Opinion
No. 5001480
November 8, 2007.
MEMORANDUM OF DECISION RE MOTION TO DISMISS #103
The plaintiff, Columbia Air Services, Inc., filed an eight-count complaint against Connecticut department of transportation (DOT) and Stephen Korta, the Commissioner of Transportation (collectively, the defendant) on July 27, 2006. The plaintiff filed its amended eight-count complaint on August 23, 2006. In its amended complaint, the plaintiff alleges breach of contract (count one), breach of covenant of good faith and fair dealing (count two), fraud (count three), unjust enrichment (count four), quantum meruit (count five), deprivation of constitutional rights (count six) and violation of Connecticut Antitrust Act (count seven). Count eight is an administrative appeal pursuant to General Statutes § 4-166 et seq.
In its amended complaint, the plaintiff alleges, inter alia, the following facts. The plaintiff leased, and continues to lease, land at the airport from the defendant and operated a full service fixed, base operation (FBO), providing aircraft fueling and maintenance, flight training, scenic and charter flights and general ground support to general aviation users of the airport. On June 30, 2003, the plaintiff requested an opportunity to lease and develop a 2.6 acre parcel of land. On September 15, 2003, in response to the plaintiff's request, the defendants issued an invitation for proposals for construction, management and maintenance of an aviation-related facility at Groton-New London airport (invitation for proposals). The invitation called for "submission of sealed proposals on a competitive negotiated basis for construction and management of an aviation-related facility" on the subject 2.6 acre site. Article two of the invitation stated that the agreement will be awarded by the commissioner to the proposer submitting the most desirable proposal. The plaintiff was prequalified and, on October 27, 2003, submitted a bid in compliance with the terms of the invitation. By letter, dated February 6, 2004, the defendant awarded the plaintiff the leasehold and development rights and stated that the plaintiff would be "contacted soon to schedule meeting dates and begin the agreement negotiation process." Between February 6, 2004, and July 14, 2005, the plaintiff contacted the defendant several times attempting to secure a temporary agreement so that it could begin construction. In each case, the defendant represented that the project was "on hold" due to state backlogs, but that the leasehold and development rights awarded to the plaintiff were secure. On July 21, 2005, in response to the plaintiff's repeated requests, the defendant provided the plaintiff with a draft copy of a lease and operating rights agreement for the subject parcel, advising the plaintiff that the parties would proceed directly to a formal lease and operating rights agreement and forego the temporary agreement process. Upon receipt of the draft of lease and operating rights agreement, the plaintiff contacted the defendant to discuss the terms and conditions and was advised that the matter could not proceed because the document had first to be reviewed by the finance unit and the contract compliance office. On August 5, 2005, the plaintiff contacted the defendant and requested expedited attention to the small business administration (SBA) requirements, necessary for obtaining financing from the SBA. The defendant assured the plaintiff that the request would be taken up by the defendant's counsel at his earliest opportunity. Hearing nothing further, the plaintiff requested and was granted a special meeting with the defendant's counsel and, in the first week of October 2005, met to review the SBA document that required the defendant's signature. During this meeting, the plaintiff advised the defendant that, once the SBA receives the endorsement, it would still take several months to close the loan. The follow-up meeting was scheduled for October 26, 2005. On October 10, 2005, the plaintiff wrote to the defendant requesting an acknowledgment that, given the onset of winter and the mechanics of closing the SBA loan, the construction could not start until Spring, 2006. On October 25, 2005, the defendant's counsel responded that he had not heard back from the defendant on the matter, that the October 26, 2005 meeting was cancelled and that the plaintiff would be contacted to reschedule. Hearing nothing further, the plaintiff contacted the defendant on February 14, 2006, and requested a second formal meeting to address the defendant's endorsement of the SBA document and the status of the project. The meeting was held on March 3, 2006. During the meeting, the plaintiff requested an extension of time in which to complete the new construction project for the following reasons: the project costs had increased by $500,000 during the twenty-five months that the defendant failed to issue a temporary agreement or execute the SBA document or a lease and operating rights agreement and the plaintiff would need time to secure funding to cover this cost increase which would take several months. By letter, dated March 28, 2006, the defendants communicated the following requirements: construction plans must be submitted and a temporary agreement signed no later than April 28, 2006; site work construction must start on May 1, 2006; hangar construction must start on June 1, 2006; and the project must be completed in December 2006. On April 6, 2006, the SBA received the form bearing the defendant's endorsement. By mid-May 2006, the plaintiff had made significant progress with the SBA and had nearly secured a commitment for alternative short-term financing. By letter, dated May 26, 2006, the plaintiff proposed that construction start in Spring of 2007, in order for the plaintiff to follow through with its original cost-efficient financing, to have an opportunity to solicit subcontractor bids, to secure competitive pricing for the project and to provide a reasonable amount of time for construction contractors to mobilize and begin construction. By letter, dated June 6, 2006, without discussion or negotiation of any kind, the defendant terminated the leasehold and development rights awarded to the plaintiff with respect to the subject parcel. By letter, dated June 13, 2006, the plaintiff asked the defendant to reconsider its position, representing that it would execute a temporary agreement calling for project completion in December of 2006. By telephone communication on June 19, 2006, the defendant rejected the request for reconsideration. In reliance on the defendant's assurance that it would have the right to lease and develop the parcel in accordance with the terms and conditions of its accepted proposal, the plaintiff invested thousands of dollars and hundreds of man-hours in securing all FAA permits, completing eighty percent of the design and construction documents, obtaining all site work permits, meeting all cultural resource management requirements