Opinion
No. CV04-4000377S
April 28, 2006
MEMORANDUM OF DECISION
FACTS
The plaintiff, Richard Seidel, brings this action against the defendants, the City of Waterbury (the City), the retirement board of the City of Waterbury (the board) and William Aneshensel, the benefits manager of the City of Waterbury. On July 16, 2004, the plaintiff commenced this action by service of process on the defendants. In the two-count complaint dated July 16, 2004, the plaintiff alleges a mandamus action in count one, and a breach of contract action in the second count. The plaintiff alleges the following facts. The plaintiff is a retired firefighter for the city. The plaintiff's retirement and pension rights are controlled by the 1995-1999 collective bargaining agreement between the city and the Waterbury firefighter's union local 1339. The plaintiff applied for disability retirement with the city. On June 17, 1996, the board granted the plaintiff's request for disability retirement and awarded him seventy six percent of his annual pay. On July 5, 1996, the clerical secretary of the city's retirement office calculated seventy six percent of the plaintiff's capped base pay and determined that the plaintiff was entitled to a yearly pension benefit of $48,871.50. Also on July 5, 1996, the city sent the plaintiff a letter stating that his disability pension had been approved. The plaintiff alleges that his pension benefit should be based on his uncapped base pay, and, therefore, his yearly pension benefit should be approximately $56,486.00.
The plaintiff served the city and the retirement board, by leaving each defendant a true and attested copy of the writ, summons, complaint and statement of the amount in demand with the city clerk at 236 Grand Street, Waterbury, Connecticut The plaintiff also made due and legal service upon William Aneshensel, the city's benefits manager, by leaving a true and attested copy of the writ, summons, complaint and amount in demand with him at 236 Grand Street, Waterbury, Connecticut.
On March 11, 2005, the defendants filed an answer to the complaint, along with three special defenses. In the special defenses the defendant alleges that: (1) the plaintiff failed to exhaust his administrative remedies available to him before commencing this action; (2) this court lacks subject matter jurisdiction because the plaintiff lacked standing; and (3) the plaintiff's action is barred by the applicable statute of limitations pursuant to General Statutes § 52-576(a). The plaintiff replied denying the special defenses. On December 13, 2005, the defendants filed a motion for summary judgment. As required by Practice Book § 11-10, the defendants filed a memorandum of law in support of their motion. In response to the defendants' motion for summary judgment, the plaintiff submitted a memorandum of law in opposition dated January 10, 2006.
DISCUSSION
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the 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 . . . 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.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "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." Martel v. Metropolitan District Commission, 275 Conn. 38, 46, 881 A.2d 194 (2005).
"Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 476, n. 4, 866 A.2d 698 (2005). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). "A summary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." (Internal quotation marks omitted.) Collum v. Chapin, 40 Conn.App. 449, 453, 671 A.2d 1329 (1996).
The defendants move for summary judgment on the ground that there are no genuine issues of material fact and they are entitled to judgment as a matter of law because the court lacks subject matter jurisdiction over both counts of the complaint. The defendants argue that: (1) the plaintiff failed to exhaust the grievance procedures set forth in the collective bargaining agreement, and, therefore both counts are time barred by the six-year statute of limitations set forth in General Statutes § 52-576(a) and (2) the plaintiff had an adequate administrative remedy available at law, and, therefore cannot substantiate his mandamus claim that he had no other remedy available. In support of their motion, the defendants submit case law and the following two uncertified pieces of evidence: (1) a copy of the pension award notice letter from the board to the plaintiff, and (2) a copy of § 2709 of the Waterbury city charter, which defines a retiree's right to appeal a decision of the board to the Superior Court.
General Statutes § 52-576(a) states in relevant part: "No action for an account, or on any simple or implied contract, or on any contract in writing shall be brought but within six years after the right of action accrues . . ."
The Connecticut Supreme Court has stated, " [o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995). "[B]efore 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. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). In the present case, the defendants have not properly authenticated nor certified their evidence. The plaintiff also has not properly authenticated and certified the evidence he submitted. It is submitted, however, that the court should consider the evidence because the parties did not raise an objection to the admissibility of the evidence and rely on some of the same documents.
Section 2709 of the Waterbury city charter states in relevant part: "Any person aggrieved by any decision of said retirement board may, within fifteen days from the date when such decision was rendered, take an appeal to the court of common pleas, for the judicial district of Waterbury in New Haven county . . ."
