Opinion
No. CV08-4016652S
November 7, 2008
MEMORANDUM OF DECISION #114
This matter came before the court on the defendants' motion to strike the plaintiffs' complaint and prayer for relief on the grounds that (1) there was a non-joinder of necessary and indispensable parties, (2) the plaintiffs failed to give reasonable notice to all interested parties and (3) the plaintiffs failed to append to the complaint a certificate stating that all interested persons have been joined as parties or given reasonable notice.
FACTS
On June 16, 2008, the plaintiffs, Louis Galla, Bernard Beauchamp, Rosalie Loughran, Gary D'Amico, Gary Martin, and Maryann Rosa commenced this action by service of process against the defendants, Frank Jodaitis, Charles A. Frigon, Frank J. Nardeli, Jr., Joan Mondak, Elaine H. Adams, Gary L. Bernier, David J. Demirs, Richard Difederico, Richard Fusco, Carl R. Mancini, Scott F. Marotta, Raymond F. Primini and Paul H. Rinaldi. The plaintiffs filed a one-count complaint in which they alleged the following facts. The plaintiffs are residents, voters and taxpayers of the Town of Watertown (Watertown), a municipal corporation of the State of Connecticut. The Watertown water and sewer authority (Water Authority) is a subordinate body of the town council of Watertown (town council) which operates a water supply system to a portion of Watertown. The plaintiffs are not users of the Water Authority water supply system.
The plaintiffs, Gallo, Beauchamp, Loughran and D'Amico, are members, voters and taxpayers of the Watertown fire district, a municipal corporation which operates its own water system. These plaintiffs pay the Watertown fire district for water usage and other services including sewer service. The plaintiffs, Martin and Rosa, are taxpayers of the town of Watertown and reside outside the Watertown fire district, but are not users of the water system operated and maintained by the Watertown water and sewer authority and do not benefit from a municipal water system service.
Frank Jodaitis, superintendent of the Watertown Authority, supervises the operations of the Water Authority. Charles Frigon is the town manager of Watertown. Joan Mondak is the treasurer of Watertown. Elaine Adams is the chairman and Raymond Primini is the vice chairman of the town council. Gary Bernier, David J. Demirs, Richard Fusco, Carl Mancini, Scott Marotta and Paul H. Rinaldi are members of the town council.
The principal administrative officer of the Water Authority is the town manager of Watertown who is appointed by the town council.
The Water Authority maintains the infrastructure necessary to distribute water, including the water storage tanks. These tanks are in need of general maintenance, repair and painting (the storage tank project) at an estimated cost of $1,553,031.68. The Water Authority sets rates for its customers and has been operating in excess of costs, accumulating a surplus which is greater than the estimated amount needed for the storage tank project. The Water Authority, however, requested that the town council use general tax revenue to pay for fifty percent of the storage tank project's cost. Watertown subsequently entered into a memorandum of understanding with the Water Authority, agreeing to the terms of its request.
The plaintiffs contend this money should not come from Watertown's general fund because it is not for the general benefit of Watertown as a whole, rather, it is a special benefit to only the users of the water system maintained by the Water Authority. The plaintiffs claim such a payment from the general fund would violate the equal protection clauses of the Constitutions of the United States and of the State of Connecticut. Additionally, they claim that this type of payment from Watertown's general fund violates Sections IV.1, IV.2, and IV.4 of the Consolidation Ordinance of the town of Watertown and Chapter 102 of the General Statutes. Thus, if such payments from the general fund are made, the plaintiffs will allegedly suffer irreparable harm because they will be paying an unequal burden of taxes with no adequate remedy at law.
Code of Ordinances, Section 32-81 provides: "It is the intent of this article that expenditures in the town shall be financed insofar as possible in equitable proportion to the benefits and services received by its inhabitants. The costs of services, facilities and improvements which are of general benefit and for general governmental purposes shall be borne by all the inhabitants of the town."
Code of Ordinances, Section 32-82, provides: "As of the effective date of the ordinance from which this article derived, certain services, facilities and improvements are not deemed of general benefit to the town but benefit specially some distinct area of the town or a particular segment of the inhabitants of the town. These special benefits and general benefits may be redefined from time to time by ordinance of the town council upon recommendation of the water and sewer authority."