for the project and negotiating contracts with aircraft suppliers and prospective tenants. The defendant breached the contract with the plaintiff and a covenant of good faith and fair dealing by failing to timely contact the plaintiff to set up meetings and negotiate an agreement as represented in the February 6, 2004 award letter, by failing to negotiate and execute a temporary agreement and lease and operating rights agreement, by representing that it would enter directly into a lease and operating rights agreement when it knew or should have known that it was not the case, by thwarting and delaying the plaintiff's efforts to finance its development at the airport with SBA funds, by delaying the project for twenty-five months by its inaction, and by imposing a construction time line to which it was practically impossible for the plaintiff to adhere. The defendant knew that its representations to the plaintiff that the plaintiff's rights were secure were false when made and were made to induce the plaintiff into a false sense of security with respect to the project until such time as the defendant could find another party interested in developing it. The plaintiff relied on the defendant's false representations to its detriment. The plaintiff's substantial work, including its comprehensive bid, financial investment, labor, permitting, testing and design work, provided the defendant with the benefit that it could use. The defendant unjustly failed to compensate the plaintiff with the right to develop the 2.6 acre parcel. The defendant has been unjustly enriched by the plaintiff's work and by its own delay. The defendant knowingly accepted the plaintiff's substantial work. By its actions, the defendant overtly and impliedly promised to reward the plaintiff with the right to develop the 2.6 acre parcel in accordance with its comprehensive bid. Prior to and subsequent to rendering its decision on the plaintiff's bid, the defendant engaged in covert, collusive and conspiratorial contacts, including actions through lobbyists, with the plaintiff's competitors. These actions of the defendant violate the plaintiff's constitutional rights in that the defendant deprived the plaintiff of due process of law because the defendant has made an arbitrary and capricious decision without any basis in law and because the defendant engaged in covert, collusive and conspiratorial contacts with the plaintiff's competitors, in violation of the fifth and fourteenth amendments of the United States constitution and article one, section eight of the Connecticut constitution. The defendant failed to afford the plaintiff equal protection under the law by allowing competitors to potentially bid on the subject project after it was awarded to the plaintiff, in violation of the fourteenth amendment of the United States constitution and article one, sections one and twenty of the Connecticut constitution. The defendant interfered with trade and commerce by their covert, collusive and conspiratorial contacts with competitors and failed to afford the plaintiff equal protection under the law by allowing a competitor, Lanmar, to become a FBO at the airport without meeting the state minimum standards and without holding the opportunity out for public bid, by permitting Lanmar to gain significant competitive advantage over the plaintiff by authorizing Lanmar's development of fixed bases of operation at the arrival ends of both runways at the airport and by permitting Lanmar to develop, in a period of five years, approximately eleven acres and 102,500 square feet of hangar and office space at the airport, as compared to the plaintiff's 6.9 acres and 49,000 square feet of hangar and office space over a period of twenty five years. The defendant's actions violate Connecticut Antitrust Act, General Statutes § 35-24, et seq., in that they constitute "contract, combination, or conspiracy in restraint of trade or commerce." As a result of the defendant's actions, the plaintiff has sustained substantial financial loss and competitive disadvantage.
Specifically, the plaintiff alleges the following facts. The defendant encouraged and authorized Lanmar to become a full service FBO even though Lanmar did not meet the state's regulations regarding minimum standards for FBO aeronautical activities at the airport and without requiring Lanmar to compete in open bidding for the leasehold, development and operating rights against other FBO operators. As a result of this initiative, the site now contains Lanmar's first FBO facility at the airport. In February 2003, the defendant issued a request for proposals, which called for erection of an aviation-related facility on a 3.3 acre parcel. Lanmar and the plaintiff each submitted proposals. The right to develop the parcel was awarded to Lanmar, and the site now contains Lanmar's second FBO facility at the airport. The plaintiff's request that a site be relocated 300 feet to the northeast to provide sufficient room for the plaintiff to erect a 20,000 square feet hangar was denied by the defendant. In conjunction with its denial of this request, the defendant represented to the plaintiff that it would authorize construction of a 20,000 square feet hangar on the 2.6 acre site. In September 2003, the defendant issued another invitation for proposals. The plaintiff submitted two separate proposals. Lanmar submitted a single proposal. The defendant awarded the right to develop the parcel to Lanmar.
In its administrative appeal count, filed pursuant to General Statutes § 4-166 et seq., the plaintiff alleges that, in unlawfully terminating the award of bid to the plaintiff, the defendant acted illegally, arbitrarily and in abuse of discretion in that it failed to consider that the plaintiff had property rights by virtue of the award of the bid to the plaintiff and that the plaintiff had fully complied with all of the terms of the bid and award; the defendant's decision was contrary to the evidence that was submitted before it; the defendant acted unreasonably by imposing unreasonable and unattainable demands on the plaintiff; the defendant thwarted and delayed the plaintiff's efforts to secure SBA financing for the project, thereby prejudicing the plaintiff's ability to meet the unreasonable construction schedule unilaterally imposed by the defendant; the defendant's action terminating the bid awarded to the plaintiff is not supported by substantial evidence in the record; and the plaintiff is aggrieved by the decision of the defendant in that it has caused the plaintiff to suffer hardship, loss, financial harm and competitive disadvantage.
The plaintiff asks the court for compensatory and punitive damages as well as temporary or permanent injunction enjoining the defendant from issuing another invitation for proposals or awarding the subject leasehold and development rights to another bidder or entity other than the plaintiff and directing the defendant to reinstate the award of bid to the plaintiff.
