Donna M. Best v. Town of Stratford et al. (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S APPLICATION FOR MANDAMUS # 167

I

BACKGROUND AND PROCEDURAL HISTORY

Before the court is the plaintiff's application for an order of mandamus compelling the town of Stratford and its mayor, John Harkins, to restore her to her office.   The plaintiff is Donna Best, and presently holds the title of “administrator” of Stratford Emergency Medical Services (“Stratford EMS”).   She does not, however, presently possess the duties and responsibilities of that position, which instead and until recently belonged to Philip Onofrio, the sole defendant who previously held the title of “director” of Stratford EMS. In order to remedy her situation, on May 18, 2011, the plaintiff filed a complaint in the nature of quo warranto against Onofrio.

In addition to Onofrio, the plaintiff had originally named as defendants:  the town of Stratford (town), the mayor of the town, John A. Harkins (mayor) and a member of the Connecticut General Assembly, Jason Perillo (town defendants).   The plaintiff also named as defendants:  CBG Strategies, LLC and Emergency Medical Management Solutions, LLC (private defendants).   On December 14 and 15, 2011, the town defendants and the private defendants each filed a motion to dismiss, respectively.   On April 26, 2012, the court, Radcliffe, J., granted both motions.   The plaintiff made no attempt to bring any of the town defendants or private defendants back into this action, thus leaving Onofrio the sole defendant.   It is also significant to the court's present inquiry that, previously, the plaintiff had not sought a writ of mandamus against the town defendants.

On December 3, 2012, following a bench trial on the merits, the court, Owens, J., entered a memorandum of decision in favor of the plaintiff on the plaintiff's single remaining count in the nature of quo warranto pursuant to General Statutes § 52–491 ¹ against, Phillip Onofrio as the sole remaining defendant in this action [55 Conn. L. Rptr. 135].   In that memorandum, the court agreed with the plaintiff that Onofrio had failed to meet his burden of establishing valid legal title to his office of director of Stratford EMS. This was so because, although Onofrio and the plaintiff held different literal titles, with Onofrio holding the title of “director,” and the plaintiff holding the title of “administrator,” the court found that the plaintiff had assumed all the duties of a “director” for twelve years prior to Onofrio's appointment.   The court found further that the town charter permitted only one individual to serve as a “director,” that the plaintiff still held her position and, accordingly, that it was improper for the defendant to assume the duties and responsibilities of a “director.”   Thus, the court concluded, Onofrio did not meet his burden of establishing title to his office.   The court's memorandum did not, however, enter a final judgment in the action.²

On December 20, 2012, Onofrio appealed the court's December 3, 2012 decision to the Appellate Court.   That appeal was dismissed by the Appellate Court on March 28, 2013 because final judgment had not entered at the time the appeal was filed.

Meanwhile, on January 16, 2013, the plaintiff filed a motion for judgment that requested the court to enter judgment in accordance with the December 3, 2013 memorandum of decision.   Final judgment was entered on March 18, 2013.   Onofrio renewed his appeal on March 26, 2013.   That appeal is presently pending.

On March 13, 2013, prior to the entry of final judgment, but after the plaintiff had requested an entry of final judgment, the plaintiff filed an application for order of mandamus (# 167) pursuant to Practice Book § 23–47 in an effort to compel Onofrio and the town defendants to restore the plaintiff to the position of director of Stratford EMS. It is this application for an order of mandamus that is the subject of the present memorandum of decision.   It states as its grounds that there was no adequate remedy at law, the town and mayor owed the plaintiff a nondiscretionary duty, the plaintiff has a clear legal right to see the duty performed and the plaintiff could demonstrate irreparable harm.   When it was initially filed, the application was not accompanied by a proposed order to show cause, which is provided for by Practice Book § 23–47.   In addition, the plaintiff did not seek to withdraw or otherwise delay action on her motion for judgment, and the plaintiff did not attempt to bring any of the town defendants back into the action.   The plaintiff's application claims on the basis of the court's December 3, 2012 decision that the town is obligated to restore the plaintiff to her position, and in support therefore states as its factual basis that, although Onofrio was preparing to leave his position, the town and mayor have no intention of restoring the plaintiff to her position.   Rather, the town and mayor intended to appoint a different individual, since identified as Michael Loiz, to the position of director of Stratford EMS.³ Representations made to the court in both the plaintiff's moving papers and at a hearing held on the plaintiff's application for mandamus on July 12, 2013, indicate that Onofrio had left his office by April 2013 and that Loiz had assumed the position of director of Stratford EMS shortly thereafter.