Code of Ordinances, Section 32-84 provides: "No general tax shall be levied on the town to provide for the costs of special benefits and no appropriation shall be introduced or passed by the town council to place any burden therefor on the town with respect thereto except as provided in section 32-86, but the costs of special benefits shall be provided by special assessments, user service charges, special taxes or other charges made against the persons or areas receiving the special benefits, the costs of which shall be met as provided in this article.
"Nothing in this article shall be construed as to prevent the town from paying as a general governmental function costs of public fire protection involved in the usage and servicing of fire hydrants and the servicing of public lands, improvements and buildings of the town, or other purposes which the town council may from time to time designate by ordinance."
General Statutes (7-234 provides in relevant part: "Any town . . . may acquire, construct and operate a municipal water supply system where (1) there is no existing private waterworks system, (2) the owner or owners of a private waterworks system are willing to sell or transfer all or part of such system to the municipality, or (3) a public regional waterworks system within said town, city or borough or district is willing to sell or transfer all or part of the system to the municipality. The franchise jurisdiction of the municipal water supply system shall be enlarged . . . [or] reduced, by special act."
General Statutes § 7-239 provides in relevant part: "The legislative body shall establish just and equitable rates or charges for the use of the waterworks system authorized herein, to be paid by the owner of each lot or building which is connected with and uses such system, and may change such rates or charges from time to time. Such rates or charges shall be sufficient in each year for the payment of the expense of operation, repair, replacements and maintenance of such system and for the payment of the sums herein required to be paid into the sinking fund."
In their prayer for relief, the plaintiffs pray for the following: (1) a declaratory judgment determining (a) whether Watertown should use money from the general fund revenue to pay for the repair of the water storage tanks and (b) whether the payment from the general fund for this purpose would be illegal, improper and in violation of the provision of the consolidation ordinance of the town of Watertown and the General Statutes of the State of Connecticut; (2) a permanent injunction staying the defendants from making payments from the general fund to the Water Authority for the repair of the water storage tanks; (3) counsel fees; and (4) such other fair and equitable relief.
On August 15, 2008, the defendants filed a motion to strike the complaint and prayer for relief. The defendants submitted a memorandum of law in support of the motion. On October 6, 2008, the plaintiffs filed a memorandum of law in opposition.
The matter was heard at short calendar on October 6, 2008.
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 [ 3 Conn. L. Rptr. 135] (1991).
The defendants argue in their motion to strike that the complaint and prayer for relief should be stricken in their entirety on the grounds that (1) there was a nonjoinder of necessary and indispensable parties, (2) the plaintiffs failed to give reasonable notice to all interested parties and (3) the plaintiffs failed to append to the complaint a certificate stating that all interested persons have been joined as parties or given reasonable notice. It is the defendants' position that because the plaintiffs seek a declaratory judgment which requires the court's interpretation of Watertown's Charter and the Watertown Water and Sewer Consolidation Ordinance, any such court interpretation would also directly affect Watertown and the Water Authority as these documents define their powers, duties, obligations and procedures. The defendants further assert that the actions of the town council and Watertown were based on the town council's interpretation of the Charter and Ordinance and because these two entities are not joined as parties to this action, the court is deprived of input on their reasoning, interpretation and other important information needed to render a decision in this case. Additionally, the defendants argue that the plaintiffs seek a permanent injunction against Watertown and the town council in their prayer for relief, which would have a direct effect on those two entities. Based on this information, the defendants argue that Watertown, the town council and the Water Authority are necessary and indispensable parties to this action.
In their memorandum in opposition, the plaintiffs assert that, although the action has not been brought against Watertown or the town council directly, it has been commenced against all members of the town council as well as against those town officials who would pay out the general tax revenues for this improper purpose. The plaintiffs further argue that because the lack of a certificate is a matter of form and, therefore, not a substantive issue, the motion to strike should not be granted on that ground. In the alternative, the plaintiffs request that they be given a reasonable amount of time in which to amend their complaint to name the town as an actual defendant and furnish the § 17-56(b) certificate notice.
"Practice Book § 10-39(a) provides in relevant part: Whenever any party wishes to contest . . . (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or, pursuant to Section 17-56(b), the failure to join or give notice to any interested person . . . that party may do so by filing a motion to strike the contested pleading or part thereof." (Internal quotation marks omitted.) 37 Huntington Street, H, LLC v. Hartford, 62 Conn.App. 586, 591 n. 8, 772 A.2d 633, cert. denied, 256 Conn. 914, 772 A.2d 1127 (2001). "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." (Internal quotation marks omitted.) Pathways, Inc. v. Planning Zoning Commission, 259 Conn. 619, 622 n. 5, 793 A.2d 222 (2002).
