Opinion
No. CV07 500 36 03S
October 15, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #104
The plaintiff, CH Management, LLC, originally commenced this action against the defendants, the City of Shelton ("Shelton") and Robert Kulacz, on July 20, 2007. A revised complaint subsequently was filed on November 14, 2007. On December 3, 2007, the defendants filed a motion to strike a portion of the prayer for relief in the revised complaint that seeks punitive damages for the injuries alleged in counts one and two, which set out claims for inverse condemnation under the United States and Connecticut Constitutions, respectively.
In these counts, the plaintiff alleges that it owns a parcel of land located at 2 High Street, Shelton, Connecticut, and that it purchased the property in December 2002 with the reasonable expectation that it would be able to build a residential development upon it. It maintains that after purchasing the lot, it submitted a building proposal to the Shelton planning and zoning commission, and that this plan was approved by that authority on January 28, 2005, which in turn led to the issuance of "a certificate of zoning compliance for construction of the proposed home" on February 8, 2005. Notwithstanding all this, the plaintiff alleges that its efforts to develop the property were frustrated by Kulacz, who, in his official capacity as the Shelton city engineer, was responsible for approving building plans and issuing driveway permits. The plaintiff claims that, because he had reservations about the proposed driveway grade, Kulacz refused to "sign off" on its building plans or to issue a driveway permit that it needed to join the property to the public right-of-way. As a result, the plaintiff asserts that it was unable to secure other permits necessary to begin construction, including those needed from the Shelton inland wetlands officer, the tree warden, and the building inspector. Ultimately, the plaintiff maintains that it had to seek and obtain an order of mandamus from the Superior Court compelling the issuance of the necessary permits. Thus, due to the delay caused during this time, and pursuant to an inverse condemnation theory, the plaintiff now seeks "the recovery of just compensation for the temporary taking."
Relevant to the motion now before the court, the plaintiff's prayer for relief also seeks an award of "[p]unitive damages with respect to the inverse condemnation claims . . ." On December 3, 2007, the defendants moved to strike this portion of the prayer for relief, and submitted a memorandum of law in support. The plaintiff provided its own memorandum of law in opposition to the motion to strike on May 26, 2009, and the defendants subsequently filed a reply memorandum of law on June 15, 2009. The motion was heard at short calendar on August 17, 2009.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). Furthermore, a motion to strike is the appropriate vehicle to contest the legal sufficiency of any portion of a prayer for relief. Practice Book § 10-39. "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
In support of their motion to strike, the defendants argue that punitive damages are not available in inverse condemnation cases brought pursuant to either the United States or the Connecticut Constitution, because the relevant clause of each limits a plaintiff's award to "just compensation." See U.S. Const., amend. V ("nor shall private property be taken for public use, without just compensation"); Conn. Const., art. I, § 11 ("The property of no person shall be taken without just compensation therefor"); see also Melillo v. New Haven, 249 Conn. 138, 142 n. 7, 732 A.2d 133 (1999) ("Inverse condemnation is a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted." (Internal quotation marks omitted.)) The plaintiff, on the other hand, argues that General Statutes § 48-17b does authorize an award of punitive damages in inverse condemnation actions. Both parties rely, in part, on Citino v. Redevelopment Agency, 51 Conn.App. 262, 721 A.2d 1197 (1998) to support their positions.
General Statutes § 48-17b provides: "The state court rendering a judgment for the plaintiff in an inverse condemnation proceeding brought against the state by the owner of real property, or the Attorney General effecting a settlement of any such proceeding, shall determine and award or allow to such plaintiff as a part of such judgment or settlement, such sum as will in the opinion of the court or the Attorney General reimburse such plaintiff for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of such proceeding."
Citino dealt with an inverse condemnation claim brought by a landowner against the Hartford redevelopment agency after the landowner borrowed money to improve his own property at the request of the redevelopment agency. Id., 281. The trial court found that the redevelopment agency induced the landowner to make the improvements by threatening him with fines and by revealing its intention to acquire and then redevelop the surrounding properties by exercising its eminent domain powers. Id., 280-81. However, the redevelopment agency never implemented its revitalization plan, which caused further deterioration to the area and resulted in the building on the plaintiff's property "having [no] realistic value in the private market" because it stood "by itself in the midst of the deteriorated and boarded-up buildings owned by the [redevelopment agency]." (Internal quotation marks omitted.) Id., 281. The trial court found for the landowner, but did so on the basis of his related unjust enrichment claim. Id., 263. On appeal, the Appellate Court affirmed the judgment of the trial court, but did so because it determined that the landowner "pleaded and proved an inverse condemnation for which damages [were] due." Id., 282.
In reaching this conclusion, the Appellate Court explained the nature of an inverse condemnation proceeding, and the damages available to a successful plaintiff. "Inverse condemnation is the doctrine asserted by landowners in actions initiated by them, instead of being an action initiated by a taking authority that had the right of eminent domain but did not exercise it, and is based on the constitutional proscription forbidding the taking of private property without just compensation. Inverse condemnation should be distinguished from eminent domain. Eminent domain refers to a legal proceeding in which a government asserts its authority to condemn property . . . Inverse condemnation is a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted." (Internal quotation marks omitted.) Id., 279.
