Opinion
No. FST CV 08-4015243S
June 25, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #103
Procedural History
The plaintiffs, the city of Stamford (Stamford) and Barry Callahan (Callahan), fire marshal, brought this quo warranto action against the defendant, Antonio L. Olive, Jr., who has been appointed fire marshal by Turn of River Fire Department, Inc. (TRFD), which provides fire protection services in the Turn of River area of Stamford. By its complaint, Stamford and Callahan seek to require the defendant to show by what authority he claims to hold the office to exercise the powers and privileges of fire marshal of the Turn of River area.
According to the complaint, Stamford operates under a charter initially enacted as a special act at the time of the consolidation of the town of Stamford and the city of Stamford. Under charter provision § C5-30-3(d), fire protection in Stamford is divided among a paid fire department, Stamford Fire and Rescue, and five volunteer departments. The plaintiff Callahan is a duly-appointed fire marshal of Stamford, appointed by the Stamford Fire Commission in accordance with the provisions of charter § C5-40-3(c) and General Statutes § 29-297.
Section 29-297(a) provides in relevant part: "The board of fire commissioners or, in the absence of such board, any corresponding authority of each town, city or borough, or, if no such board or corresponding authority exists, the legislative body of each city, the board of selectmen of each town or the warden and burgesses of each borough, or, in the case of an incorporated fire district, the executive authority of such district shall appoint a local fire marshal and such deputy fire marshals as may be necessary."
Historically, the area served by the fire marshal appointed by the Stamford Fire Commission has been limited to the area in which the Stamford Fire and Rescue is the designated provider of fire and other emergency services. The Stamford fire marshal has also provided services in other areas of Stamford with the consent of the volunteer fire company providing fire and other emergency services in such area.
TRFD is a non-profit corporation, incorporated in Connecticut. It is a volunteer fire department providing fire and other emergency services in the Turn of River area of Stamford. The defendant claims to hold the office of fire marshal in the area served by TRFD by virtue of his appointment to that post by TRFD on July 1, 2008. The plaintiffs claim that TRFD is not an incorporated fire district within the meaning of § CT Page 10652 29-297 or the Stamford charter. The plaintiffs further allege that there is no statute authorizing an incorporated volunteer fire company, such as TRFD, to act as if it were an incorporated fire district, nor is there a statute authorizing volunteer fire companies to appoint fire marshals. It is the plaintiffs' position that the defendant is exercising the powers of a fire marshal in the area served by TRFD, unlawfully and to the exclusion of Callahan, who is the only fire marshal in Stamford who has been appointed pursuant to § 29-297 and the Stamford charter. The defendants filed this motion to strike the complaint and prayer for relief asserting that the plaintiffs have failed to join an indispensable party, namely, TRFD.
Legal Discussion
"[T]he exclusive remedy for nonjoinder of parties is by motion to strike." (Internal quotation marks omitted.) George v. St. Ann's Church, 182 Conn. 322, 325, 438 A.2d 97 (1980). "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.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "Insofar as [a] motion to strike is directed [to] the entire complaint, it must . . . fail if any of the plaintiff's claims are legally sufficient." (Internal quotation marks omitted.) Whelan v. Whelan, 41 Conn.Sup. 519, 520, 588 A.2d 251 (1991) [ 3 Conn. L. Rptr. 135].
"Practice Book § 10-39(a) provides in relevant part: Whenever any party wishes to contest . . . (3) the legal sufficiency of any such complaint . . . because of the absence of any necessary party or . . . the failure to join . . . any interested person . . . that party may do so by filing a motion to strike the contested pleading . . . Practice Book § 9-18 provides: The judicial authority may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the judicial authority may direct that they be brought in. If a person not a party has an interest or title which the judgment will affect, the judicial authority, on its motion, shall direct that person to be made a party." (Citation omitted; internal quotation marks omitted.) Galla v. Jodaitis, Superior Court, judicial district of Waterbury, Docket No. CV 08 4016652 (November 7, 2008, Brunetti, J.).
The defendant moves to strike the plaintiffs' complaint in the nature of quo warranto on the ground that the plaintiffs have failed to join TRFD, an indispensable party. It is the defendant's position that because the plaintiffs are alleging that TRFD does not have the authority to appoint a fire marshal to act within its fire service district, it is challenging TRFD's powers and authority. Further, the defendant asserts that if the plaintiffs are successful, it will leave TRFD without a fire marshal. The plaintiffs argue that, because this is a complaint in the nature of quo warranto, the burden is on the defendant to prove his right to hold office and the plaintiffs simply have identified in their complaint the reasons that they believe the defendant is not entitled to hold office. The plaintiffs further assert that TRFD "can appoint someone else if it wishes to continue asserting its authority to appoint fire marshals" or it can acknowledge that Callahan has authority as fire marshal in the Turn of the River area. Finally, it is the plaintiffs' position that if TRFD wants to establish that it does have the right to appoint a fire marshal then it can commence an appropriate action to that end.