"Joinder of indispensable parties is mandated 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]." (Internal quotation marks omitted.) Hilton v. New Haven, 233 Conn. 701, 722-23, 661 A.2d 973 (1995). "Parties have been characterized as 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 termination may be wholly inconsistent with equity and good conscience . . . Necessary parties, however, have been described as persons 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 in it . . . But 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 . . .
"The distinction between the mandatory-indispensable party whose absence requires the court to strike the complaint and the so-called necessary party is whether the action will prejudice that party's rights. If so, they are indispensable; if not, then not. The optional category of other parties without whom a complete determination cannot be had are those who have an interest in the case and whose presence is necessary to do complete justice by adjusting all the rights involved, but who are not indispensable because their absence will not prejudice their rights." (Internal quotation marks omitted.) Lukaskik v. Banknorth National Association, Superior Court, judicial district of New Britain, Docket No. CV 04 4001336 (April 26, 2005, Burke, J.).
Practice Book § 17-56(b) provides in relevant part: "All persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof. If the proceeding involves the validity of a municipal ordinance, persons interested in the subject matter of the declaratory judgment shall include such municipality . . .
"The party seeking the declaratory judgment shall append to its complaint or counterclaim a certificate stating that all such interested persons have been joined as parties to the action or have been given reasonable notice thereof. If notice was given, the certificate shall list the names, if known, of all such persons, the nature of their interest and the manner of notice."
In the present case, the plaintiffs are seeking a declaratory judgment injunction against Watertown. The plaintiffs have not joined Watertown as a defendant to the action, nor have they attached the proper certificate. If the plaintiffs succeed in their action, the result would have a direct and immediate impact on the interests of Watertown as it would prevent the use of the general revenue fund in accordance with the memorandum of understanding entered into with the Water Authority. The plaintiffs also seek a permanent injunction against the defendants which include members of the town council in their official capacity. Consequently, such an injunction would also have an affect on the powers and duties of the town council as a whole. Additionally, the rights of the Water Authority would be at issue. If the plaintiffs obtain a permanent injunction prohibiting payment to the Water Authority by Watertown, it would prevent the Water Authority from receiving the agreed-upon funds for the storage tank project.
According to the memorandum of understanding, Watertown is obligated to pay from its general tax revenue one-half the cost of the storage tank project to the Water Authority.
Code of Ordinances, Section 32-82, provides in relevant part: "[S]pecial benefits and general benefits may be redefined from time to time by ordinance of the town council upon recommendation of the water and sewer authority." Since the determination of whether the storage tank project is a special or general benefit is within the power of the town council, by recommendation of the Water Authority, any declaratory judgment on this issue would affect the rights and responsibilities of these two entities.
Accordingly, the rights of Watertown, the town council and the Water Authority would be prejudicially affected if they are not joined as a party, making them indispensable parties.
"General Statutes § 52-108 and Practice Book § 100 both explicitly provide that nonjoinder does not defeat an action." W.G. Glenney Co. v. Bianco, 27 Conn.App. 199, 202, 604 A.2d 1345 (1992). Section 52-108 provides in relevant part: "An action shall not be defeated by the nonjoinder . . . of parties. New parties may be added and summoned in . . . by order of the court, at any stage of the action, as the court deems the interests of justice require." "[W]ithout the presence of [a] necessary party the court [cannot] fully adjudicate the matter before it . . . In these circumstances, the trial court should [afford] the plaintiff a reasonable opportunity to cite in the necessary party. Upon failure of the plaintiff to do so the court, on its own motion with proper notice, [may strike] the complaint for nonjoinder." (Citations omitted.) Meredith v. Police Commission, 182 Conn. 138, 141, 438 A.2d 27 (1980).
For the above stated reasons the court grants the plaintiffs a period of forty-five days to amend their complaint, notify all interested parties, and attach the appropriate § 17-56(b) certificate notice. Consequently, the defendants' motion to strike is denied at this time. However, should the plaintiffs fail to join the appropriate parties within forty-five days, the court will revisit and reconsider this denial of the motion to strike.