Opinion
No. 4005320
April 30, 2007
MEMORANDUM OF DECISION THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT #120
The plaintiff, Patriot Marine, LLC, of Winthrop, Massachusetts, commenced this action against the defendant, the Indian Town Association, Inc., of Old Saybrook, by service of process on December 23, 2005. In its complaint, the plaintiff alleges the following facts. On March 28, 2005, the plaintiff and the defendant entered into a written agreement for the plaintiff to dredge certain navigable waters which the defendant represented it owned or controlled. The plaintiff began its work on March 17, 2005, and completed the work on May 27, 2005. The plaintiff charged the defendant $350,845 in accordance with the terms of the agreement; the defendant, however, only paid $240,000. The plaintiff brings a four-count complaint for breach of contract, quantum meruit, unjust enrichment and a violation of General Statutes § 42-158j, which relates to payment disputes in commercial construction contracts.
On January 5, 2007, the defendant filed the present motion for summary judgment on the grounds that the court lacks subject matter jurisdiction because the plaintiff failed to serve the proper party, namely, the defendant's clerk, chief presiding officer or managing agent in order to commence this civil proceeding and that counts two, three and four are insufficient as a matter of law. The defendant submitted a supporting memorandum of law and various documentary evidence. The plaintiff filed a memorandum of law in opposition on February 2, 2007, and also submitted documentary evidence. The court heard the matter at short calendar on February 13, 2007.
Initially, the court must evaluate the admissibility of the documentary evidence submitted by the plaintiff and defendant. "[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005). "Practice Book § [17-45 . . . contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [T]he rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." (Internal quotation marks omitted.) Id. "Therefore, before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Conn. Code Evid. § 9-1(a), commentary." (Internal quotation marks omitted.) Id., 679. In the present case, the defendant submitted the following evidence: an uncertified copy of the defendant's charter, an uncertified copy of an amendment to the charter and an uncertified copy of the defendant's bylaws. The plaintiff submitted an uncertified copy of the defendant's motion to dismiss, a certified copy of the transcript of the short calendar hearing on June 19, 2006, an uncertified description of the defendant's corporate status, a certified copy of the defendant's annual report filed July 2, 2004, and uncertified portions of the defendant's charter and bylaws. Since both parties have provided the court with documents that are uncertified and unauthenticated and neither has objected to the admissibility of the evidence, the court may consider the evidence. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
DISCUSSION
In its supporting memorandum of law, the defendant first argues that the entire complaint should be dismissed for lack of subject matter jurisdiction because the plaintiff failed to properly serve the defendant as required under General Statutes § 52-57(b)(6), which prescribes the manner of service on a municipal or quasi-municipal corporation. The defendant asserts that the plaintiff served its vice-president when, according to § 52-57(b)(6), the person to be served is the defendant's president or clerk. The defendant acknowledges that the proper motion to challenge the failure to properly serve a party is by way of a motion to dismiss, but argues that because a failure to properly serve implicates the court's subject matter jurisdiction, the court must dispose of this issue in whatever form it is presented. In response, the plaintiff asserts that this claim has been previously raised and decided by the court. On June 19, 2006, Judge Hurley sustained the plaintiff's objection to the defendant's motion to dismiss on that ground and, subsequently, denied the defendant's motion for reconsideration at oral argument on September 5, 2006. The plaintiff argues that this denial should govern the present motion. Alternatively, the plaintiff argues that service upon the defendant's vice president was proper in this case where the president was not present in this state and the defendant's charter authorizes the vice president to accept service.
"The law of the case . . . expresses the practice of judges generally to refuse to reopen what has been decided and it is not a limitation on their power . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided . . . Nevertheless, if the case comes before [a subsequent judge] regularly and he becomes convinced that the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment." (Citation omitted; internal quotation marks omitted.) Lewis v. Connecticut Gaming Policy Board, 224 Conn. 693, 697, 620 A.2d 780 (1993).
As previously noted, on June 19, 2006, the court, Hurley J., sustained the plaintiff's objection to the defendant's motion to dismiss on the ground, inter alia, that under § 52-57(b)(6) the plaintiff served the incorrect defendant, which is the same ground that the defendant submits in the present motion for summary judgment. The court also denied the defendant's motion for reconsideration on September 5, 2006. The defendant has not presented new evidence or legal authority that would persuade the court to revisit its previous rulings, nor has the defendant convinced the court that the prior decision is clearly erroneous. The defendant's motion for summary judgment on the ground of improper service is denied.
