Opinion
HHDCV126033159S
12-12-2017
TOWN OF CHESHIRE v. STATE of Connecticut, DEPARTMENT OF CORRECTION
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, J.
The plaintiff, the Town of Cheshire (Town), initiated this action against the Connecticut Department of Corrections (DOC), on the ground that it suffered damages as a consequence of an unpaid for discharge of effluence into the Town’s wastewater treatment plant (WWTP) from facilities and buildings owned and operated by the DOC as a prison complex (Prison Complex). The Town’s complaint asserts causes of action for breach of contract, quantum meruit and injunctive relief. For the reasons detailed below, the court finds in favor of the DOC as to the breach of contract and injunctive relief claims, and in favor of the Town on the basis of quantum meruit. The court awards damages in the amount of $1,453,607.30, which represents the actual amount of services it provided for wastewater treatment for which it was not paid by the DOC. The court, however, does not award interest on these damages and finds against the Town on its claim for a proportionate reimbursement from the DOC for a wastewater Facility Plan.
I
Procedural History
The Town brought this action on June 21, 2012. The original complaint alleged that the DOC discharged more wastewater from its Prison Complex than that for which it had paid as a result of a meter limited in the amount of flow it could record. Furthermore, the wastewater flow was alleged to be in excess of amounts for which the DOC had contracted pursuant to an October 31, 1990 purported contract between the Town and the DOC (Agreement.) The original complaint sought a declaratory judgment ruling that the DOC breached an agreement with the Town, damages for breach of contract and compensation for a taking in violation of the fifth amendment of the United States constitution, and article first of the Connecticut constitution.
On July 1, 2014, after obtaining permission to file an untimely claim from the General Assembly, see Special Acts 2014, No. 14-9, the Town filed a claim with the Claims Commissioner. In its notice of claim, the Town asserted two claims. The Town alleged that the DOC failed to pay for the treatment of sewage in excess of that reported by a flow meter. The Town sought interest on the unpaid amounts. Second, the Town sought compensation for damages flowing from the discharge of sewage from the Prison Complex in excess of the capacity it purportedly purchased. The Town asserted that the excess consumption of its treatment capabilities limited growth in the Town, required the preparation and submission of a Facilities Plan Report to the DEEP, as well as upgrades to the WWTP facilities, and claimed damages therefor. The Claims Commissioner held a formal hearing on December 14, 2015 and January 5, 2016. The parties do not dispute that the commissioner granted the Town permission to sue.
The Claims Commissioner’s Memorandum of Decision dated February 10, 2016, provided that " the allegations in the present claim are that the [DOC] failed to pay for the actual amount of service that it received due to inaccurate measurements of wastewater flow and the resultant inaccurate invoices. While the [r]espondent, through counsel, raises valid questions about the [c]laimant’s billing practices, the State did benefit from its own imprecise meters that were used to measure the flow and used to calculate the invoices. [B]ased on the evidence presented at the Formal Hearing ... the [c]laimant has provided the [r]espondent State of Connecticut the benefit of higher amounts of wastewater treatment than were reported by flow meters, and that the Town ... was underpaid for the services it provides. This is indeed a ‘just claim’ and one that the State, were it a private individual, could be liable. This matter will benefit from a further in-depth examination of the evidence at [the] Superior Court." In re Claim of Town of Cheshire, Conn. Office of the Claims Commissioner, Memorandum of Decision, Claim No. 23732 (February 10, 2016), p. 3.
The Town amended its complaint on February 29, 2016 (complaint). This remains the operative complaint. The complaint contains a similar factual predicate as the original but seeks damages for breach of contract and " underpayment for services" (respectively first and second counts). The second count alleges that the Town billed the DOC for treatment of effluent produced by the Prison Complex from 2002 through 2011 as measured by a chronically underreporting meter.
After learning of the underreporting, the Town conducted a review of the amount of discharge and made demands for payment of the shortfall, which resulted from the chronic underreporting. The rejection of these demands is claimed to have caused the Town damages. The third count demands injunctive relief to enjoin the DOC from discharging wastewater in excess of the contractually agreed upon volume. On August 15, 2016, the DOC filed its answer in which it denied the formation of a contract and the Town’s entitlement to damages or injunctive relief, and raised the special defense of sovereign immunity as to the third count.
