Opinion
X07HHDCV146055838S
11-08-2017
Civic Mind, LLC v. City of Hartford
UNPUBLISHED OPINION
MEMORANDUM OF DECISION GRANTING SUMMARY JUDGMENT
Thomas G. Moukawsher, J.
This summary judgment motion turns on the pinch of Fennell --that is to say the constraints imposed by the Connecticut Supreme Court decision in Fennell v. Hartford . For municipalities, Fennell and its offshoots have clamped off whole categories of contract-like liability faced by ordinary litigants. Indeed, under Fennell, the only way to bind a municipality based on its promises or actions is the formal method the municipality provides by law: " no ratification or estoppel can make lawful a municipal contract which is beyond the scope of the corporate powers, or which is not executed in compliance with mandatory conditions prescribed in the charter or statutes . . ." In Biello v. Watertown in 2008, the Appellate Court said Fennell was just as fatal to unjust enrichment and quantum meruit claims. In 2011, the same court in Ferrucci v. Middlebury held that Fennell, applied to promissory estoppel claims with the same fatal effect. Civic Mind's complaint is about city actions related to hiring a sports stadium manager. It alleges the same causes of action precluded by previous court decisions under Fennell, so without more the claims must all fail.
238 Conn. 809, 681 A.2d 934 (1996).
Id. at 818-19.
109 Conn.App. 572, 583 n.7, 953 A.2d 656, cert. denied, 289 Conn. 934, 958 A.2d 1244.
131 Conn.App. 289, 304-05, 25 A.3d 728, cert. denied, 302 Conn. 944, 31 A.3d 382.
Looking for a way out, Civic Mind says this is a case of subsequent ratification as recognized by the Appellate Court in 2015 in Bellsite Development, LLC v. Monroe . In that case, Bellsite claimed damages against Monroe for leading it to believe it would locate police communications equipment on a tower Bellsite owned but then reneging. The Court in that case held that a municipality may ratify an otherwise invalid contract " when it later accepts the benefits." The court held that the municipality didn't ratify the otherwise invalid contract because there was " no evidence that the town council acted in any way that could reasonably be interpreted as ratification" and the town received no benefit.
155 Conn.App. 131, 107 A.3d 1028, cert. denied, 318 Conn. 901, 122 A.3d 1279.
Id. at 134-37.
Id. at 150.
Id.
Civic Mind says that Hartford ratified an otherwise invalid agreement. It says it started work related to the stadium but the city later cut ties with it. Yet, Civic Mind says that the city still ratified its work and its right to be paid when city officials asked for Civic Mind's invoices and then paid a couple before other city officials cut off the payments and repudiated them.
The question in Fennell 's shadow is whether this is enough to be ratification under Bellsite . Civic Mind admits that the city never followed the steps needed to make a lawful contract with Civic Mind. Specifically, it concedes that the party with formal authority--corporation counsel--neither approved nor signed a contract with Civic Mind--and the city says corporation counsel in fact rejected one. After that, Civic Mind's claims of ratification sound a lot like claims of unjust enrichment, quantum meruit, and promissory estoppel--all the claims that Fennell bars.
Nothing about Bellsite suggests it meant to undercut these holdings by allowing the mere receipt of benefits or the representations of unauthorized officials to create a legal liability for a municipality. Instead, Bellsite notably focused on the Monroe town council as being the party that didn't ratify the contract after noting that the council " held the power to contract on behalf of the town." This means that given Fennell any action that can be called ratification under Bellsite must be by the entity that holds the power to contract on behalf of the town. This is particularly so since Fennell expressly rules out customary forms of ratification: " no ratification . . . can make lawful a municipal contract which is beyond the scope of the corporate powers . . . which is not executed in compliance with mandatory conditions prescribed in the charter or statutes . . ."
Id. at 147, 150.
Here, there is certainly no claim that the municipal entity holding the contract power ratified an otherwise invalid contract with Civic Mind. Civic Mind concedes that Hartford corporation counsel is the one with the power to contract on behalf of the town. It relies for ratification on the actions of lower level officials without that power. Therefore, it cannot claim ratification and its claims must succumb to Fennell 's poisonous embrace.
Contrary to Civic Mind's claims, municipalities that hire public sports stadium managers aren't liable under CUTPA either. General Statutes § 42-110c says CUTPA doesn't apply to " actions otherwise permitted under law as administered by any . . . officer acting under statutory authority of the state . . ." It also only applies to " trade" and " commerce" defined under General Statutes § 42-110a as " the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state."
As the 1980 Supreme Court case City Council v. Hall made clear, local government officials act solely under the authority of state law: " the only powers a municipal corporation has are those which are expressly granted to it by the state." The Hartford city charter that establishes how contracts are entered is entirely a creature of state statute. Administering it is thus entirely exempt from CUTPA claims.
Even if it weren't, nothing about a city hiring a contractor to manage city property is trade or commerce. Civic Mind may have been engaged in trade because it sells it services. But there is no evidence here that the city was selling services or property. There is evidence only that as part of its governmental function it operates a place for public enjoyment. It is undisputed that the space cost millions to construct and generates a few thousand dollars of annual fees. Charging a nominal fee for access to some public space doesn't amount to selling services or property. It is merely incidental to the public purpose served by the space. If a municipality rents town hall out for civic group meetings but charges a small fee to pay for a janitor is it exposed to CUTPA? If a city got paid by road contractors for police is it exposed to CUTPA? Plainly the answer is no because the purpose is the public's business not the sale of services and the fees are only incidental. If a city isn't protected by CUTPA's governmental exception, it is protected because incidental money made from public property doesn't amount to trade or commerce.
Because none of Civic Mind's claims against Hartford can stand as a matter of law, the court grants summary judgment in favor of Hartford against Civic Mind.