The plaintiff counters that summary judgment is inappropriate because there are genuine issues of material fact as to whether the court has subject matter jurisdiction over the present action because neither the statute of limitations, nor the doctrine of laches, bar the action. The plaintiff also argues that the exhaustion doctrine is inappropriate because the administrative remedy cited by the defendants does not apply to the plaintiff since he is challenging a clerical error and not the granting of the pension. In support of his opposition, the plaintiff submits case law and the following uncertified pieces of evidence: (1) a copy of the minutes from the June 17, 1996, retirement board meeting; (2) a copy of the plaintiff's pension benefits worksheet filled out by the pension and benefits office; (3) a copy of a letter written by Francis Grady, the plaintiff's attorney, to Palma Brustat, the city's pension and benefits administrator; and (4) a copy of a letter written by Richard Russo, the city's director of finance, to Grady.
The court should note that the defendants did not allege laches as one of its three special defenses, therefore, this argument is not before the court.
See footnote 3.
A motion for summary judgment that argues the court lacks subject matter jurisdiction because of a failure to exhaust administrative remedies should be treated as a motion to dismiss. See Paul v. New Haven, 48 Conn.App. 385, 388 n. 2, 710 A.2d 798 (1988); Cuyler v. Board of Education, 46 Conn.Sup. 486, 491-92, 757 A.2d 635 (1998), aff'd, 59 Conn.App. 339, 757 A.2d 635 (2000) ( 24 Conn. L. Rptr. 32). Because the defendants have raised the issue of exhaustion of administrative remedies which implicates subject matter jurisdiction, the court must first address the issue of whether the court has jurisdiction over the present case. "A determination regarding a trial court's subject matter jurisdiction is a question of law." (Internal quotation marks omitted.) 184 Windsor Avenue, LLC v. State, 274 Conn. 302, 308, 875 A.2d 498 (2005). Generally, an issue of lack of subject matter jurisdiction, once raised, "must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 570, 651 A.2d 1246 (1995).
In support of their motion for summary judgment, the defendants argue that the plaintiff is challenging the city retirement board's decision to provide him with a disability pension in the amount of "$47,871.50 instead of $56,486 . . . Thus he disputes the Retirement Board's July 1996 interpretation of the firefighter's contract and has brought this mandamus action." The defendants claim that the Waterbury City Charter in section 2709 provided the plaintiff with a legal remedy. Section 2709 states: "Any person aggrieved by any decision of said Retirement Board may, within fifteen (15) days from the date when such decision was rendered, take an appeal to the [Superior Court] . . ." The defendants conclude that if there is an administrative process, then the plaintiff must first exhaust that process before bringing a claim to the court, and, because, the plaintiff failed to do so, this court lacks subject matter jurisdiction over his claims.
In response, the plaintiff counters in his "objection" that his claim "is not a pension administrative appeal that could have been filed at some earlier time . . . that the Pension and Benefits Office made a clerical error that was not discovered until several years after the granting of Plaintiff's pension; [and] he has not challenged the Retirement Board's 1996 granting of his retirement. Thus, there is no other adequate remedy available to him except for the present lawsuit." In support of his opposition to the motion, the plaintiff maintains that the proper remedy is mandamus because he was not aware of the incorrect calculation in his pension benefit until years after his retirement was granted. He further asserts that when he did become aware of the error, which was not until December 21, 2000, he immediately brought it to the attention of the defendants and requested an administrative hearing. The request was denied. The plaintiff then argues that he relied on the representations by the defendants that they would reconsider his claim for a recalculation of his pension benefits after the lawsuit involving other Waterbury firefighters with similar claims was disposed of by the appellate courts. The defendants, however, did not recalculate his benefits. Without citing to any authority, the plaintiff concludes that § 2709 of the charter did not apply to him because it is applicable to grievances of any decision by the retirement board and not to an error in the calculation of a disability pension award. Instead, he maintains that the calculation should be determined under the collective bargaining agreement.
"It is a settled, principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter . . . [B]ecause the exhaustion doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff['s] claim." (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 821 A.2d 725 (2003). In the collective bargaining context, the Connecticut Supreme Court has stated that "[t]he purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather then the courts, for settling disputes. A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to comment it . . . [I]t would deprive employer and [the] union of the ability to establish a uniform and exclusive method for orderly settlement of the employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation would inevitably exert a disruptive influence upon both the negotiation and administration of collective [bargaining] agreements." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 253-54, 851 A.2d 1165 (2004).
"The doctrine of exhaustion 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 . . . The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency in advance of possible judicial review." (Citation omitted; internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 466-67, 717 A.2d 1177 (1998).
"Despite the important public policy considerations underlying the exhaustion requirement, we have grudgingly carved several exceptions from the exhaustion doctrine . . . We have recognized such exceptions, however, only infrequently and only for narrowly defined purposes . . . One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate . . . An administrative remedy is futile or inadequate if the agency is without the authority to grant the requested relief." (Citations omitted; internal quotation marks omitted.) Mendillo v. Board of Education, supra, 246 Conn. 467. "[I]t is futile to seek an administrative remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings." (Internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 433, 673 A.2d 514 (1996).