A trial was held on January 31, 2017 and February 1, 2017. After post-trial briefing, argument was held on March 27, 2017. The court advised the parties that it intended to address the issue of whether the exception to sovereign immunity for " state officials acting in excess of their statutory authority" is properly raised where the only claims before the court were against a state agency, and permitted responsive briefs to be filed on or before June 9, 2017.
The court extends its appreciation to the parties for their extensions of the period within which to file a decision.
II
Factual Findings
As an initial matter, the court, as the trier of fact, must " weigh the evidence and determine [the] credibility of witnesses." Connecticut Light & Power Co. v. Proctor, 324 Conn. 245, 259, 152 A.3d 470 (2016). " [I]t is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony." (Emphasis omitted; internal quotation marks omitted.) Palkimas v. Fernandez, 159 Conn.App. 129, 133, 122 A.3d 704 (2015). The court, mindful that the burden of proof in civil actions is on the plaintiff to prove the essential elements of his cause of action by a fair preponderance of the evidence, see Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 615 A.2d 1087 (1992), makes the following factual findings, most of which are not in dispute.
In 1989, the General Assembly passed Number 89-853 of the 1989 Public Acts (P.A. 89-853), entitled " An Act Facilitating the Construction of Correctional Institutions, " in part to address prison overcrowding. See Public Acts 1989, No. 89-853, § 5(a)(4). The Act sought to ameliorate the effect of prison growth on affected municipal infrastructure by requiring the office of policy and management to evaluate the impact of such growth on, inter alia, municipal sewage or water facilities, and to " negotiate a written agreement with the municipality specifying the actions to be taken by the DOC and the municipality to mitigate the impact of the project or inmate population increase on the municipality." Public Acts 1989, No. 89-853, § 7. Section 7 of Public Act 89-353 was codified as General Statutes § 18-87i. Significantly, the Act also provided that if funding was not available to " carry out the obligations of the DOC under the agreement, the secretary shall make recommendations for such funding to the governor and the [general [A]ssembly." Public Acts 1989, No. 89-853, § 7. Public Acts 89-853 was repealed in 1999 by Section 13 of Number 99-75 of the 1999 Public Acts (P.A. 99-75).
The DOC owns and operates the Prison Complex in the Town of Cheshire, which is comprised of a collection of buildings consisting of three separate incarceration/prison facilities, a training facility and numerous administrative buildings. The DOC entered into the Agreement with the Town to address a variety of issues related to the construction of the Prison Complex, including road and traffic improvements, public safety and the Town’s water pollution control plant. Section 4 of the Agreement, in relevant part, provides:
The STATE hereby agrees to purchase capacity in the Town of Cheshire’s water pollution control plan in the amount of 350 thousand gallons per day (gpd) of water (135 gpd/inmate) for $1,744,000 or such amount that may ultimately result from the application of the following formula:
Cost to State = 350, 000 x Total Cost of expansion of the Facility
3, 500, 000 from a capacity of 1.5 million gpd to 3.5 million gpd
The payment of $1,744,000 by the STATE to the TOWN will serve as a grant thus augmenting the amount of the total State grant to the Town and reducing the amount of the loan by the State to the Town in conjunction with the application for funding under the Clean Water Act between the State Department of Environmental Protection (DEP) and the Town.
In 1990, the WWTP operated under permits that limited the capacity of the plant to an average daily flow of 3, 500, 000 gallons per day. The Town, through its Water Pollution Control Authority (WPCA), operates the WWTP under a National Pollution Discharge Elimination Permit (NPDES Permit) administered by the Connecticut Department of Energy and Environmental Protection (DEEP). One of the terms of the NPDES Permit required the Town to prepare a facility plan (Facility Plan) to accommodate future increases in flow at such time as the six-month moving average daily flow to the plant exceeded 90 percent of its permitted capacity.