On March 13, 2013, Onofrio filed his objection to the plaintiff's application (# 168) on the grounds that:  the case was already on appeal to the Appellate Court;  the plaintiff's application failed to comply with Practice Book § 23–47 in that it was not filed in a pending action;  and the court could not grant the plaintiff any practical relief because the plaintiff still maintained her position as administrator of Stratford EMS and because Onofrio had already vacated his office.

Thereafter, the various parties filed a number of different documents in conjunction with the plaintiff's application for mandamus:  the plaintiff's supplement to her application (# 175), including the plaintiff's own affidavit, which the plaintiff filed on May 2, 2013;  the plaintiff's response to the defendant's objection, which the plaintiff filed on May 8, 2013 (# 176);  Onofrio's sur reply in support of his objection, which he filed on May 9, 2013 (# 177);  and, the plaintiff's second supplement to her application for mandamus (# 187).⁴  At the July 12, 2013 hearing, the plaintiff conceded that her original application ought to have included an order to show cause why the writ should not be granted.   Accordingly, after the presentation of testimony, the court adjourned so that the plaintiff could file a revised application for mandamus that was to include an order to show cause.

On July 15, 2013, the plaintiff filed her revised application for a writ of mandamus (# 197).   The clerk entered an order to show cause why the writ should not be granted on July 19, 2013, setting August 16, 2013 as the hearing date.   On July 19, 2013, Onofrio filed a renewed objection to the plaintiff's application (# 201).   On August 15, 2013, Onofrio filed a document entitled “Statement Re:  Judicial Notice” (# 207), which requests that the court take judicial notice of the present procedural posture of the case, including that an appeal is presently pending and that final judgment has entered.   On August 16, 2013, Onofrio filed a motion pursuant to Practice Book § 23–49 (# 208), which restates Onofrio's various objections to the plaintiff's application for an order of mandamus, and which also proposes a scheduling order for briefing in the event the court should deem the application meritorious.   The court has reviewed and considered each of the filings recounted herein.   On August 16, 2013, the parties appeared before the court and presented argument on the procedural aspects of plaintiff's application.

II

DISCUSSION

Pursuant to General Statutes § 52–485(a):  “The Superior Court may issue a writ of mandamus in any case in which a writ of mandamus may by law be granted, and may proceed therein and render judgment according to rules made by the judges of the Superior Court or, in default thereof, according to the course of the common law.”  Practice Book § 23–47 provides further:  “An order in the nature of a mandamus may be made in aid of a pending action upon the application of any party, and any person claimed to be charged with the duty of performing the act in question may be summoned before the court by the service upon that person of a rule to show cause.”

“Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes ․ It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law ․ That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks ․ The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary;  (2) the party applying for the writ has a clear legal right to have the duty performed;  and (3) there is no other specific adequate remedy.”  (Internal quotation marks omitted.)  AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 416–17, 853 A.2d 497 (2004).

“Even satisfaction of this demanding test does not, however, automatically compel issuance of the requested writ of mandamus ․ In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity.”  (Citation omitted.)  Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990).   In addition, the court may not proceed to enter a writ of mandamus against an entity that is not a party to the action.   See Zanoni v. Cipparone, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04–CV–04–4034729–S (December 2, 2008, Shapiro, J.) (mandamus not available against probate judge not party to probate appeal) citing Kiszkiel v. Gwiazda, 174 Conn. 176, 180, 383 A.2d 1348 (1978) (mandamus proper against probate judge who was joined as a defendant);  see also Williams v. Cleaveland, 76 Conn. 426, 56 A. 850 (1904) (proper method of obtaining review of refusal to permit a probate appeal is by application for a writ of mandamus);  Honan v. Greene, 37 Conn.App. 137, 655 A.2d 274 (1995) (same).