On October 30, 2006, the defendant filed a motion to dismiss the plaintiff's complaint for lack of subject matter jurisdiction. The motion was accompanied by a memorandum of law and numerous exhibits. On December 15, 2006, the plaintiff filed a memorandum of law in opposition accompanied by numerous exhibits. The defendant filed reply memorandum of law on February 16, 2007. The motion was heard on the short calendar on July 12, 2007.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). Practice Book 10-31 provides in relevant part: "(a) The motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter . . ." "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) Ferguson Mechanical Co. v. Dept. of Public Works, 282 Conn. 764, 771, 924 A.2d 846 (2007).
"In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) 184 Windsor Avenue, LLC v. State, 274 Conn. 302, 304-05 n. 3, 875 A.2d 498 (2005). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
The defendant moves to dismiss this action on the ground that the court lacks subject matter jurisdiction. In its memorandum of law in support of the motion to dismiss, the defendant argues, inter alia, that the court lacks subject matter jurisdiction over this case because the plaintiff's claims are barred by the doctrine of sovereign immunity and because the plaintiff has no standing to bring this action as there was no contract between the plaintiff and the defendant.
I SOVEREIGN IMMUNITY
"[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law . . . Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence." (Citations omitted; internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 258 (2007). "[The Supreme Court] previously ha[s] held that a litigant that seeks to overcome the presumption of sovereign immunity must show that (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute . . . In making this determination, [the Supreme] [C]ourt has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Citations omitted; internal quotation marks omitted.) Id., 258-59. "[W]hen an official acts in excess of his statutory authority and does not carry out government policy, an individual's right to be free from the consequences of such action outweighs the interest served by the sovereign immunity doctrine . . . [T]his exception applies only to actions for injunctive or declaratory relief . . . The reason for this qualification was to protect the state from significant interference with its functions and to limit the rule to declaratory or injunctive suits, in which the trial court carefully can tailor the relief." (Citations omitted; internal quotation marks omitted.) Id., 259.
A Counts One, Two, Four and Five
The defendant moves to dismiss counts one, two, four and five of the plaintiff's amended complaint on the ground that these claims are barred by the doctrine of sovereign immunity. The defendant argues as follows. The plaintiff's claims in counts one, two, four and five are claims for money damages, involving contract issues and are, therefore, barred by the doctrine of sovereign immunity. The plaintiff failed to obtain authorization from the claims commissioner, which is required by law. The plaintiff's claims for injunctive relief are barred by sovereign immunity because the plaintiff failed to allege an incursion on constitutionally protected interests. The plaintiff's allegations are not substantial enough to overcome the sovereign immunity bar. The plaintiff lacks standing to challenge the defendant's decision not to proceed to the contract because the plaintiff is an unsuccessful bidder.
The plaintiff counters that the defendant and the plaintiff entered into contract because, by letter, dated February 6, 2004, the defendant awarded the plaintiff the leasehold and development rights. The plaintiff argues as follows. Because a contract had been formed by virtue of the award letter coupled with the negotiations that followed, the plaintiff is not a rejected bidder, and therefore, it had a specific personal and legal interest in the award. The plaintiff has standing because it has pleaded facts sufficient to establish its entitlement to the valuable property rights awarded under the contract. Even if the plaintiff were an unsuccessful bidder it would have standing to challenge the defendant's decision because the plaintiff alleges that the defendant committed fraud and favoritism postcontract by soliciting the plaintiff's competitors and then unilaterally revoking the contract. The plaintiff has standing as a contracting party. The plaintiff alleged that the negotiations with respect to the subject parcel actually began prior to issuance of the invitation for proposals, and long in advance of the February 6, 2004 award letter. The award letter memorialized a meeting of the minds on all material terms. Invitation for proposals requires the proposers to state that the "proposal is a firm offer." The plaintiff's proposal was an offer containing all material terms of the agreement and the defendant's acceptance formed a binding contract. The agreement is memorialized in several writings, including the plaintiff's signed request for authorization to lease and develop the 2.6 acre site, the plaintiff's signed response to the invitation for proposals, and the defendant's signed letter awarding the plaintiff the leasehold and development rights. Taken together, the writings signed by the plaintiff set forth the material terms of the agreement. The award letter accepting the proposal, signed by the defendant, memorialized a meeting of the minds on all material terms and created an enforceable agreement between the plaintiff and the defendant by operation of common law. A post-award negotiation was a mere formality. The full agreement contemplated in the plaintiff's accepted offer, was merely an amendment to the plaintiff's existing lease, limited to incorporation of the accepted bid language, as had been the practice of the plaintiff and the defendant on all prior occasions. Even if the post-selection negotiation language applies to the plaintiff, the defendant was contractually bound to negotiate in a good faith effort to establish a formal written agreement. Since the plaintiff is required to sign under oath that its proposal is "a firm offer," the defendant's duty to negotiate must be discharged within a reasonable period of time following the selection. The plaintiff has set forth allegations necessary to establish that the defendant has a contractual duty to negotiate an agreement and that it breached that contractual duty in failing to do so. The plaintiff has alleged facts sufficient to invoke the doctrine of partial performance/equitable estoppel. According to the facts alleged in the complaint and the affidavit, the plaintiff engaged in numerous acts demonstrating its unmistakable intention to perform its obligation under the contract. These acts of part performance were done in pursuance of the contract and with the design of carrying the same into execution. The plaintiff's acts of partial performance were done with the express assent and knowledge of the defendant and were of such a character that they cannot be naturally and reasonably accounted for in any other way than the existence of some contract in relation to the subject matter in dispute. As such, the plaintiff is entitled to the protections of the doctrine of partial performance and the defendant is equitably estopped from denying the plaintiff its legitimate contractual right. The defendant cannot rely on the doctrine of sovereign immunity because the plaintiff's claims for injunctive and equitable relief are grounded on constitutional deprivations.