Wastewater generated by the Prison Complex is routed through a series of drainage pipes running from building to building, ultimately traveling through a grinder and then a Parshall flume that employs a meter (Parshall flume meter) to measure the volume of discharge. The Parshall flume meter, which was owned and maintained by the DOC, was located in the Prison Complex. Discharge then flows downstream past a second meter (ADS Meter)- the latter of which was installed after 2010- and then off the property of the Prison Complex ultimately to the WWTP. The Town billed the DOC based on the amount of wastewater discharged, as measured by the Parshall Flume meter, at rates charged to industrial users within the Town. The DOC paid all bills submitted through November of 2010. In March of 2011, the Town’s WWTP superintendent, Dennis Dievert, became aware that the Parshall Flume meter had stopped recording. Dievert then notified the facilities engineer of the Prison Complex, who informed him that they were in the process of trying to get it repaired. The DOC thereafter replaced the Parshall flume meter in June of 2011. It was then discovered that the original Parshall flume meter did not register flows in excess of 500 gallons per minute (gpm). The new meter possessed a capability of registering and recording up to 750 gpm. The new meter was recalibrated in August of 2011, and immediately began to register higher daily flows.
A Parshall flume is a box-like structure, underground in this case, through which fluid flows. It is designed to measure the flow of the fluid, in the present case, sanitary sewage.
Dievert’s name is spelled " Dievert" in the Town’s various memoranda, but Divert in the trial transcript. The court will adopt the Town’s spelling of the name of its employee.
The Town was obliged to estimate the amount of flow for the December of 2010 through November of 2011 period, because there were no working meters for several months, due to the installation and recalibration of the new meter. Joseph Michelangelo, Director of Public Works for the Town, used the first full year of data with the recalibrated new meter, which reported higher flows, to determine that the discharge from the Prison Complex averaged 22.8% of the total influent processed by the WWTP from all sources. He prepared a bill using that methodology for the period from December of 2010 through November of 2011, which he submitted to the DOC and was paid in due course.
Michelangelo then performed an analysis to determine whether the amount of wastewater actually reported by the Prison Complex as a percentage of total influent processed by the WWTP, during the period between 2002 and 2010, was less than the 22.8% calculated from the new meter readings. He multiplied the amount of wastewater processed by the plant in each year, in the period from December of 2002 through November of 2010, by 22.8% to determine the amount of effluent discharge by the Prison Complex. He then took the sewer rate for each year and prepared a bill with the 22.8% contribution and arrived at a claimed shortfall in payment for wastewater treatment by the DOC in the amount of $1,453,607.30. Due to Michelangelo’s retirement, it was Dievert who issued a bill in that amount to the DOC. That bill, which is the primary subject of this litigation, remains unpaid. Apart from this unpaid bill, the DOC has paid all annual bills through 2015 that were presented to it by the Town based on the latter’s calculation of wastewater discharge derived from the DOC meter/s.
The DOC asserts that the calculation of any such shortfall is speculative. Stephen Link, the current director of facilities management and engineering for the Department of Corrections, testified that the meter upon which the Town’s calculations and billing are predicated does not provide reliable revenue grade measurements. The DOC retained Fuss & O’Neill, a civil and environmental engineering consulting firm, to perform an Infiltration and Inflow identification analysis for the sewer collection system at the Prison Complex. Its report, which was admitted as a full exhibit, cites the Town’s complaint of excessive discharge flows as one reason for the analysis, as well as concerns related to infrastructure defects causing infiltration (groundwater directly entering sanitary sewers through defective pipe joints, broken pipes and cracks in manholes) and inflow (water directly entering sanitary sewers from direct connections such as sump pumps, roof drains and catch basins) entering the sewage system. Among the significant findings were excessive levels of both inflow and infiltration. Fuss & O’Neill opined that due to large discrepancies in daily flow measurements in the Parshall flume meter, it may not have been sufficiently accurate for monthly billing needs. The report contained a recommendation that the DOC replace the Parshall flume to include a new flow measuring device.