At the August 16, 2013 hearing, and in his various moving papers, Onofrio argues that the application for an order of mandamus is improper in form because the original motion violated Practice Book §§ 23–47 and 23–48 because it did not include an order to show cause.   Onofrio also argues that any action granting the plaintiff's application would violate the automatic stay of execution imposed by Practice Book § 61–11(a) upon all final judgments pending appeal.   In addition, Onofrio contends that the present application was not filed in aid of a pending action, as required by Practice Book § 23–47, because the present action is no longer pending.   Instead, he reasons, the entry of final judgment on March 18, 2013, ceased this court's ability to rule on the plaintiff's application.

In response, the plaintiff argues that the court may rule on her application for an order of mandamus because it was originally filed on March 11, 2013, prior to the entry of final judgment on March 18, 2013, or Onofrio's appeal on March 26, 2013.   The plaintiff notes that the December 20, 2012 appeal had been dismissed by the Appellate Court, and contends that the July 19, 2013 order to show cause is a “supplement” to the original application for an order of mandamus.   The plaintiff also cites Ahneman v. Ahneman, 243 Conn. 471, 706 A.2d 960 (1998), for the proposition that a court does not have discretion to decline to entertain a motion by a party even when an appeal is pending.   Finally, the plaintiff argues that to the extent a procedural default may have existed, it was cured by the July 19, 2013 order to show cause.

Onofrio offered, as a further reply to the plaintiff's arguments at the August 16, 2013 hearing, that Ahneman is distinguishable because it did not concern a final judgment.   Onofrio also reasoned that, were the court to grant the application, an entirely new action would commence and that this would be inconsistent with the present appeal.   Onofrio also argued that the application was improper because it would affect Loiz, who is not a party to this action, and because the only party with authority to restore the plaintiff to her position is the mayor, who is also no longer a party.

At the outset, the court notes that ruling on the plaintiff's application for an order of mandamus in this case would not violate the automatic stay imposed by Practice Book § 66–11(a).  “[An automatic stay] denies [the successful party] the immediate fruits of his or her victory ․ in order to protect the full and unhampered exercise of the right to appellate review.”  (Internal quotation marks omitted.)  Pavliscak v. Bridgeport Hospital, 48 Conn.App. 580, 588, 711 A.2d 747, cert. denied, 245 Conn. 911, 718 A.2d 17 (1998).   Accordingly, the effect of an automatic stay is to prevent a party from executing a judgment pending appeal.  Id. It does not, however, preclude the filing of additional motions.   See Ahneman v. Ahneman, supra, 243 Conn. 471 (trial court improperly refused to consider motions during pendency of appeal;  court's jurisdiction over motions continued regardless of fact that similar issues were being challenged on appeal).   Here, a consideration of the plaintiff's subsequent application for an order of mandamus would not inhibit Onofrio's exercise of his right to appellate review on the quo warranto action.   Indeed, Onofrio has exercised his right to appeal, as evidenced by the fact that he has filed an appeal and has amended that appeal on several occasions since.

Nevertheless, whether or not the plaintiff's application for an order of mandamus may violate the automatic stay is irrelevant in the present case because the court concludes that the plaintiff's application must be denied, both because this action is not presently pending and because, even if it were, the court could not grant the plaintiff the relief she seeks because Loiz and the town are not parties in this action.

As previously noted, Practice Book § 23–47 provides that a party may apply for an order of mandamus in a pending action.   Although the plaintiff is correct that she initially filed her application for mandamus prior to the entry of final judgment on March 18, 2013, the court may not at this juncture issue a writ of mandamus.   Whatever the status of the action at the time the application for mandamus was filed, final judgment has been entered by the court at the request of the plaintiff and this action is now up on appeal.   It is also significant that, upon filing her application for mandamus, the plaintiff did not withdraw her motion for judgment or otherwise communicate to the court a desire to delay adjudication of her motion for judgment until the court could rule on her application for mandamus.   This action is not, therefore, presently pending.