This court is also convinced that its prior ruling is correct. The defendant cites Tarnopol v. Connecticut Siting Council, 212 Comm. 157, 561 A.2d 931 (1989), for the proposition that a defect in service of process deprives the court of subject matter jurisdiction. That case addresses the service requirements under the Uniform Administrative Procedures Act, General Statutes § 4-183(c), which implicate the court's subject matter jurisdiction. Id., 163. In contrast, in civil cases that are not administrative appeals, insufficient service of process implicates personal jurisdiction, not subject matter jurisdiction. Connecticut Light Power Co. v. St. John, 80 Conn.App. 767, 772, 837 A.2d 841 (2004) ("[f]acts showing the service of process in time, form and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person"). If the plaintiff improperly served the defendant, the defendant's only recourse would be a motion to dismiss for lack of personal jurisdiction, filed within thirty days of entering its appearance. Carpenter v. Law Offices of Dressler Associates, LLC, 85 Conn.App. 655, 661, 858 A.2d 820 ("[u]nlike defects in subject matter jurisdiction, which may not be waived, a party waives any objection to a court's personal jurisdiction unless that party files a motion to dismiss within thirty days of the filing of an appearance"), cert. denied, 272 Conn. 909, 863 A.2d 700 (2004). In the present case, the defendant entered a general appearance on January 11, 2006. The defendant did not file a motion to dismiss until March 20, 2006, which is beyond the thirty-day period for filing a motion to dismiss. Accordingly, since the defendant's challenge is based on the service requirements of § 52-57(b)(6), but was not made within thirty days of filing an appearance, the defendant waived its objection to the court's personal jurisdiction.
Next, the defendant argues that if the court determines that process was sufficient, then counts two and three, alleging quantum meruit and unjust enrichment, respectively, must fail as a matter of law because a party may not recover under an express contract and under these two alternative theories. Therefore, the defendant maintains that the plaintiff's claims in these two counts are legally insufficient. Finally, the defendant argues that § 42-158j does not apply in the present case because the harbor dredging project is a public works contracts and the defendant is a municipal corporation. In response, the plaintiff contends that the court should not grant summary judgment as to counts two and three, because the plaintiff is permitted to plead in the alternative and the defendant disputes several points of the breach of contract claim in count one. The plaintiff has not provided any arguments in opposition to the defendant's motion for judgment on count four, claiming a violation of § 42-158j.
The Connecticut Supreme Court has stated that "the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." (Citation omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005).
"Parties routinely plead alternative counts alleging breach of contract and unjust enrichment, although in doing so, they are entitled only to a single measure of damages arising out of these alternative claims. See, e.g., Banks Building Co. v. Malanga Family Real Estate Holding, LLC, 92 Conn.App. 394, 395 n. 2, 885 A.2d 204 (2005) ('plaintiff alleged breach of contract and, alternatively, unjust enrichment'); MD Drilling Blasting, Inc. v. MLS Construction, LLC, 96 Conn.App. 798, 804, 902 A.2d 686 (2006) ('while we acknowledge that the plaintiff may not recover more than a single measure of damages, we conclude that the plaintiff was entitled to judgment on the breach of contract and unjust enrichment claims'). Under this typical belt and suspenders approach, the equitable claim is brought in an alternative count to ensure that the plaintiff receives some recovery in the event that the contract claim fails. See, e.g., United Coastal Industries v. Clearheart Construction Co., 71 Conn.App. 506, 511, 802 A.2d 901 (2002) ('[c]ounts two and three of the complaint, which seek damages for unjust enrichment and quantum meruit are meant to provide an alternative basis for recovery in the event of a failure to prove the breach of contract claim in count one'); Bolmer v. Kocet, 6 Conn.App. 595, 612, 507 A.2d 129 (1986) ('[a]lthough the plaintiffs did not specifically label [the unjust enrichment] count as being in the alternative to the first and second counts, it is clear that it is meant to provide an alternative basis for recovery in the event of a failure of proof under those counts'). The [moving party's] argument that a party may not, as a matter of law, plead an alternative related count for unjust enrichment when that party has a good faith belief that a valid breach of contract cause of action lies, therefore, is without merit." Stein v. Horton, 99 Conn.App. 477, 485-86, 914 A.2d 606 (2007). The plaintiff may allege alternative claims for breach of contract, quantum meruit and unjust enrichment. Therefore, the defendant's motion for summary judgment on counts two and three is denied.
Lastly, the defendant moves for summary judgment on count four, which claims a violation of § 42-158j. That section provides remedies for failure to make timely payments on a construction contract. The relevant definition of a "construction contract" is found in General Statutes § 42-158i(2), which specifically excludes "any public works or other building contract entered into with this state, the United States, any other state, and any municipality or other political subdivision of this state or any other state . . ." Although neither party has submitted a copy of the contract, a dredging contract for a public harbor would generally be considered a public works contract. See L. Suzio Concrete Co. v. New Haven Tobacco, Inc., 28 Conn.App. 622, 631, 611 A.2d 921 (1992) ("[p]ublic works are typified by sewer systems, streets and roads, schools and other projects owned and paid for by the government, exempt from property taxes and put to the common use"). Even if this contract is not a public works contract, § 42-158i also excludes other building contracts with any municipality or political subdivision. As shown in section one of its charter, special act number 477 of 1939, the defendant is a "body politic." Per section two of the charter, "[t]he object of this association is to provide for the improvement of the land in said territory and for the health, comfort, protection and convenience of persons living therein." The defendant is therefore a municipality or political subdivision, and, as a result, the contract at issue falls outside the scope of § 42-158j. Accordingly, the court grants the defendant's motion for summary judgment as to count four.
CONCLUSION
The defendant's motion for summary judgment is denied as to counts two and three, but granted as to count four.