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

MEMORANDUM OF DECISION

FACTS

On January 28, 2011, this court issued a memorandum of decision on a motion for summary judgment filed by the defendant, town of Hamden [51 Conn. L. Rptr. 359].   The court denied, in part, the motion for summary judgment finding that there was a genuine issue of material fact regarding whether the plaintiffs were covered as employees under the second collective bargaining agreement and that the Fennell doctrine, a doctrine governing the contractual promises of municipal employees, did not apply to the claims of negligent misrepresentation.

On February 17, 2011, the defendant filed a motion to reargue and reconsider the court's ruling pursuant to Practice Book § 11–12 on the ground that the court's “conclusions are plainly erroneous as a matter of law, and if allowed to stand, will subject the defendant to tens of thousands of dollars in unnecessary defense costs.”   The court granted the motion to reargue and heard oral arguments at short calendar on April 18, 2011.

DISCUSSION

“[T]he purpose of a reargument is ․ to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts ․ It also may be used to address alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court ․ [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple ․” (Citations omitted;  internal quotation marks omitted.)  Opoku v. Grant, 63 Conn.App. 686, 692–93, 778 A.2d 981 (2001).  “The granting of a motion for reconsideration ․ is within the sound discretion of the court.”  (Internal quotation marks omitted.)  Mangiante v. Niemiec, 98 Conn.App. 567, 575, 910 A.2d 235 (2006).  “A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it.”  (Internal quotation marks omitted.)  Id., 577.

“A motion to reargue is not a device to ․ present additional cases or briefs which could have been presented at the time of the original argument.”   (Internal quotation marks omitted.)  C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 101 n.39, 919 A.2d 1002 (2007).  “[A] motion to reargue cannot be used to correct the deficiencies in a prior motion ․” Opoku v. Grant, supra, 63 Conn.App. 692.  “Newly discovered evidence may warrant reconsideration of a court's decision.   However, [f]or evidence to be newly discovered, it must be of such a nature that [it] could not have been earlier discovered by the exercise of due diligence.”  (Internal quotation marks omitted.)  Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 656, 905 A.2d 1256 (2006).

The defendant argues that the court relied on past practices to determine that there was a genuine issue of material fact as to whether the plaintiffs were covered under the second agreement.   It maintains that the court “erred as a matter of law in holding that an alleged unilateral change in past practice can constitute a breach of contract given that the contract does not require the Town to pay retroactive wage increases to these retirees.”   Moreover, the defendant asserts that past practices is irrelevant because the contract language is unambiguous, the plaintiffs are mere third-party beneficiaries of a contract between the defendant and the plaintiffs' former union and the union vice president who was involved in the negotiations, David Cumpstone, concedes in an affidavit that the second agreement was never meant to include those who retired prior to the ratification of the second agreement.   They further contend that the plaintiffs have not established that there was a past practice between themselves and the defendant.

As to the negligent misrepresentation counts, the defendant argues that the court erred as a matter of law in its application of Fennell.   They maintain that “[t]he underlying principle of Fennell and its progeny is that local governments (and thus the taxpayers who support them) should not be liable for the inaccurate representations made by public servants.”   The defendant additionally raises the argument that it has specially pleaded the defense of governmental immunity and that, though not raised initially in the motion for summary judgment, it should be considered by the court at this time.

As noted previously, a motion to reconsider is “not to be used as an opportunity to have a second bite of the apple.”  Opoko v. Grant, supra, 63 Conn.App. 693.   It is not a time to present additional cases or briefs, correct deficiencies in the original motion or submit evidence that could have been presented during the original argument.  C.R. Klewin Northeast, LLC v. Bridgeport, supra, 282 Conn. 101 n.39;  Opoku v. Grant, supra, 63 Conn.App. 692;  Durkin Village Plainville, LLC v. Cunningham, supra, 97 Conn.App. 656.   Accordingly, the court will not consider the defendant's arguments that the plaintiffs are third-party beneficiaries of a contract between the defendant and the plaintiffs' former union, that the special defense of governmental immunity should apply to the counts of negligent misrepresentation or the affidavit by David Cumpstone.

I

Breach of Contract Counts

The defendant argues that the court's holding that there is genuine issue of material fact as to whether the plaintiffs are covered under the second agreement is based, in part, on a consideration of past practices.   A careful reading of the court's memorandum of decision reveals, however, that the court only considered past practices after concluding that the contract was ambiguous.   See Honulik v. Greenwich, 293 Conn. 698, 717, 980 A.2d 880 (2009).   Thus, even though the court agrees with the defendant that the court cannot consider past practices, it does not negate the fact that the contract itself is ambiguous and there still remains a genuine issue of material fact as to whether the plaintiffs are covered under the second agreement.¹

Moreover, accepting as a matter of law that the issue of retroactive wages of those who retire under an expired agreement is a permissive subject of bargaining that the defendant is not required to negotiate, the defendant did not meet its burden, by providing evidence, that it did not negotiate this subject.   It has provided no evidence that the decision not to award retroactive wages and benefits was, in fact, a unilateral change by the defendant.  “It is not enough for the moving party merely to assert the absence of any disputed factual issue;  the moving party is required ‘to bring forward ․ evidentiary facts, or substantial evidence outside the pleadings ’ to show the absence of any material dispute.”  (Emphasis in original;  internal quotation marks omitted.)  Gambardella v. Kaoud, 38 Conn.App. 355, 358, 660 A.2d 877 (1995).   The evidence submitted was silent as to whether there were any negotiations about retroactive wages for those who retired prior to the ratification of the second agreement or whether there was an understanding that retirees would receive retroactive benefits, and the contract itself does not shed light on the issue.   In a motion for summary judgment, it is the moving party who has the burden of demonstrating that there is no genuine issue of material fact and the defendant has failed to do so on this issue.