Here, it is undisputed that the present action is an action against the state. The plaintiff's claims in counts one, two, four and five are the claims arising out of a purported contractual relationship between the plaintiff and the defendant. Accordingly, the court must "look to the language of the statutes pertaining to contracts and claims against the state." 184 Windsor Avenue, LLC v. State, supra, 274 Conn. 309. General Statutes § 4-61(a) "is the sole Connecticut statute that expressly waives sovereign immunity for specifically enumerated contract actions." (Emphasis in original.) Id., 311. "[It] provides in relevant part that `any person, firm or corporation which has entered into a contract with the state . . . for the design, construction, construction management, repair or alteration of any highway, bridge, building or other public works of the state or any political subdivision of the state may . . . bring an action against the state to the superior court for the judicial district of Hartford . . . [wherein] all legal defenses except governmental immunity shall be reserved to the state . . .'" Id.
"It is well settled that statutory waivers of sovereign immunity are to be strictly construed . . . Accordingly, [the court] cannot construe § 4-61 beyond its express public works exceptions because to do so would render them superfluous, as well as violate the maxim that the legislature's inclusion solely of public works contracts necessarily implies the exclusion of other contracts, including the plaintiff's lease with the state." 184 Windsor Ave., LLC v. State, supra, 274 Conn. 312. The plaintiff does not allege that the purported contract at issue in this case are the public works contracts enumerated in § 4-61.
Furthermore, the court finds that there was no contract between the plaintiff and the defendant.
"In order for an enforceable contract to exist, the court must find that the parties' minds had truly met . . . If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make . . . [A]n agreement must be definite and certain as to its terms and requirements." (Internal quotation marks omitted.) Electrical Wholesalers, Inc. v. M.J.B. Corp., 99 Conn.App. 294, 302, 912 A.2d 1117 (2007). "The question is not what intention existed in the minds of the parties but what intention is expressed in the language used." (Internal quotation marks omitted.) Leonard Concrete Pipe Co. v. C.W. Blakeslee Sons, Inc., 178 Conn. 594, 598, CT Page 19226 424 A.2d 277 (1979). "[T]o support contractual liability, the defendants' representations must be sufficiently definite to manifest a present intention on the part of the defendants to undertake immediate contractual obligations to the plaintiff." (Internal quotation marks omitted.) Burnham v. Karl Gelb, P.C., 50 Conn.App. 385, 389, 717 A.2d 811 (1998), aff'd, 252 Conn. 153, 745 A.2d 178 (2000). "The existence of a contract is a question of fact . . ." (Internal quotation marks omitted.) Electrical Wholesalers, Inc. v. M.J.B. Corp., supra, 99 Conn.App. 301.
In its amended complaint, the plaintiff alleges that the defendant "issued an `Invitation for Proposals for Construction, Management and Maintenance of an Aviation-related Facility at Groton-New London Airport, New London, Connecticut' . . . holding the prospective leasehold and development rights out for public bid." (Plaintiff's Amended Complaint ¶ 6.) The plaintiff further alleges that the invitation "called for submission of sealed proposals on a competitive negotiated basis for construction and management of an aviation-related facility." (Plaintiff's Amended Complaint ¶ 7.) In ¶ fifteen of the amended complaint, the plaintiff alleges that the defendant "awarded the plaintiff the leasehold and development rights, and stated that the plaintiff would be "contacted soon to schedule meeting dates and begin the agreement negotiation process." The plaintiff also alleges that, by letter dated March 28, 2006, the defendant communicated the following requirements: construction plans to be submitted and a temporary agreement signed no later than April 28, 2006; site work construction to start May 1, 2006; hangar construction to start June 1, 2006; and project to be completed in December 2006. (Plaintiff's Amended Complaint ¶ 28.) In response to the defendant's letter, the plaintiff proposed that construction start in Spring, 2007. (Plaintiff's Amended Complaint ¶ 31.) In addition, both parties submitted a copy of the invitation for proposals which includes the following statement: "The Commissioner, at his sole discretion shall have the right to rescind without prejudice his selection and cancel all negotiations and terminate the proposal process at any time prior to the State's execution of the final agreement, without recourse by the selected Proposer." (Defendant's Exhibit B Plaintiff's Exhibit 2.) The record demonstrates that the plaintiff's argument that by accepting the plaintiff's proposal the defendant accepted the plaintiff's offer creating a binding contract is without merit. It is clear from the plaintiff's allegations that their parties minds did not meet, that the negotiation process has not been successfully completed and that the parties did not enter a final, or any, agreement. Construing the allegations in a manner most favorable to the plaintiff, the court finds the plaintiff's allegations insufficient to demonstrate that contractual relationship existed between the plaintiff and the defendant or that the plaintiff's reliance to the defendant's alleged promises was reasonable.