When a plaintiff succeeds in an inverse condemnation action, the measure of damages is the same as that used in eminent domain proceedings. Id., 282. "The general rule is that the loss to the owner from the taking, and not its value to the condemnor, is the measure of damages to be awarded . . . The objective of damages is to award `just compensation,' however damages are calculated." (Citations omitted; internal quotation marks omitted.) Id. "The loss to the owner, in the usual case, is fair market value, but such is not always the case because the question of what is just compensation is equitable not legal . . . The proper measure of damages is that amount of money that will put the landowner in as good a position in a pecuniary sense as he would have been in had the property not been taken." (Citation omitted.) Id., 283.
In Citino, the Appellate Court determined that, because the property in question no longer had economic value due to the dramatic deterioration of the surrounding area caused by the redevelopment agency's failure to effectuate its revitalization plan, the trial court properly "determined just compensation to be the amount of the [landowner's] mortgage notes, which were signed by the [landowner] personally, plus the value of the land." Id.
In the present case, the defendants argue that, even if the facts alleged to support the plaintiff's inverse condemnation claims are accepted as true, regardless of what precise method the court uses to compute damages for the taking, the plaintiff will only be entitled to "just compensation," which necessarily does not include punitive damages. In response, the plaintiff notes that, in Citino, the Appellate Court awarded additional damages pursuant to § 48-17b, which provides that a "state court rendering judgment for the plaintiff in an inverse condemnation proceeding brought against the state by the owner of real property . . . shall determine and award or allow to such plaintiff, as a part of such judgment . . . such sum as will in the opinion of the court . . . reimburse such plaintiff for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of such proceeding." It claims that it, too, is entitled to such damages, and characterizes them as "punitive damages." The defendants disagree. They argue that the damages contemplated by § 48-17b are not "punitive damages," and that if the plaintiff wishes to pursue damages pursuant to that provision, it must expressly refer to the statute in its complaint. In essence, then, the question before the court is whether the damages authorized by § 48-17b are "punitive damages." The court finds that they are not, and therefore determines that the defendants' motion to strike must be granted.
At the outset, and as a general matter, the court notes that our Appellate Court has previously stated that "[i]n the overwhelming majority of jurisdictions which have considered [whether a municipality is liable for punitive damages], it is now firmly established that exemplary or punitive damages are not recoverable unless expressly authorized by statute or through statutory construction . . . In denying punitive or exemplary damages, most courts have reasoned that while the public is benefitted by the exaction of such damages against a malicious, willful or reckless wrongdoer, the benefit does not follow when the public itself is penalized for the acts of its agents over which it is able to exercise but little direct control." (Internal quotation marks omitted.) Hartford v. International Ass'n. of Firefighters, Local 760, 49 Conn.App. 805, 817-18, 717 A.2d 258, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998). As a result, Connecticut courts have held that a plaintiff is not entitled to punitive damages against a municipality or its agent unless the plaintiff's complaint references a statute that explicitly provides for the recovery of punitive damages in the particular type of action. See id., 818; Miller-Black v. Regional School District, Superior Court, judicial district of New London, Docket No. CV 07 5003467 (May 28, 2008, Martin, J.).
Thus, even if the damages authorized by § 48-17b are "punitive damages," the plaintiff must expressly cite that provision in its complaint to be entitled to such relief. In any event, for the following reasons the court also finds that the damages contemplated § 48-17b are not intended to be punitive.
In Connecticut, "[p]unitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights . . . If awarded, they are restricted to the cost of litigation less taxable costs of the action being tried . . ." (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald Co., 275 Conn. 72, 92-93, 881 A.2d 139 (2005). "Such damages serve primarily to compensate the plaintiff for his injuries . . . but, when viewed in the light of the increasing costs of litigation, also serve to punish and deter wrongful conduct." (Citation omitted; internal quotation marks omitted.) Franc v. Bethel Holding Co., 73 Conn.App. 114, 140, 807 A.2d 519, cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002) (appeal withdrawn October 21, 2003). Indeed, "punitive damages generally have the flavor of punishment against a defendant for the quality of his conduct and of deterrence to a defendant or others against such conduct in the future." Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 533, 562 A.2d 1100 (1989).