The defendant also bases its argument that there is no genuine issue of material fact as to the breach of contract counts on a Connecticut state board of labor relations (SBLR) decision and the Superior Court decision that affirmed it.   Town of Hamden, Decision No. 4343 (2008);  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).   The SBLR found that those who had retired prior to the ratification date were not employees under the second contract because, at some point during the negotiations, they left the employ of the municipality and ceased to be a part of the bargaining unit.   Town of Hamden, supra, Decision No. 4343.   In finding that it lacked jurisdiction to hear the grievance, the SBLR implicitly found that the “employees” referred to in the second contract were those who were actively employed at the time that the contract was ratified.  Id.

The defendant notes that the contracts examined in that case have similar provisions to the ones at issue in the present case, but the SBLR decision does not state which provisions are used to support its position that the retirees were not covered by the second agreement.   Furthermore, an examination of a SBLR decision by the Superior Court entails a different standard of review than that for a motion for summary judgment.  “Judicial review of the [labor board's] action is governed by [UAPA, General Statutes §§ 4–183(j), 4–184], and the scope of that review is very restricted ․ [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable ․ Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact.   Our [standard of review] is to determine, in view of all of the evidence, whether the agency ․ acted unreasonably, arbitrarily, illegally or in abuse of discretion.”  (Internal quotation marks omitted.)  Locals 2863, 3042, 1303–052, 1303–115, Council 4, AFSCME, AFL–CIO v. Hamden, supra, Superior Court, Docket No. CV 08 4019054.   On the other hand, “[i]n 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).

Given the lack of specificity of the contract provisions relied upon in the SBLR decision and the different standard of review in the Superior Court decision, the court concludes that it does not have enough information to determine whether the present case is factually similar enough to grant deference to those persuasive authorities.   The defendant has not met its burden of proving that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.   The court affirms its decision with respect to the breach of contract claims.

II

Negligent Misrepresentation Claims

The defendant reiterates its argument that the Fennell doctrine should apply to negligent misrepresentations.   The court fully addressed the defendant's argument and drew the parties' attention to Bassetti v. East Haven Board of Education, Superior Court, judicial district of New Haven, Docket No. 410872 (June 19, 2001, Blue, J.) [30 Conn. L. Rptr. 69], a case that explicitly held that a municipality could be held liable for negligent misrepresentation.   Neither in the motion for summary judgment nor in its motion to reconsider did the defendant show that a controlling decision or some principle of law had been overlooked, or that there had been a misapprehension of facts, or that there was a claim of law that was not addressed by the court.   Nor has the defendant supplied the court with any newly discovered evidence to support its position.   Instead, the defendant cites ten cases that support this court's position that Fennell applies to actions against municipalities where the plaintiffs seek damages for implied or oral contracts, not in negligence actions.   It is evident that the motion to reconsider as to the negligent misrepresentation counts is merely seeking an impermissible second bite of the apple.   See Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94 n. 28, 952 A.2d 1 (2008).   The court affirms its decision with respect to the negligent misrepresentation claims.

CONCLUSION

Based on the above, the court affirms its decision on the motion for summary judgment.

BY THE COURT

Richard E. Burke, Judge

FOOTNOTES

FN1. Furthermore, the defendant has failed to meet its burden of showing the nonexistence of past practices.   By arguing that the plaintiffs have failed to establish that a past practice existed, the defendant, at the stage of a motion for summary judgment, impermissibly seeks to shift the burden of proof to the plaintiffs.   While the defendant may be correct that the plaintiffs may not be able to prove past practices at trial, they need not do so at this stage.   The defendant did not provide sufficient evidence at the summary judgment stage to support the conclusion that there was not a past practice of providing retroactive benefits.   In fact, the only evidence submitted as to the existence of past practice is the deposition testimony of a former personnel director who stated that it was a past practice to provide retroactive wages and benefits to those who retired during an expired contract.   Thus, the defendant failed to meet its burden that a genuine issue of material fact does not exist as to the existence of past practices..  FN1. Furthermore, the defendant has failed to meet its burden of showing the nonexistence of past practices.   By arguing that the plaintiffs have failed to establish that a past practice existed, the defendant, at the stage of a motion for summary judgment, impermissibly seeks to shift the burden of proof to the plaintiffs.   While the defendant may be correct that the plaintiffs may not be able to prove past practices at trial, they need not do so at this stage.   The defendant did not provide sufficient evidence at the summary judgment stage to support the conclusion that there was not a past practice of providing retroactive benefits.   In fact, the only evidence submitted as to the existence of past practice is the deposition testimony of a former personnel director who stated that it was a past practice to provide retroactive wages and benefits to those who retired during an expired contract.   Thus, the defendant failed to meet its burden that a genuine issue of material fact does not exist as to the existence of past practices.

Burke, Richard E., J.