Therefore, the § 4-61 waiver does not apply to the plaintiff's claims for monetary damages arising from the alleged contractual relationship between the plaintiff and the defendant. All other claims for money damages against the state are governed by General Statutes § 4-142 which provides: "There shall be a Claims Commissioner who shall hear and determine all claims against the state except: (1) Claims for the periodic payment of disability, pension, retirement or other employment benefits; (2) claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts; (3) claims for which an administrative hearing procedure otherwise is established by law; (4) requests by political subdivisions of the state for the payment of grants in lieu of taxes; and (5) claims for the refund of taxes." (Internal quotation marks omitted.) 184 Windsor Avenue, LLC v. State, supra, 274 Conn. 310. "[O]ur legislature has created an alternative mechanism for reviewing breach of contract claims so as to ensure due process and [the court] know[s] of [no authority] standing for the proposition that recourse to the claims commissioner is an inadequate remedy as a matter of law." (Internal quotation marks omitted.) Id., 313.
The only claims upon which suit otherwise is authorized by law are the claims authorized by General Statutes § 4-61, as discussed above.
In the present case, it is undisputed that the plaintiff did not file its claims with the claims commissioner prior to commencing this action. In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the defendant for monetary damages. Therefore, with respect to its claims for monetary damages, the plaintiff failed to overcome the presumption of sovereign immunity by demonstrating that the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity.
With respect to the plaintiff's claims for injunctive relief, in order to circumvent the doctrine of sovereign immunity, the plaintiff must show that "the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Fleming, supra, 284 Conn. 258. "[W]here no substantial claim is made that the defendant officer is acting pursuant to an unconstitutional enactment or in excess of his statutory authority, the purpose of the sovereign immunity doctrine requires dismissal of the suit for want of jurisdiction." (Internal quotation marks omitted.) Horton v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977). "[The Supreme Court] ha[s] excepted declaratory and injunctive relief from the sovereign immunity doctrine on the ground that a court may fashion these remedies in such a manner as to minimize disruption of government and to afford an opportunity for voluntary compliance with the judgment." (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 317, 828 A.2d 549 (2003). Moreover, "[t]he state is subject to suit without consent . . . in a suit for injunctive relief when the action does not defeat the purpose of the doctrine of sovereign immunity by undue interference with governmental functions." (Internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 328, 709 A.2d 1089 (1998).
In the present case, the plaintiff does not claim that the defendant acted pursuant to an unconstitutional statute. As the court finds that there was no contractual relationship between the plaintiff and the defendant and that the plaintiff's belief that the contractual relationship existed was not reasonable under the circumstances, the plaintiff's allegations in counts one, two, four and five are insufficient to demonstrate that the defendant acted in excess of statutory authority. Moreover, an injunction ordering the defendant to enter into contract with the plaintiff is not a remedy that would "minimize disruption of government and afford an opportunity for voluntary compliance." In addition, the plaintiff's claims in counts one, two, four and five are claims for monetary damages rather than for injunctive or declaratory relief. Therefore, the court finds that, in its claims set forth in counts one, two, four and five, the plaintiff failed to overcome the presumption of sovereign immunity by showing that the defendant acted in excess of statutory authority, or pursuant to an unconstitutional statute and, therefore, these claims are barred by the doctrine of sovereign immunity.
Accordingly, the court is without jurisdiction to hear the plaintiff's claims in counts one, two, four and five and these claims are dismissed.
B Count Three
In count three of its amended complaint, the plaintiff alleges that the defendant committed fraud, from which it can be inferred that the defendant purportedly acted in excess of statutory authority.
"Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action . . . The four essential elements of fraud are (1) that a false representation of fact was made; (2) that the party making the representation knew it to be false; (3) that the representation was made to induce action by the other party; and (4) that the other party did so act to her detriment." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 729-30, 916 A.2d 834 (2007). "Because specific acts must be pleaded, the mere allegation that a fraud has been perpetrated is insufficient." Id., 730. "In equity, as in law, misrepresentation, to constitute fraud, must be material . . . That is to say, the representation must prejudice the party relying upon it." (Internal quotation marks omitted.) McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 519, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).
In count three, the plaintiff alleges that the defendant made representations of fact to the plaintiff that it would honor its agreement and permit the plaintiff to lease and develop the subject property; that the defendant knew that its representations were false when made; that the representations were made to induce the plaintiff into a false sense of security with respect to the project until such time as the defendant could find another party interested in developing it; that " if the defendant's action is permitted to stand, the defendant's action will have induced the plaintiff to act to its detriment" and that the defendant's fraudulent actions "render it liable to the plaintiff for damages." (Emphasis added.)
The plaintiff's allegations in count three are insufficient to overcome a sovereign immunity bar. "[W]here no substantial claim is made that the defendant officer is acting . . . in excess of his statutory authority, the purpose of the sovereign immunity doctrine requires dismissal of the suit for want of jurisdiction." (Internal quotation marks omitted.) Horton v. Meskill, supra, 172 Conn. 624. Here, the plaintiff failed to allege specific facts to demonstrate fraud. The plaintiff alleges that the defendant's actions "will have induced the plaintiff to act to its detriment" if they are permitted to stand. It can be inferred from this allegation that the defendant's actions have not yet induced the plaintiff to act, in which case, the plaintiff has not standing to bring the claim of fraud as it is not yet aggrieved. Moreover, the plaintiff asserts that the defendant's actions render the defendant liable for damages. Therefore, the plaintiff's fraud claim in count three is a claim for monetary damages, not a claim for injunctive relieve and, as such, must be filed with the claims commissioner pursuant to General Statutes § 4-142.