Thereafter, Walter Gancarz, the Town Engineer, compared readings from the Parshall flume meter and the ADS meter and found they agreed to within 1 percent. He also undertook an independent analysis of the shortfall in the reporting between 2002 and 2010 with a different methodology. This methodology was based on an average composite daily flow rate per prisoner of 183 gpd. This daily flow rate was derived from the Fuss & O’Neill report prepared for the DOC. Gancarz then considered the prison population over the period between 2002 and 2010, as well as an infiltration and inflow volume. His analysis determined the difference between what was calculated to be the estimated flow rate per prisoner and the actual total reported flow to identify the percentage of the infiltration and inflow volume. Based on this analysis, Gancarz concluded that the actual amount of wastewater discharged by the DOC was underreported by the original Parshall flume meter, which was in place between 2002 and 2010. Gancarz calculated that the underreported flow rates from the original Parshall flume meter, which did not record a flow rate in excess of 500 gpm, resulted in an underpayment of $1,693,723.41. Gancarz also testified that this figure did not take into consideration significant water saving measures undertaken by the DOC during the years in question. The Town has demanded as damages the lower shortage calculation based on the methodology utilized by Michelangelo, which yielded an underpayment by the DOC of $1,453,607.30. The Town also seeks the imposition of pretrial interest pursuant to either General Statutes § § 7-254 and/or 7-258, in the amount of $1,133,813.69. The total claimed damages are thus $2,587,420.99.
General Statutes § 7-254(a) provides in relevant part: " Any assessment of benefits or any installment thereof, not paid within thirty days after the due date, shall be delinquent and shall be subject to interest from such due date at the interest rate and in the manner provided by the general statutes for delinquent property taxes. Each addition of interest shall be collectible as a part of such assessment." General Statutes § 7-258(a) provides in relevant part: " Any charge for connection with or for the use of a sewerage system, not paid within thirty days of the due date, shall thereupon be delinquent and shall bear interest from the due date at the rate and in the manner provided by the general statutes for delinquent property taxes. Each addition of interest shall be collectible as a part of such connection or use charge."
The court makes a finding of fact that the DOC discharged waste in excess of that recorded by the original Parshall flume meter between December of 2002 and November of 2010. The court further finds that the underreporting of the flow due to the limitations of the original Parshall flume meter resulted in an underpayment by the DOC of $1,453,607.30, an amount that it would otherwise have paid had the meter recorded accurately the wastewater flow from the Prison Complex.
The court further finds that in or around 2005 the Town reached 90 percent of its permitted capacity. The Town initiated a multi-year facilities study and hired the engineering consulting firm, Fuss & O’Neill, to determine whether or not an expansion of the WWTP was necessary or if it could be recertified based on the actual equipment present. The cost of the Facility Plan to the Town was $525,000. The Town claims the DOC is liable for 22.8% of that amount, or $115,000, representing its proportionate share of the Facility Plan. The court makes the factual finding that the Town has not proven that it is more probable than not that the need for the Facility Plan was attributable to discharge from the Prison Complex, that the payment of $525,000 was premature, or even that it would not ultimately have been incurred. No damages may therefore be awarded for this claim. The court finds further that the Town has not proven that wastewater discharge which was not captured by the original Parshall flume meter, and which was in excess of 350, 000 gpd, was a substantial or material factor in limiting the Town’s growth.
" The plaintiff in a civil case sustain[s] his burden of proof as to any essential element in his cause of action if the evidence, considered fairly and impartially, induce[s] in the mind of the trier a reasonable belief that it [is] more probable than otherwise that the facts involved in that element [are] true." (Internal quotation marks omitted.) Suresky v. Sweedler, 140 Conn.App. 800, 807, 60 A.3d 358 (2013).
Between 2013 and 2016, the Town undertook an expansion of the WWTP. The State assisted the Town with the funding of the expansion by providing a grant in the approximate amount of $9 million and a loan of approximately $26-27 million at a rate of 2 percent.
III
Sovereign Immunity
" The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law. It has deep roots in this state and our legal system in general, finding its origin in ancient common law." (Citations omitted; internal quotations marks omitted.) Allen v. Commissioner of Revenue Services, 324 Conn. 292, 298-99, 152 A.3d 488 (2016), cert. denied sub nom. Allen v. Connecticut Commissioner of Revenue Services, 137 S.Ct. 2217, 198 L.Ed.2d 659 (2017). " In its pristine form, the doctrine of sovereign immunity would exempt the state from suit entirely, because the sovereign could not be sued in its own courts and there can be no legal right as against the authority that makes the law on which the right depends." Shay v. Rossi, 253 Conn. 134, 168, 744 A.2d 1147 (2000).