It is well-established that the General Assembly is entitled to expressly authorize the court to award punitive damages, and "our statutes are replete with provisions for damages expressly designated as `punitive' . . ." Harty v. Cantor Fitzgerald Co., supra, 275 Conn. 91 n. 10 (referencing General Statutes §§ 4d-39, 16-8d, 19a-550, 22-351a, 31-51q, 31-290a, 35-53, 42-110g, 46a-98, 47-278, and 52-240b). Section 48-17b, on the other hand, does not refer to the damages set out therein as being "punitive." Rather, it makes clear that the damages authorized by the provision are intended to "reimburse" the successful inverse-condemnation plaintiff for certain costs and expenses. Presumably, if the legislature considered the damages outlined in § 48-17b to be "punitive," it would have labeled them as such. While it is true that there is some overlap in the types of damages recoverable under § 48-17b and those available as common-law punitive damages — both entitle a prevailing plaintiff to reasonable attorneys fees and certain litigation costs — the damages set out in § 48-17b further entitle a successful inverse-condemnation plaintiff to recoup various costs routinely incurred by a landowner that seeks payment for an uncompensated taking. In the court's opinion, such statutorily prescribed damages are separate and distinct from punitive damages, as they are not designed to punish or deter. As a result, even ignoring for a moment that the plaintiff failed to cite § 48-17b in its revised complaint, it still cannot point to that provision to support its request for "punitive damages."
Although it predated the enactment of § 48-17b, the Supreme Court's ruling in Vincent Brothers v. New York, New Haven Hartford Railroad Co., 77 Conn. 431, 59 A. 491 (1904) further bolsters this conclusion. In that case, the owner of a business that sold "wholesale grain, groceries, meat, and other merchandise" brought suit against the defendant railroad company when the defendant blocked off access, for several months, to the road that served the business and that was owned by the plaintiff. Id., 432. The defendant was acting upon authority granted to it by special act of the General Assembly, which in essence permitted the City of Bridgeport to make an agreement with the defendant to remove grade crossings in the vicinity of the plaintiff's business because the grade crossings were deemed a public nuisance. Id., 436-37. The act also granted the defendant and the City of Bridgeport the power of eminent domain in connection with this task, though neither entity compensated the plaintiff for the time the road was closed. Id., 437.
After the defendant was defaulted, the trial court entered judgment in favor of the plaintiff and held a hearing in damages. Id., 433. In its memorandum of decision assessing the issue of damages, the trial court stated that the action was not one "for the recovery merely of compensation for land taken for a public use, and that the damages [were] not to be assessed according to the rule applicable to such taking"; rather, the trial court determined that the action should be treated "as one in the nature of trespass for a tort." Id., 433-34. On appeal, the Supreme Court disagreed with this conclusion, holding that "[o]n the contrary, the averments of the complaint seem[ed] to be entirely consistent with the claim that under the Constitution of this State . . . the plaintiffs [were] entitled to compensation for the alleged damages, although such occupation of the street was lawful, and although in all respects the defendant lawfully and properly performed the work in which it was engaged." Id., 434-35. The Court explained that the determination of the nature of the plaintiff's cause of action was important, because "[t]he rule of damages for injuries unlawfully inflicted by a mere trespasser is somewhat different from that which is applicable to injuries necessarily resulting from the proper performance of an act for the general good of the community." Id., 434.
Because the Court found that the plaintiff's cause of action essentially alleged that its property had been temporarily, lawfully taken for the public good, it held that the defendant "was therefore only liable for such damages as were required to be paid for lawfully taking private property for a public use." Id., 435. Thus, the Court explained, "[t]he rule of damages to be applied in [the] case [was] the same as that which would have governed in an appraisal of the damages in condemnation proceedings; just compensation for the injuries." Id., 439. Importantly, on this point the Court found error in the methodology used by the trial court to calculate damages: "That the trial court did not apply this rule, and that it considered the question of damages from a wrong standpoint and to the prejudice of the defendant's rights, appears from the language of the memorandum of decision and from the amount of damages awarded in comparison with the full value of the plaintiffs' entire property." (Emphasis added.) Id.
The Supreme Court's warning that, in inverse condemnation proceedings brought pursuant to the Connecticut Constitution, damages are not to be awarded by viewing the defendant as a wrong-doer or from a "wrong standpoint" suggests that the cause of action does not lend itself to an award of punitive damages.
For the foregoing reasons, the allegations in counts one and two of the plaintiff's revised complaint are legally insufficient to support a request for punitive damages and the defendants' motion to strike (#104) that portion of the prayer for relief is therefore granted.
Because, in an effort to preserve its request for punitive damages, the plaintiff attempts to rely on § 48-17b, the defendants encourage the court to now also determine whether the plaintiff could rely on that statute's provisions by amending its complaint. As the Appellate Court observed in Citino v. Redevelopment Agency, supra, 51 Conn.App. 285-86, by its express terms, § 48-17b is only applicable to inverse condemnation cases against the state or agents of the state. Thus, the defendants invite the court to determine whether either of the named defendants were acting as agents of the state at the time of the alleged taking. Such an inquiry "is usually a question of fact, depending on the particular acts of the entity and the events surrounding those facts." Id. However, until and unless the plaintiff actually does amend its complaint to expressly allege its right to damages under § 48-17b, the question of the statute's applicability to the facts of this case is merely hypothetical and is therefore not yet justiciable. See generally Astoria Federal Mortgage Corp. v. Matschke, 111 Conn.App. 462, 463-65, 959 A.2d 652 (2008).