The court finds that the plaintiff's fraud claim is barred by the doctrine of sovereign immunity because it is a claim for money damages and there is no statutory waiver of immunity and because the plaintiff failed to file this claim with the claims commissioner. Accordingly, the court is without the jurisdiction to hear the plaintiff's fraud claim and count three of the plaintiff's amended complaint is dismissed.
C Count Six
The defendant moves to dismiss count six of the plaintiff's amended complaint, for denial of due process and equal protection, on the grounds that the plaintiff failed to set forth a property interest protected by due process and failed to allege the deprivation of an actual constitutional right. The defendant argues as follows. The plaintiff failed to allege an incursion on a constitutionally protected interest. The right upon which the plaintiff's claim is based has neither of the characteristics necessary to qualify as a protected property interest under the due process clause, i.e., it involves neither extreme dependence nor permanence. The plaintiff is a sophisticated business entity and does not depend on the defendant for its well-being or survival. The relationship between the plaintiff and the defendant was not permanent. The defendant reserved the right to cancel negotiations and terminate the proposal process at any time prior to the defendant's execution of the final agreement, without recourse by the selected proposer. Even if the plaintiff had a protected interest, the availability of recourse to the claims commissioner is fatal to the plaintiff's due process claim because it provides all the process that is due. The interest upon which the plaintiff's claim is based is purely monetary and arises out of a commercial transaction. The available recourse, i.e., the submission of the claim to the claims commissioner, creates very little risk that the plaintiff's interest will be erroneously abridged. The defendant is the operator of the airport and, as such, it is responsible to see that the airport operates efficiently and within the requirements of the law and its grant agreements with the federal aviation administration, and must have the flexibility to make decisions to allow it to do so. The plaintiff's claim under the equal protection clause is barred because the plaintiff has failed to allege the deprivation of an actual constitutional right. There are no allegations of purposeful discrimination aimed at an identifiable or suspect class, nor are there any allegations that a regulation or statute has been applied in a manner that would deprive a person of equal protection, showing selective treatment based on impermissible considerations. The plaintiff failed to allege any facts to support the assertion that the defendants solicited the plaintiff's competitor or that they engaged in fraud or favoritism. The assertions in the complaint are conclusory statements without any demonstrable basis in fact and are not sufficient to confer jurisdiction on a court.
Specifically, the defendant argues that the conversations the defendant had with Lanmar, another tenant operating an FBO at the airport, were no more "covert, collusive and conspiratorial" than the conversation the defendants had with the plaintiff which led to the RFP in question. The assertions that the defendants terminated the RFP process with the plaintiff to allow Lanmar to develop the subject parcel are without factual support. The defendant terminated the process without regard to Lanmar and despite Lanmar's request for the parcel and the defendant will not allow any development of the parcel until such time as the airport's minimum standards are complete.
The plaintiff counters that the defendant's award of the contract to the plaintiff created an entitlement to the benefits of that contract cognizable under the due process clause. The plaintiff argues as follows. The defendant denied the plaintiff equal protection of law by permitting competitors to bid on the same project after the award to the plaintiff. The plaintiff's allegation that the contract was formed by the defendant's award of the leasehold and development rights to the plaintiff is sufficient to demonstrate the existence of protected property interest. What is at stake are not mere contract rights, but bona fide property interests in a long term lease with development rights and a license to operate an air navigation facility of the subject premises. Also, the plaintiff's interest in the continuation of the leasehold and development rights awarded by the state is vital and paramount. The project is critically important to the plaintiff's operations at the airport, as well as its general financial well-being, and the state should not be permitted to unilaterally revoke these rights while dealing covertly with the plaintiff's competitors. The defendant's dealings with the plaintiff's competitor and its interference with fair competition at the airport violated the plaintiff's right to equal protection of the law. The defendant failed to provide a level playing field to these similarly situated entities and has provided illegal assistance to the plaintiff's competition. In light of the defendant's dissimilar treatment of one of the two competitors, it has violated the plaintiff's rights to equal protection.
"In a constitutional democracy sovereign immunity must relax its bar when suits against the government complain of unconstitutional acts." (Internal quotation marks omitted.) Pamela B. v. Ment, supra, 244 Conn. 328. Nevertheless, "the allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests." Barde v. Board of Trustees, 207 Conn. 59, 64, 539 A.2d 1000 (1988). "Whether one's interest or entitlement rises to the level of a protected property right depends upon the extent to which one has been made secure by [s]tate or [f]ederal law in its enjoyment." (Internal quotation marks omitted.) 184 Windsor Avenue, LLC v. State, supra, 274 Conn. 319.
The court finds the defendant's argument persuasive.
The plaintiff first claims that its due process rights have been violated. "The fourteenth amendment to the United States constitution prohibits any state from depriving any person of `life, liberty, or property, without due process of law.' Article one, section eight of our state constitution contains the same prohibition and is given the same effect as the fourteenth amendment to the federal constitution." (Internal quotation marks omitted.) Barde v. Board of Trustees, supra, 207 Conn. 64. "The [fourteenth [a]mendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired . . ." (Emphasis in original; internal quotation marks omitted.) Id.
In the present case, because the court has already found that the plaintiff's allegations fail to establish that the plaintiff and the defendant entered into a binding contract, the court finds that the plaintiff has no constitutionally protected property or liberty interest. Therefore, the plaintiff has no standing to assert the violation of due process and it's due process claim is barred by the doctrine of sovereign immunity.
See part IA of this memorandum of decision.