" This absolute bar of actions against the state has been greatly modified both by statutes effectively consenting to suit in some instances as well as by judicial decisions in others." (Internal quotation marks omitted.) Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987). " The sovereign immunity enjoyed by the state is not absolute. There are [three] exceptions: (1) when the [General Assembly], either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity ... (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff’s constitutional rights ... and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority." (Citations omitted; internal quotations marks omitted) Morneau v. State, 150 Conn.App. 237, 247, 90 A.3d 1003 (2014).
An instance of the first exception to the state’s sovereign immunity is found in Chapter 53, " Claims against the State, " of General Statutes § 4-141 et seq., which permits the Claims Commissioner to waive the State’s immunity. Once the immunity is waived, however, the claimant may not recast the claim raised before the Claims Commissioner to state a new cause of action for which the state’s sovereign immunity had not been waived. See, e.g., Estate of Bochiccio v. Quinn, 136 Conn.App. 359, 368-69, 46 A.3d 239 (2012) (failure to proceed on identical claim authorized by Claims Commissioner constitutes failure to exhaust administrative remedies as to new claim which implicates subject matter jurisdiction).
General Statutes § 4-160(a) provides in relevant part: " Whenever the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable."
The DOC does not dispute that the second count of the Town’s complaint seeking compensation for the underpayment of services is properly before the court pursuant to this statutory scheme. Instead, the DOC argues that the Claims Commissioner did not authorize the breach of contract claim asserted in the first count. The court need not address this argument because, as articulated below, it does not find that the Town has proved a breach of contract. In the DOC’s view, the Town is not entitled to injunctive relief because it has failed to establish wrongful conduct in the service of an illegal purpose in excess of a state officer’s statutory authority. The court holds that the Town has not established conduct in excess of an applicable statutory authority.
IV
Conclusions of Law
A. Breach of Contract
The first count of the Town’s complaint claims the DOC breached its contract, specifically Section 4 of the Agreement, because it agreed to purchase capacity in the Town’s WWTP in the amount of 350 thousand gpd for the sum of $1,744,000. In the Town’s view, Section 4 of the Agreement imposes a limit on the discharge by the DOC of wastewater from the Prison Complex into the WWTP. The DOC disputes this interpretation due to the absence of any language regarding a limitation as to wastewater generated by any one facility or aggregate daily limit. Moreover, the DOC asserts, and the court agrees, the contract does not address the manner in which sewer fees would be calculated, the method by which discharge would be measured, the party responsible for measuring discharge, the rate the DOC would be charged for its discharge or the terms of any payment. Indeed, at trial, the Town conceded that any money that may be owed by the State to the Town under the Agreement is " subject to whatever is appropriated for the purpose by the General Assembly or the bond commission." This concession was mandated by Section 24 of the 1990 Agreement, which expressly provides that " [a]ny funds granted by the STATE to the TOWN through any provision of this agreement are subject to authorization of such funds by the General Assembly and, if required, the State Bond Commission."
The court finds that the Town’s breach of contract claim is predicated on an attempt to infer terms and conditions which do not exist. " The rules governing, contract formation are well settled. To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties ... [A]n agreement must be definite and. certain as to its terms and requirements ... So long as any essential matters are left open for further consideration, the contract is not complete." (Citations omitted; internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30 (2006). In addition, " [i]t is the general rule that a contract is to be interpreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties ... When the intention conveyed by the terms of an agreement is clear and unambiguous, there is no room for construction." (Citation omitted; internal quotation marks omitted.) Yellow Book Sales & Distribution Co. v. Valle, 311 Conn. 112, 119, 84 A.3d 1196 (2014).
In the present case, the absence of terms related to periodic payment for waste water discharge compels the conclusion that the Agreement addresses only the capital cost of the plant upgrade resulting from the expansion of the Prison Complex. Indeed, the clear terms of the Agreement do not contemplate payment by the DOC of any sum other than $1,744,000 for the purchase of capacity in the WWTP of 350 gallons per day. Moreover, in contrast to the interpretation argued by the Town, the Agreement contains no express limitation on the discharge of waste water by the DOC. Finally, there was no evidence offered that the DOC failed to pay the $1,744,000 contemplated by the Agreement. The court finds that the Town has not proven the existence of a contract for the annual payment of waste water discharged by the DOC, nor that the DOC breached the Agreement. Thus, the court need not address whether such a claim was authorized by the Claims Commissioner.