The plaintiff was awarded his disability pension in June 1996 and received notification of it in July 1996. Pursuant to § 2709, he had fifteen days to appeal the decision of the retirement board. The plaintiff claims that because (1) the award was based on an error in its calculation, it was not a decision that he could appeal under that section and (2) he was not aware of this error until December 21, 2000, he could not timely appeal the award through the administrative process. A miscalculation of a disability pension award is a decision appealable through the administrative process. See Innaimo v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 99 0146439 (August 24, 2000, D'Addabbo, J.). In Innaimo, the plaintiff appealed from a decision of the retirement board of the City of Waterbury pursuant to § 2709 with respect to the calculation of his disability award. He claimed therein that his pension benefit was based on the minimum percentage rate of fifty percent of his earnings rather than at the higher percentage rate. The court dismissed the appeal concluding that the retirement board had properly calculated his disability pension benefit.
Thus, the plaintiff's recourse in the present case would have been to appeal the pension award. The plaintiff argues that he was not aware of the error until after December 2000, and, therefore, could not have brought a timely appeal. The plaintiff, however, has not argued or offered the court evidence that resort to the administrative procedures would have been futile. Instead, he argues that he has no other remedy available to him but to bring a mandamus action. "It is not the plaintiff's preference for a particular remedy [however] that determines whether the remedy . . . as adequate . . . and an administrative remedy, in order to be `adequate,' need not comport with the plaintiffs' opinion of what a perfect remedy would be." (Citation omitted; internal quotation marks omitted.) Hunt v. Prior, supra, 236 Conn. 434. "The applicable test is often articulated as an inquiry into whether the dispute concerns a claim that is inextricably intertwined with consideration of the terms of the [collective bargaining] contract." (Internal quotation marks omitted.) Tooley v. Metro-North Commuter Railroad Co., 58 Conn.App. 485, 497, 755 A.2d 270 (2000)
Though sympathetic to the plight of the plaintiff, the court is bound by the law and finds it is without subject matter jurisdiction because the plaintiff did not exhaust his administrative remedies or allege that he is within the purview of an exception to the exhaustion requirement. Accordingly, the defendants' motion on this ground is granted.
Normally the court having found that it is without subject matter jurisdiction would not address the defendants' alternative basis for summary judgment on the grounds that the plaintiff's breach of contract claim is time barred by the applicable six-year statute of limitations and the claim of mandamus is legally insufficient. However, since this action may be subject to appellate review the court will also rule on these claims.
The plaintiff's breach of contract claim is governed by the time limitation set forth in General Statutes § 52-576(a). "General Statutes § 52-576 governs the statute of limitations under simple or implied contract actions . . ." Garofalo v. Squillante, 60 Conn.App. 687, 692, 760 A.2d 1271 (2000) Section 52-576(a) provides, in pertinent part: "No action for an account, or on any simple or imrplied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . ."
The court must determine when the applicable statute of limitations began to run. "While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. The true test [in determining when the right of action is regarded as having accrued] is to establish the time when the plaintiff first could have successfully maintained his action." (Internal quotation marks omitted.) Amoco Oil Co. v. Liberty Auto Electric Co., 262 Conn. 142, 153, 810 A.2d 259 (2002). "Applied to a cause of action, the term to accrue means to arrive; to commence; to come into existence; to become a present enforceable demand." (Internal quotation marks omitted.) Polizos v. Nationwide Mutual Ins. Co., 255 Conn. 601, 608, 767 A.2d 1202 (2001). "Although the application of this rule may result in occasional hardship, [i]t is well established that ignorance of the fact that damage has been done does not prevent the running of the statute . . ." (Internal quotation marks omitted.) Amoco Oil Co. v. Liberty Auto Electric Co., supra.
In the present action, the alleged breach of contract by the defendants, to provide the plaintiff with a disability pension, could not have materialized until the obligation to provide the pension arose. It is undisputed that the board granted the plaintiff's disability pension on June 17, 1996 and that the city sent a letter to the plaintiff on July 5, 1996 informing him of the board's decision, the dollar amount of the pension benefit and how that amount was calculated. The plaintiff's cause of action, therefore, began to accrue no later than July 5, 1996.