The plaintiff next claims that it has been denied the equal protection of the law. "The federal equal protection clause, § 1, of the fourteenth amendment to the United States constitution provides in relevant part: `No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.'" Walsh v. Jodoin, 283 Conn. 187, 200 n. 14, 925 A.2d 1086 (2007). "Article first, § 20, of the Connecticut constitution contains similar language. This court has many times noted that equal protection clauses of the state and federal constitutions have a like meaning and impose similar constitutional limitations." (Internal quotation marks omitted.) Barde v. Board of Trustees, supra, 207 Conn. 65. "The Equal Protection Clause is not addressed to the minimal sufficiency but rather to the unjustifiable inequalities of state action. It mandates nothing less than that all persons similarly circumstanced shall be treated alike." (Internal quotation marks omitted.) Id.
The essence of the plaintiff's claim is that, although similarly situated, the plaintiff and its competitor, Lanmar, were not treated alike. The Affidavit of Jeffrey Stewart, the transportation director of leasing operations and revenue for the DOT Bureau of Aviation and Ports (Defendant's Exhibit C), a copy of a letter from Lanmar to the defendant, dated August 1, 2006 (Defendant's Exhibit D) and the defendant's response to that letter, dated August 21, 2006 (Defendant's Exhibit E), however, refute the plaintiff's allegations, by demonstrating that the plaintiff and Lanmar have been treated equally with respect to awards of development rights and that Lanmar has been denied its request to be awarded the right to expand to the subject parcel even after the defendant rescinded its award to the plaintiff. Therefore, it is evident that the factual basis for the equal protection claim does not exist.
The court finds that the constitutional claims have not been established and, thus, the plaintiff's due process and equal protection claims are barred by the doctrine of sovereign immunity. Accordingly, the court is without jurisdiction to hear the plaintiff's due process and equal protection claim and count six of the plaintiff's amended complaint is dismissed.
D Count Seven
The defendant moves to dismiss count seven, for violation of Connecticut Antitrust Act, General Statutes § 35-24, et seq. (the Act), of the plaintiff's amended complaint on the ground that the defendant is not a subject to suit pursuant to the Act. The defendant argues that the plaintiff's antitrust claim is barred by a doctrine of sovereign immunity as the plaintiff does not assert, nor can it assert, that the Act, by express terms or necessary implications, waives the sovereign immunity.
The plaintiff argues that the defendant is subject to the Act for the following reasons. Since the Act applies to municipalities, because the definition of a "person" under the Act is very broad, there is no legitimate basis to except the state from the general application of the Act for unlawful conduct. Strong public policy arguments support the application of the Act to the defendant's conduct.
Exceptions to the doctrine of sovereign immunity are narrowly construed. C.R. Klewin Northeast, LLC v. Fleming, supra, 284 Conn. 258. "[The Supreme] [C]ourt has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Internal quotation marks omitted.) Id., 259. "As a matter of public policy, [a] sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." (Internal quotation marks omitted.) 184 Windson Avenue, LLC, v. State, supra, 274 Conn. 309.
In the present case, the plaintiff does not allege or argue that the Act provides for a waiver of sovereign immunity. The court finds the plaintiff's argument that the definition of a "person" under the Act should include the state of Connecticut because it includes a municipality unpersuasive. In the absence of statutory waiver of sovereign immunity for the purpose of bringing an action under the Act and in the absence of caselaw expanding definition of a "person" under the Act to include the state of Connecticut, the court declines to interpret a "person" as including the state of Connecticut, i.e., the defendant. Therefore, the plaintiff's claim in count seven is barred by the doctrine of sovereign immunity.
Accordingly, the court is without jurisdiction to hear the plaintiff's claim that the defendant violated Connecticut Antitrust Act and count seven of the plaintiff's amended complain is dismissed.
II ADMINISTRATIVE APPEAL
The defendant moves to dismiss count eight of the plaintiff's amended complaint on the ground that the present action is not an administrative appeal. The defendant asserts that since there has been no contested case or declaratory ruling issued in the matter which the plaintiff is appealing, there can be no administrative appeal. Specifically, the defendant argues as follows. Despite the plaintiff's claim that it holds a certificate or license to operate a restricted landing area and air navigation facility pursuant to General Statutes § 13b-46, there is nothing in the plain language of the statute that would support the plaintiff's contention that the process it went through to expand its FBO business was in any way related to a certificate or license to operate. The airport is owned and operated by the state and the state license and the FAA certificate are each held by the state. Contrary to the plaintiff's assertions, the invitation for proposals was undertaken pursuant to General Statutes § 13b-42(b) which is in chapter 242, not pursuant to § 15-75 or any other provision in chapter 266. Even if § 15-75 applies, allowing for the appeals to be taken in accordance with the provision of § 4-183, the plaintiff is not entitled to appeal directly to the Superior Court because it was not aggrieved by a "final decision," as required by § 4-183(a). The plaintiff is not aggrieved by a final decision of the state because there has not been an agency determination in a contested case, as there has been no contested case as defined in General Statutes § 4-166(2). Nor has there been a declaratory ruling issued pursuant to § 4-176 or a decision made after reconsideration. The provisions of § 4-183(b) do not apply because these defects mean that the plaintiff will not otherwise qualify under chapter 54 to appeal from the final agency decision. Furthermore, the postponement of an appeal will not result in an inadequate remedy, since there is no remedy available under § 4-183. The plaintiff's bold assertion that it has exhausted all available administrative remedies is not supported by facts.