B. Quantum Meruit
The second count of the complaint is captioned, " Underpayment of Services" and is predicated upon the payment of amounts by the DOC to the Town for wastewater discharge during the period from 2002 through 2011 that corresponded to an amount of wastewater less than that actually discharged. The suit authorized by the Claims Commissioner was for the underpayment of wastewater services provided by the Town, which resulted in the DOC receiving " the benefit of higher amounts of wastewater treatment than were reported by flow meters." In re Claim of Town of Cheshire, supra, p. 3. In fact, the language in the second count mirrors the authorized claim. The DOC does not dispute that this claim is properly before the court as having been authorized by the Claims Commissioner nor that it is best understood as asserting a claim for quantum meruit. The court agrees.
" Quantum meruit is a theory of contract recovery that does not depend upon the existence of a contract, either express or implied in fact ... Rather, quantum meruit arises out of the need to avoid unjust enrichment to a party, even in the absence of an actual agreement ... Centered on the prevention of injustice, quantum meruit strikes the appropriate balance by evaluating the equities and guaranteeing that the party who has rendered services receives a reasonable sum for those services." (Citations omitted; internal quotation marks omitted.) Pollansky v. Pollansky, 162 Conn.App. 635, 658, 133 A.3d 167 (2016). Quantum meruit " is a doctrine based on the postulate that it is contrary to equity and fairness for a defendant to retain a benefit at the expense of the plaintiff." Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001). The basis for determining whether a defendant has been unjustly enriched involves a determination whether " in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another ... With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard ... Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy ... Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment." (Citations omitted; internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).
With these principles in mind, the court concludes that the DOC was unjustly enriched in the amount of $1,453,607.30 for the treatment of wastewater not recorded by the original Parshall flume meter under circumstances in which the services were not rendered pursuant to a contract. The court finds that the balance of equities favors the Town rather than the DOC. The original Parshall flume meter relied upon by both parties was purchased, owned, installed and maintained by the DOC. At no time prior to the discovery by the Town that the flow capacity measurement of the first meter was capped at 500 gpm, a limitation not questioned by the DOC, did the DOC complain about the accuracy of the meter upon which it paid for wastewater treatment. Link acknowledged that the DOC was in complete control as to whether the Fuss & O’Neill recommendations, including replacement of the meter, were implemented.
The DOC posits that the Town has failed to prove its case because it has not acquitted itself of the obligation to establish damages by a fair preponderance of the evidence. This is so because in its view the meter upon which the damages are based was not revenue grade. The court is not persuaded. The Town offered the testimony of its application of two different methodologies including the one devised by Gancarz which was based on Fuss & O’Neill’s own estimate of a discharge rate of 183 gpd/inmate. The DOC’s own witness, Stephen Link, testified that the Parshall flume meter is used by the industry as a whole. A calculation of damages must be " neither speculative nor subjective, and [must allow] for an objective ascertainment of the amount ordered." Hart, Nininger & Campbell Associates, Inc. v. Rogers, 16 Conn.App. 619, 634, 548 A.2d 758 (1988). After careful consideration of the credibility of the above testimony, especially Gancarz’ evaluation, the court finds that Town has indeed met its factual burden.
C. Interest
1. General Statutes § § 7-254 and 7-258
The Town claims pretrial interest in the amount of $1,133,813.69. It is unclear which statute is actually relied upon by the plaintiff to support its argument that the court may properly award interest. In its post-trial memorandum, the Town cites General Statutes § 7-258 as the statute authorizing the award of interest. In its reply memorandum, by contrast, the Town cites General Statutes § 7-254 as the statute principally at issue. Moreover, the state " presumed that the [Town] relies upon [General Statutes] § 7-254, which allows municipalities to recover interest on delinquent sewer assessments."