"Parties are considered indispensable when they not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final [disposition] may be . . . inconsistent with equity and good conscience . . . Indispensable parties must be joined because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action] . . . Necessary parties, in contrast, are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved . . . [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties." (Internal quotation marks omitted.) Demarest v. Fire Department of Norwalk, 76 Conn.App. 24, 28, 817 A.2d 1285 (2003).
The plaintiffs brought this complaint in the nature of quo warranto. General Statutes § 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." "A quo warranto proceeding under the common law lies only to test the defendant's right to hold office dejure . . . It is well established that in quo warranto proceedings the burden is upon the defendant to show a complete title to the office in dispute . . . A successful action in quo warranto ousts the wrongful office holder and declares the position vacant.
The parties both concede that the position of fire marshal is a public office. This court agrees as "[t]he plaintiff has met the two criteria to determine whether a governmental position constitutes a public office within the meaning of the quo warranto statute." Samperi v. DeLoatch, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 01 0074924 (July 26, 200], Arnold, J.). First, a fire marshal is authorized by law and the duties of the position are outlined therein. Secondly, as a fire marshal, the defendant has certain duties which he is to exercise for the benefit of the public. See Id.
"The parties defendant or respondent in quo warranto proceedings are those charged with exercising the particular office or franchise without lawful right. Stated otherwise, a writ of quo warranto must be directed toward the objectionable person holding an office and exercising its functions in his or her individual capacity." (Citations omitted; internal quotation marks omitted.) Demarest v. Fire Department of Norwalk, supra, 76 Conn.App. 29.
In support of their position, the plaintiffs cite to New Haven Firebird Society v. Board of Fire Commissions of New Haven, 219 Conn. 432, 593 A.2d 1383 (1991). In New Haven Firebird Society, the plaintiff firefighters sought to enjoin the defendant board of fire commissions from continuing their thirty-year practice of making promotions from expired lists of eligibility. Id., 433-34. The complaint claimed that these promotions violated the city charter and civil service rules. The trial court dismissed the action ruling that there existed an adequate remedy at law, namely an action quo warranto, and the plaintiffs appealed. Id., 435. In reversing the trial court's decision, our Supreme Court held that, because of the continuing nature of the wrongdoing, the trial court should not have determined that quo warranto was an adequate remedy. The court reasoned that quo warranto may oust individuals illegally occupying public office, but it could not prevent the defendants from continuing the challenged practice in the future. Id., 438.
Similarly, in the case of Honulik v. Greenwich, Superior Court, complex litigation docket at Stamford-Norwalk at Stamford, Docket No. X05 CV 04 199882 (September 4, 2007, Shay, J.). reversed on other grounds, 290 Conn. 421, 963, A.2d 979 (2009), the court found that a quo warranto action, "only address[es] the status of the particular office." In that case the court reasoned that because there was a broader issue, "such as an arbitrary change in a work rule or established past practice," injunctive relief was also an appropriate remedy to seek. Id.
In the present case, the plaintiffs are bringing a complaint only in the nature of quo warranto. This differs from the majority of actions involving similar factual situations in which a quo warranto action is brought against the allegedly wrongfully appointed public official and a claim for injunctive relief is simultaneously brought against the body that appointed said official. See, e.g., New Haven Firebird Society v. Board of Fire Commissions of New Haven, supra, 219 Conn. 432; Booker v. Jarijura, Superior Court, judicial district of Waterbury, Docket No. CV 07 4014260 (May 2, 2008, Cremins, J.) (plaintiff filed quo warranto action seeking to remove an individual from office as member of zoning commission and an action seeking a permanent injunction requiring the members of the zoning commission to make appointments to minority positions on the zoning commission only from a list of specified candidates); Honulik v. Greenwich, supra, Superior Court, Docket No. X05 CV 04 199882 (plaintiff filed quo warranto action to remove police captain from office and also sought an injunction preventing the town from administering a promotional exam to fill another captain's position which had become vacant).
As such, this action applies to the defendant specifically, who has the burden of showing title to the office in dispute. See General Statutes § 52-491. Even if the defendant does not meet his burden, this does not prevent TRFD from appointing another fire marshal of its choosing. See New Haven Firebird Society v. Board of Fire Commissions of New Haven, supra, 219 Conn. 438. TRFD's participation is unnecessary to grant the relief requested by the plaintiffs. The defendant's argument that TRFD is a necessary or indispensable party therefore fails. See Demarest v. Fire Department of Norwalk, supra, 76 Conn.App. 28. Accordingly, the defendant's motion to strike the plaintiffs' complaint and prayer for relief is denied.