The plaintiff counters that this case presents a proper administrative appeal because the defendant's order terminating the invitation for proposals process was the refusal to issue a certificate of approval or license or renewal of a license for an air navigation facility pursuant to and in violation of General Statutes § 15-66. The plaintiff argues as follows. Because the right to construct, manage and maintain an aviation-related facility is inextricably linked to the issuance by the commissioner of a license to operate, the plaintiff's proposal served as an application for a certificate of approval or license to operate a restricted landing area and air navigation facility on the subject parcel. By issuing the award letter, the defendant in effect authorized the plaintiff to proceed with construction, which constituted de facto award of a certificate of approval and or a license to so operate. The defendant's subsequent letter terminating the plaintiff's leasehold, development and operation rights, constituted an order revoking a license within the meaning of General Statutes § 15-66. The defendant's decision was "an action of the commissioner" within the meaning of that statute, requiring that the defendant to set forth reasons for the termination, which the defendant failed to do. The defendant's decision to terminate the process is subject to judicial review via appeal directly to the Superior Court because the defendant's order terminating the plaintiff's rights and licenses was an exercise of authority under General Statutes § 15-75 and was made in violation of provisions of chapter 266, from which the plaintiff is aggrieved. The procedure in such appeal is the same as that provided in § 14-134, i.e., in accordance with § 4-183, which provides for an appeal, as of right, directly to the Superior Court. In the alternative, the plaintiff will otherwise qualify under General Statutes § 4-183, and postponement of the appeal would result in an inadequate remedy. The plaintiff exhausted administrative remedies available within the agency, and is aggrieved by a final decision.
"There is no absolute right of appeal to the courts from a decision of an administrative agency . . . The UAPA grants the Superior Court jurisdiction over appeals of agency decisions only in certain limited and well delineated circumstances . . . Judicial review of an administrative decision is governed by . . . § 4-183(a) of the UAPA, which provides that [a] person who has exhausted all administrative remedies . . . and who is aggrieved by a final decision may appeal to the superior court . . . A final decision is defined in § 4-166(3)(A) as the agency determination in a contested case . . ." (Internal quotation marks omitted.) Ferguson Mechanical Co. v. Dept. of Public Works, supra, 282 Conn. 771. "A contested case is defined in § 4-166(2) as a proceeding . . . in which the legal rights, duties or privileges of a party are required by state statute or regulation to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . . Not every matter or issue determined by an agency qualifies for contested case status . . . [The Supreme Court] ha[s] determined that even in a case where a hearing is in fact held, in order to constitute a contested case, a party to that hearing must have enjoyed a statutory [or regulatory] right to have his legal rights, duties or privileges determined by that agency holding the hearing . . . In the instance where no party to a hearing enjoys such a right, the Superior Court is without jurisdiction over any appeal from that agency's determination." (Emphasis in original; internal quotation marks omitted.) Id., 771-72.
"A party seeking review of a state agency's action, therefore, must establish more than aggrievement (injury in fact); he must establish that the injury resulted from a final decision in a contested case . . . The test for determining contested case status has been well established and requires an inquiry into three criteria, to wit: (1) whether a legal right, duty or privilege is at issue, (2) and is statutorily [or regulatorily] required to be determined by the agency, (3) through an opportunity for hearing or in which a hearing is in fact held." (Citation omitted; internal quotation marks omitted.) Ferguson Mechanical Co. v. Dept. of Public Works, supra, 282 Conn. 772.
"A hearing is generally defined as a [p]roceeding of relative formality . . . generally public, with definite issues of fact and of law to be tried, in which . . . parties proceeded against have [a] right to be heard . . . In order for a proceeding to qualify as a `hearing' for the purposes of § 4-166(2), the party must have a statutory or regulatory right to be heard by the agency. (Internal quotation marks omitted.) Ferguson Mechanical Co. v. Dept. of Public Works, supra, 282 Conn. 773.
In the present case, the plaintiff failed to exhaust administrative remedies which is required under § 4-183(a) of the UAPA. It is undisputed that the plaintiff did not file a claim with the claims commissioner as required by General Statutes § 4-142.
Furthermore, even if the court were to assume that the plaintiff exhausted all administrative remedies and that the plaintiff has a legal right or privilege as a proposer whose proposal has been accepted by the defendant, "the plaintiff still cannot prevail unless the [the department was] statutorily [or regulatorily] required to determine the plaintiff's legal right or privilege . . . in a hearing." (Emphasis in original; internal quotation marks omitted.) Ferguson Mechanical Co. v. Dept of Public Works, supra, 282 Conn. 773. Here, the invitation for proposals procedure is governed by General Statutes § 13b-42, which does not provide for a hearing. The plaintiff's argument that the award letter was a de facto license or a certificate of approval to operate a landing area is without merit as it is the state that holds the license to operate the landing area. Moreover, General Statutes § 13b-46 provides a procedure for obtaining certificate of approval to construct landing area and for obtaining a license to operate a landing area. It is clear from the plaintiff's allegations that the plaintiff did not apply for a certificate of approval to construct or a license to operate a landing area at issue in the present case. Therefore, the plaintiff is not entitled to a hearing pursuant to General Statutes § 13b-48.
The court finds that, because the defendant was not under a statutory or regulatory mandate to conduct a hearing with respect to the plaintiff's allegations, there was no agency determination in a contested case. Therefore, the plaintiff has no right to judicial review of the defendant's decision because it was not aggrieved by a final decision required to trigger judicial review pursuant to the UAPA.
Accordingly, the court is without jurisdiction to hear the plaintiff's appeal from the defendant's decision and count eight is dismissed.
CONCLUSION
For reasons set forth above, the defendant's motion to dismiss is granted.