The only statute applicable is § 7-258 because § 7-254 applies to the assessment of benefits, which is defined as an increase in market value by virtue of the access of a property to town sewers. See Shoreline Care Ltd. Partnership v. North Branford, 231 Conn. 344, 351, 650 A.2d 142 (1994). No such claim was raised by the Town. Conversely, § 7-258 provides for interest to be added to charges for connections with or for the use of a sewerage system not paid within thirty days of the due date. Of the two statutes cited by the Town, this is the only one applicable and the court will analyze its claim for interest relative to this statute.
" For a claim made pursuant to the first exception [to sovereign immunity on the grounds that the General Assembly has statutorily waived the state’s immunity, the Supreme Court] 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." (Citation omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept . of Transportation, 293 Conn. 342, 349-50, 977 A.2d 636 (2009). The DOC asserts that the Claims Commissioner did not authorize a claim for interest.
Courts review decisions by the Claims Commissioner narrowly, construing them to effect the least change in sovereign immunity, and hold plaintiffs to the claims and damages set forth in their notice of claims. As noted by the Appellate Court in Morneau v. State, supra, 150 Conn.App. 250, " [t]he doctrine of sovereign immunity provides a strong presumption that the state is immune from suit or liability." Moreover, " [w]hile the plaintiff [is] not required to set forth a formal declaration of the particular causes of action he [seeks] to bring against the state, [a plaintiff needs] to include information that would clarify the nature of the waiver sought and ensure that the Claims Commissioner, and subsequently the General Assembly which reviewed the action of the Claims Commissioner, would have an understanding of the nature of that waiver." Id., 252.
General Statutes § 4-147 governs the provisions of a notice of claim required to be filed with the Office of the Claims Commissioner and provides in relevant part: " [a]ny person wishing to present a claim against the state shall file with the Office of the Claims Commissioner a notice of claim, in duplicate, containing the following information: (1) The name and address of the claimant; the name and address of his principal, if the claimant is acting in a representative capacity, and the name and address of his attorney, if the claimant is so represented; (2) a concise statement of the basis of the claim, including the date, time, place and circumstances of the act or event complained of; (3) a statement of the amount requested; and (4) a request for permission to sue the state ... Such notice shall be for informational purposes only and shall not be subject to any formal or technical requirements ..." The Appellate Court has recently determined that in the context of medical malpractice action against the state, the statutory " notice need not be particularized, as all that is required is a concise statement of the basis of the claim ... as opposed to a formal declaration of the particular causes of action the claimants seek to bring against the state." (Citation omitted; internal quotation marks omitted.) Arroyo v. University of Connecticut Health Center, 175 Conn.App. 493, 506, 167 A.3d 1112 (2017).
The notice of claim presented by the Town expressly contains a claim not just for damages related to the underpayment of wastewater processing but also interest. It is clear that the Claims Commissioner recognized and understood that the Town was requesting his authority to claim interest. His memorandum of decision specifically found that " The Town ... has requested damages of $2,303,991.57 and daily interest of $1,136.22." In re Claim of Town of Cheshire, supra, p. 2. The grant of authority to pursue the claim, however, does not identify explicitly the claim authorized. It states in relevant part: " the allegations in the present claim are that the [DOC] failed to pay for the actual amount of services that it received due to inaccurate measurements of wastewater flow and the resultant inaccurate invoices. While the [DOC] ... raises valid questions about the [Town’s] billing practices, the [DOC] did benefit from its own imprecise meters that were used to measure the flow and used to calculate the invoices. I find that based on the evidence presented at the Formal Hearing that the [Town] has provided the [DOC] the benefit of higher amounts of wastewater treatment than were reported by flow meters, and that the Town ... was underpaid for the services it provides. This is indeed a " just claim" and one that the State, were it a private individual, could be liable ... Permission to sue is granted." Id., 3.
The notice of claim dated July 1, 2014, of which the court takes judicial notice, was provided as an attachment to the DOC’s post-trial memorandum of law dated March 3, 2017.
The Town argues that the grant of authority to sue is broad enough to encompass interest. The DOC counters that because it does not expressly provide a right to sue for interest, such a claim for damages is not authorized. A resolution in the present case of whether the Town is entitled to interest, however, is informed not by whether the Claims Commissioner expressly authorized such damages, but rather by the nature of the suit authorized. This court has interpreted the claim upon which damages have been awarded as sounding in quantum meruit. This was the claim authorized by the Claims Commissioner.