In addition, even if the court were to determine that the plaintiff's application was filed in a pending action, it must be denied for two reasons.   First, that the plaintiff misconstrues the nature and effect of the court's December 3, 2012 decision.   The fact that a writ of quo warranto has issued does not entitle the plaintiff to a writ of mandamus because “[a] successful quo warranto action unseats an illegal office holder and declares the position vacant.   It does not place the rightful claimant into the office.   If the claimant can thereafter establish his clear right to the position, he may bring an action in mandamus to seek his own appointment.”  New Haven Firebird Society v. Board of Fire Commissioners, 219 Conn. 432, 436, 593 A.2d 1383 (1991).

Second, “[m]andamus neither gives nor defines rights which one does not already have ․ It acts upon the request of one who has a complete and immediate legal right;  it cannot and does not act upon a doubtful and contested right.”  Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 533–34, 450 A.2d 369 (1982).   In an action for a writ of mandamus, the plaintiff bears the burden of proving the “deprivation of a clear legal right that warrants the imposition of such an extraordinary remedy.”  (Internal quotation marks omitted.)  Honan v. Greene, supra, 37 Conn.App. 143.

Here, the plaintiff cannot establish a right to her office solely on the basis of the court's December 3, 2012 memorandum of decision because that decision goes exclusively to the plaintiff's action in the nature of quo warranto, an action that has different elements from an application for an order of mandamus.   Compare, e.g., Bateson v. Weddle, 306 Conn. 1, 11, 48 A.3d 652 (2012) (An action in quo warranto “lie[s] to prevent the usurpation of a public office or franchise ․ by placing the burden on the defendant to prove lawful entitlement to a particular office ․ and oust[ing] individuals illegally occupying public offices ․ The purpose of the proceeding, therefore, is to test the actual right to the office and not merely a use under color of right.”  [Citations omitted;  internal quotation marks omitted.] ) with Avalon Bay Communities, Inc. v. Sewer Commission, supra, 270 Conn. 416–17 (“The writ [of mandamus] is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary;  (2) the party applying for the writ has a clear legal right to have the duty performed;  and (3) there is no other specific adequate remedy.”  [Internal quotation marks omitted] ).

Thus, the court's prior decision focused exclusively upon whether Onofrio had met his burden of establishing title to the office of director of EMS, and concluded that he did not.   In reaching this result the court found that the plaintiff presently held the position of “administrator” of Stratford EMS and that this position was the functional equivalent of a “director.”   The court's December 3, 2012 memorandum did not, however, find that the plaintiff had established a legal entitlement to her position—only that she does presently hold it.   Accordingly, because the previous trial in this action did not concern a writ of mandamus, the court, in its December 3, 2012 memorandum, could not have and did not make any direct determination as to whether the plaintiff had established a right to her office.⁵

Granting the writ of mandamus would be impractical and improper and impractical for an additional reason;  namely, it could not unseat Loiz. “It is settled law that except as otherwise provided by statute, quo warranto is the exclusive method of trying the title to an office ․” (Emphasis added.)   Scully v. Westport, 145 Conn. 648, 652, 145 A.2d 742 (1958).   In the present case, the testimony of the plaintiff on July 12, 2013, as well as the representations of counsel for both parties, establishes that Loiz presently holds the office of “director” of Stratford EMS. Loiz is not, however, a party to this action.   Should the plaintiff desire to remove Loiz from office, she is required to bring a separate action in the nature of quo warranto against him.   A writ of mandamus cannot remove him from office.⁶

Finally, and in similar fashion, the fact that none of the town defendants that were originally parties to this action are parties at this juncture precludes the court from granting the plaintiff's application.   As counsel for the town aptly pointed out during the August 16, 2013 hearing, a writ of mandamus against Onofrio or, for that matter, Loiz, would be ineffective because neither of these two individuals possesses the authority to restore the plaintiff to her position.   Instead, that authority rests with the town of Stratford and the mayor, neither of whom are parties.⁷

III

CONCLUSION

For the foregoing reasons, the plaintiff's application for mandamus (# 167) is DENIED.

The Court,

OWENS, J.T.R.