The court must next determine whether the action was commenced within the six-year time limitation set forth in § 52-576(a). As the defendants filed the motion for summary judgment, they bear the burden to prove that there is no genuine issue of material fact that the plaintiff's action was not commenced within the applicable statute of limitations period. In Connecticut, "[i]t is well settled that a civil action is [commenced] on the date on which the writ of summons is served on the defendant." Feldmann v. Sebastian, 261 Conn. 721, 729, 805 A.2d 713 (2002). The marshal's return, which is attached to the complaint in the court file, indicated that the action was commenced by service of process on the defendants on July 16, 2004. Because the plaintiff's action accrued on July 5, 1996, commencement of this action occurred approximately eight years after the plaintiff's claim accrued, well outside the six-year limitations period. Accordingly, the defendant's motion for summary judgment should be granted unless the plaintiff has produced evidence demonstrating a genuine issue of material fact as to whether the statute of limitations has been tolled. The plaintiff argues that "[t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act." (Internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 275, 640 A.2d 74 (1994).
"[T]he application of the continuing course of conduct doctrine [is] conspicuously fact-bound." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 210, 746 A.2d 730 (2000). Nevertheless, "before the doctrine can be applied, a duty must be first found to have existed. The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Emphasis in original; internal quotation marks omitted.) Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518, 526, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001).
In the present case, the plaintiff's claim that the continuing course conduct doctrine tolled the statute of limitations is not properly before the court. Practice Book § 10-57 provides: "[m]atter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply." In Franco v. Mediplex Construction, Inc., Superior Court, judicial district of New Haven, Docket No. CV 96 0390458 (August 25, 2000, Owens, J.), the court held that "[a] general denial of the defense of limitations is not sufficient . . . The plaintiffs are charged with the knowledge of the rules of practice and should have pleaded more than a simple denial to the defense of the statute of limitations if they wished to plead in avoidance . . . Accordingly, the plaintiffs' claims that the doctrines of continuing course conduct . . . tolled the statutes of limitations applicable to their causes of action are not properly before the court." (Citation omitted; internal quotation marks omitted.) See also Collum v. Chapin, 40 Conn.App. 449, 671 A.2d 1329 (1996) (affirming the trial court's decision to decline to address the plaintiff's claim of continuous course of conduct because it was first raised in an affidavit in the opposition to the defendant's motion for summary judgment). The continuous course of conduct doctrine was not raised in the plaintiff's complaint or in the reply to the defendants' special defense of the statute of limitations. The plaintiff's reply to the defendants' special defense of the statute of limitations contains a one-sentence general denial, "The plaintiff, Richard Seidel, hereby denies each and every allegation contained in the Defendants' Third Special Defense." The plaintiff first raised the continuous course of conduct doctrine in his memorandum in opposition to the motion for summary judgment. Since the continuous course of conduct doctrine was not properly raised in the reply, the court finds no merit to this argument.
Lastly, as to the plaintiff's claim for a writ of mandamus, the defendants argue that the plaintiff had an adequate remedy at law, the administrative process, but failed to avail himself of that remedy in a timely fashion or, pursuant to § 2709, within fifteen days of the decision made by the retirement board. Therefore, the defendants assert that the plaintiff cannot establish the elements of a mandamus action "as he has no clear legal right and judgment should enter against him on the complaint." In other words, the defendants assert that the plaintiff failed to appeal the decision within fifteen days through the administrative procedures provided, that the plaintiff had an adequate remedy at law and that the plaintiff cannot now, more then eight years from that decision, bring a claim for mandamus. The plaintiff counters that his mandamus claim is sufficient as a matter of law because he is asking the court to direct the city to increase his disability award pursuant to the collective bargaining agreement in effect at the time of his retirement to calculate his award on an uncapped base pay and he has met the elements for the issuance of a writ of mandamus.
The Connecticut Superior Court is empowered to issue a writ of mandamus "in any case in which a writ of mandamus may by law be granted." General Statutes § 52-485(a). "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.) Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000). "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).
"An adequate remedy at law is one which is specific and adapted to securing the relief sought conveniently, effectively and completely." (Internal quotation marks omitted.) Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969). "The failure to exhaust an available administrative remedy is a proper ground for denying mandamus." Juliano v. Farrell, 196 Conn. 283, 286, 492 A.2d 187 (1985). Furthermore, "[i]n an action for mandamus, the aggrieved party has the burden of proving deprivation of a clear legal right . . ." (Internal quotation marks omitted.) Light v. Board of Education, 170 Conn. 35, 38, 364 A.2d 229 (1975); see also Stratford v. State Board of Mediation Arbitration, 239 Conn. 32, 44, 681 A.2d 281 (1996).
The court is satisfied that a writ of mandamus is not an appropriate remedy in this case because the plaintiff did not exhaust his administrative remedies and because he did not avail himself of his adequate remedy at law, the administrative process, in a timely fashion. Accordingly, the defendants' motion for summary judgment on this ground would have been granted if the court needed to reach this question.