it never authorized the plaintiff to represent Cimmino in the federal lawsuit, the plaintiff violated chapter 7, § 4 of the Bridgeport city charter ⁴ and chapter 2.10.010 of the Bridgeport municipal code.⁵  The defendant also argues on public policy grounds that, in cases such as the one at present, private attorneys cannot be permitted to represent municipal employees without municipal authorization because, given § 7–101a, such activities would deplete the public fisc.   Accordingly, the defendant maintains that the plaintiff cannot prevail on her equitable claims.

“[B]oth unjust enrichment and quantum meruit are doctrines allowing recovery on the theory of restitution, that is, the restoration to a party of something of which he was deprived because of the unjust enrichment of another at his expense.   See G. Palmer, 1 Restitution (1978) § 1.1 ․ Broadly speaking, the availability of restitution is dependent upon unjust enrichment, that is, upon a perceived injustice because one party has benefited at the expense of another.   In a narrower sense, unjust enrichment has been the form of action commonly pursued in this jurisdiction when the benefit that the enriched party receives is either money or property ․ The other form of action of restitution is quantum meruit, which has been utilized when the benefit received was the work, labor, or services of the party seeking restitution.”   (Citation omitted;  internal quotation marks omitted.)  Schirmer v. Souza, 126 Conn.App. 759, 765–66, 12 A.3d 1048 (2011).

Quantum meruit “is sometimes referred in courts of law to the fiction of ‘implied contract’ resorted to to account for the existence of certain equitable rights and liabilities;  really, says Pomeroy's Equity Jurisprudence, Vol. 3 (4th Ed.) § 1238, ‘they arise wholly from considerations of right and justice, and from the application to particular conditions of fact of those maxims which lie at the foundation of equity jurisprudence.’  “ Fischer v. Kennedy, 106 Conn. 484, 492, 138 A. 503 (1927).  “[A]n implied in law contract is not a contract, but an obligation which the law creates out of the circumstances present ․” (Internal quotation marks omitted.)  Vertex, Inc. v. Waterbury, 278 Conn. 557, 574, 898 A.2d 178 (2006);  cf.  Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001) (quantum meruit “does not depend upon the existence of a contract, either express or implied in fact”).   In other words, “[q]uantum meruit [is a form] of the equitable remedy of restitution by which a plaintiff may recover the benefit conferred on a defendant in situations where no express contract has been entered into by the parties.”  (Internal quotation marks omitted.)  Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 737, 901 A.2d 1277 (2006).

Similarly, “[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 ․ The doctrine's three basic requirements are that (1) the defendant was benefited, (2) the defendant unjustly failed to pay the plaintiff for the benefits, and (3) the failure of payment was to the plaintiff's detriment.”  (Citations omitted;  internal quotation marks omitted.)  Gagne v. Vaccaro, supra, 255 Conn. 408–09.

The burden on summary judgment to demonstrate the absence of a genuine issue as to all of the material facts rests with the movant.  Maltas v. Maltas, supra, 298 Conn. 365.   The plaintiff, as the movant, does not demonstrate the absence of a genuine issue as to whether, in terms of quantum meruit, the defendant was a beneficiary of the plaintiff's services, or, in terms of unjust enrichment, whether the defendant was enriched in any way.   The plaintiffs' client in the federal lawsuit was Cimmino.   The complaint alleges that the plaintiff represented Cimmino in that lawsuit.   There is no evidence of any agreement between the plaintiff and the defendant to perform legal services.   Therefore, Cimmino, not the defendant, benefited from the plaintiff's performance of legal services.

In addition, although the plaintiff submits evidence that she has not been compensated by the defendant, nothing compels the defendant to pay the plaintiff for her representation of Cimmino.   While the plaintiff argues that the defendant is obligated pursuant to § 7–101a to “provide a defense” for Cimmino, the statute does not entitle the plaintiff to compensation.⁶  Rather, the statute requires only that the defendant indemnify Cimmino for his legal fees.   See Vibert v. Board of Education, 260 Conn. 167, 173–74, 793 A.2d 1076 (2002) (“we previously have interpreted ․ § 7–101a ․ as an indemnification statute”).   Furthermore, the plaintiff does not even submit any evidence that the defendant failed to indemnify Cimmino.   Accordingly, she cannot demonstrate that the defendant was enriched, let alone unjustly enriched.

The plaintiff also does not demonstrate the absence of a genuine issue as to whether she suffered any deprivation or detriment as a result of her defense of Cimmino in federal court.   Because the plaintiff and Cimmino entered into an attorney-client relationship, there is a presumption of a written fee agreement memorializing the terms of their relationship.   See Rule 1.5(b) of the Rules of Professional Conduct.⁷  The plaintiff, however, does not produce this fee agreement.   Relatedly, there is also no evidence of whether, and how much, Cimmino paid the plaintiff for her work.   Because the plaintiff does not proffer any evidence showing that she was not compensated by her own client, she cannot demonstrate that she suffered any deprivation or detriment as to justify equitable restitution from the defendant.

Based on the foregoing, the plaintiff has not demonstrated the absence of a genuine issue as to all of the material facts that entitle the plaintiff to judgment as a matter of law on her claims of quantum meruit and unjust enrichment.   Therefore, the plaintiffs' motion for summary judgment is denied.