FOOTNOTES

FN1. Section 52–491 provides:  “When any person or corporation usurps the exercise of any office, franchise or jurisdiction, the Superior Court may proceed, on a complaint in the nature of a quo warranto, to punish such person or corporation for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law.”.  FN1. Section 52–491 provides:  “When any person or corporation usurps the exercise of any office, franchise or jurisdiction, the Superior Court may proceed, on a complaint in the nature of a quo warranto, to punish such person or corporation for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law.”

FN2. For further facts and procedural history, see this court's memorandum of decision:  Best v. Stratford, Superior Court, judicial district of Fairfield, Docket No. 11 6018916 (December 3, 2012, Owens, J.) [55 Conn. L. Rptr. 135]..  FN2. For further facts and procedural history, see this court's memorandum of decision:  Best v. Stratford, Superior Court, judicial district of Fairfield, Docket No. 11 6018916 (December 3, 2012, Owens, J.) [55 Conn. L. Rptr. 135].

FN3. Testimony by the plaintiff that was heard by the court at the July 12, 2013 hearing indicates that sometime circa March 2013, the town appointed nonparty Michael Loiz as Onofrio's replacement..  FN3. Testimony by the plaintiff that was heard by the court at the July 12, 2013 hearing indicates that sometime circa March 2013, the town appointed nonparty Michael Loiz as Onofrio's replacement.

FN4. The plaintiff did not use the nomenclature “second.”   The court refers to it as such because this document constitutes the second supplement filed by the plaintiff..  FN4. The plaintiff did not use the nomenclature “second.”   The court refers to it as such because this document constitutes the second supplement filed by the plaintiff.

FN5. The court does not make any determination in this memorandum as to whether the plaintiff does have a right to her office..  FN5. The court does not make any determination in this memorandum as to whether the plaintiff does have a right to her office.

FN6. Respecting this issue, at the July 12, 2013 hearing, counsel for the plaintiff expressed concern the possibility that his client was faced with a “revolving door,” wherein she would be required to bring action after action in the nature of quo warranto to remove illegally appointed officers because the town was unwilling to restore the plaintiff to her position.   The court notes that should the above be true, the plaintiff is not without a remedy.   More specifically, although injunctive relief is typically unavailable in quo warranto;  see State ex rel Gaski v. Basile, 174 Conn. 36, 381 A.2d 547 (1977);  our Supreme Court has recognized an exception to this rule when a plaintiff can establish that quo warranto would not constitute an adequate remedy because the defendants are engaging in a continuous ongoing illegal appointment practice.   See New Haven Firebird Society v. Board of Fire Commissioners, supra, 219 Conn. 432..  FN6. Respecting this issue, at the July 12, 2013 hearing, counsel for the plaintiff expressed concern the possibility that his client was faced with a “revolving door,” wherein she would be required to bring action after action in the nature of quo warranto to remove illegally appointed officers because the town was unwilling to restore the plaintiff to her position.   The court notes that should the above be true, the plaintiff is not without a remedy.   More specifically, although injunctive relief is typically unavailable in quo warranto;  see State ex rel Gaski v. Basile, 174 Conn. 36, 381 A.2d 547 (1977);  our Supreme Court has recognized an exception to this rule when a plaintiff can establish that quo warranto would not constitute an adequate remedy because the defendants are engaging in a continuous ongoing illegal appointment practice.   See New Haven Firebird Society v. Board of Fire Commissioners, supra, 219 Conn. 432.

FN7. At the hearing on August 16, 2013, counsel for the plaintiff argued that the town defendants did remain parties to the present action because counsel for the town had not taken any action to have them removed.   This position ignores the fact that on April 26, 2012, the court, Radcliffe, J., dismissed all counts against all defendants except Onofrio.   Accordingly, Onofrio remains the sole defendant..  FN7. At the hearing on August 16, 2013, counsel for the plaintiff argued that the town defendants did remain parties to the present action because counsel for the town had not taken any action to have them removed.   This position ignores the fact that on April 26, 2012, the court, Radcliffe, J., dismissed all counts against all defendants except Onofrio.   Accordingly, Onofrio remains the sole defendant.

Owens, Howard T., J.T.R.