GILARDI, J.

FOOTNOTES

FN1. Several important facts concerning Cimmino and the federal lawsuit are not alleged in the complaint but are introduced by way of certain exhibits filed in support of the plaintiff's motion for summary judgment.   These exhibits submit that (1) Cimmino was employed by the defendant as a school principal;  Plaintiff's Exhibit B;  (2) the federal lawsuit involves a claim of intentional infliction of emotional distress against Cimmino;  Plaintiff's Exhibit 3;  and (3) that lawsuit was brought against Cimmino by two of his “co-workers” and “related to matters that allegedly occurred during the course and scope of [his] employment as a[p]rincipal for the [defendant].”   Plaintiff's Exhibit B..  FN1. Several important facts concerning Cimmino and the federal lawsuit are not alleged in the complaint but are introduced by way of certain exhibits filed in support of the plaintiff's motion for summary judgment.   These exhibits submit that (1) Cimmino was employed by the defendant as a school principal;  Plaintiff's Exhibit B;  (2) the federal lawsuit involves a claim of intentional infliction of emotional distress against Cimmino;  Plaintiff's Exhibit 3;  and (3) that lawsuit was brought against Cimmino by two of his “co-workers” and “related to matters that allegedly occurred during the course and scope of [his] employment as a[p]rincipal for the [defendant].”   Plaintiff's Exhibit B.

FN2. Section 7–101a(b) provides in pertinent part:  “[E]ach municipality shall protect and save harmless any ․ municipal officer or municipal employee from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand or suit instituted against such officer or employee by reason of alleged malicious, wanton or wilful act or ultra vires act, on the part of such officer or employee while acting in the discharge of his duties.”.  FN2. Section 7–101a(b) provides in pertinent part:  “[E]ach municipality shall protect and save harmless any ․ municipal officer or municipal employee from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand or suit instituted against such officer or employee by reason of alleged malicious, wanton or wilful act or ultra vires act, on the part of such officer or employee while acting in the discharge of his duties.”

FN3. Section 52–568 provides in pertinent part:  “Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another ․ without probable cause, shall pay such other person double damages ․”.  FN3. Section 52–568 provides in pertinent part:  “Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another ․ without probable cause, shall pay such other person double damages ․”

FN4. Chapter 7, § 4 of the Bridgeport city charter provides in relevant part:  “The Law Department shall be the legal counsel to every board, commission, department and officer of the city and shall represent the city in the prosecution and defense of all civil actions.   When the interests of the city require, the city attorney many engage any necessary outside counsel, experts or assistants;  provided that funds are available for such purpose ․ Except as otherwise expressly provided by law, no board, commission, officer or department of the city shall retain legal counsel to represent it in any matter without the approval of the city attorney.”.  FN4. Chapter 7, § 4 of the Bridgeport city charter provides in relevant part:  “The Law Department shall be the legal counsel to every board, commission, department and officer of the city and shall represent the city in the prosecution and defense of all civil actions.   When the interests of the city require, the city attorney many engage any necessary outside counsel, experts or assistants;  provided that funds are available for such purpose ․ Except as otherwise expressly provided by law, no board, commission, officer or department of the city shall retain legal counsel to represent it in any matter without the approval of the city attorney.”

FN5. Chapter 2.10.010 of the Bridgeport municipal code provides:  “The city attorney shall be counsel to the city, and shall prosecute and defend all actions which may be brought by or against the city in its corporate name, or by or against any city officer for or by reason of any matter or duty connected with or growing out of his respective office, or in which the city is interested.”.  FN5. Chapter 2.10.010 of the Bridgeport municipal code provides:  “The city attorney shall be counsel to the city, and shall prosecute and defend all actions which may be brought by or against the city in its corporate name, or by or against any city officer for or by reason of any matter or duty connected with or growing out of his respective office, or in which the city is interested.”

FN6. Indeed, the plaintiff would have no standing under the statute to bring an action against the defendant to recover legal fees.   See Deleon v. Winiarksi, Superior Court, judicial district of Hartford, Docket No. CV 00 0800607 (January 26, 2001, Rittenband, J.T.R.) (“the statute does not authorize such an action by a third party but only authorizes reimbursement by the city of [the municipal employee]”).  (Emphasis added.).  FN6. Indeed, the plaintiff would have no standing under the statute to bring an action against the defendant to recover legal fees.   See Deleon v. Winiarksi, Superior Court, judicial district of Hartford, Docket No. CV 00 0800607 (January 26, 2001, Rittenband, J.T.R.) (“the statute does not authorize such an action by a third party but only authorizes reimbursement by the city of [the municipal employee]”).  (Emphasis added.)

FN7. Rule 1.5(b) of the Rules of Professional Conduct provides:  “The scope of the representation, the basis or rate of the fee and expenses for which the client will be responsible, shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate.”.  FN7. Rule 1.5(b) of the Rules of Professional Conduct provides:  “The scope of the representation, the basis or rate of the fee and expenses for which the client will be responsible, shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate.”

Gilardi, Richard P., J.T.R.