Significantly, the Town did not plead a cause of action against the DOC for recovery of " fair and reasonable charges for connection with and for the use of a sewerage system, " pursuant to General Statutes § 7-255. A failure to pay such connection or use of a sewerage system charge is the basis for the imposition of interest pursuant to § 7-258. Practice Book § 10-3(a) requires that " [w]hen any claim made in a complaint ... is grounded on a statute, the statute shall be specifically identified by its number." The court is mindful that the requirement is merely directory and not mandatory, and that the failure to comply with the directive will not bar recovery " [a]s long as the defendant is sufficiently apprised of the nature of the action." Awdziewicz v. Meriden, 317 Conn. 122, 137-38, 115 A.3d 1084 (2015). It is clear, however, from the post-trial brief of the DOC, and reference to both § 7-254 and 7-258, by the Town in its post-trial briefs, that none of the parties were aware of the specific nature of the basis for the claim of interest. Furthermore, " the trial court is not obligated to substitute a cognizable legal theory that the facts, as pleaded, might conceivably support for the noncognizable theory that was actually pleaded." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 28, 930 A.2d 682 (2007). In the present case, there is no claim by the Town that interest is awardable pursuant to a claim in quantum meruit.
General Statutes § 7-255(a) provides in relevant part: " The water pollution control authority may establish and revise fair and reasonable charges for connection with and for the use of a sewerage system. The owner of property against which any such connection or use charge is levied shall be liable for the payment thereof." (Emphasis added.)
General Statutes § 7-258(a) provides that " [a]ny charge for connection with or for the use of a sewerage system, n ot paid within thirty days of the due date ... shall bear interest ..." (Emphasis added.)
The failure to have identified § 7-255 as the basis for the claim of interest is particularly significant in that the statute conditions the charge for connection with or for the use of a sewerage system on the holding of a public hearing with defined notice and filing requirements and also sets out time limits for appeal to the Superior Court by a person aggrieved by any charges. The failure to have pleaded § 7-255 circumvented any need to prove, or raise as a defense, satisfaction of the statutory prerequisites for imposition of such connection or sewerage use charges. The court finds that this failure is more than a mere technical deficiency and, having already determined that § 7-254 does not provide a basis for recovery of interest, declines to substitute the potentially cognizable claim of interest pursuant to § 7-258 for that of the quantum meruit, which provides no basis for interest, actually pleaded by the Town.
General Statutes § 7-255(a) provides in relevant part: " No charge for connection with or for the use of a sewerage system shall be established or revised until after a public hearing before the water pollution control authority at which the owner of property against which the charges are to be levied shall have an opportunity to be heard concerning the proposed charges. Notice of the time, place and purpose of such hearing shall be published at least ten days before the date thereof in a newspaper having a general circulation in the municipality. A copy of the proposed charges shall be on file in the office of the clerk of the municipality and available for inspection by the public for at least ten days before the date of such hearing. When the water pollution control authority has qi established or revised such charges, it shall file a copy thereof in the office of the clerk of the municipality and, not later than five days after such filing, shall cause the same to be published in a newspaper having a general circulation in the municipality. Such publication shall state the date on which such charges were filed and the time and manner of paying such charges and shall state that any appeals from such charges must be taken within twenty-one days after such filing ... Any person aggrieved by any charge for connection with or for the use of a sewerage system may appeal to the superior court for the judicial district wherein the municipality is located and shall bring any such appeal to a return day of said court not less than twelve or more than thirty days after service thereof."
a. General Statutes § 37-3a
The Town’s alternative argument is that " the court could also exercise its discretion and award prejudgment interest under [General Statutes § 37-3a]." The Supreme Court’s decision in White Oak Corp. v. Dept . of Transportation, 217 Conn. 281, 585 A.2d 1199 (1991), guides the court’s assessment of the plaintiff’s alternative argument. In that case, the Supreme Court addressed, inter alia, " whether the state is liable for prejudgment interest on the amounts due the plaintiff, and if so, on which amounts and at what rate." Id., 295. The plaintiff relied, in part, on § 37-3a in arguing that it was entitled to prejudgment interest. As noted by the Supreme Court, " [§ ]37-3a permits recovery of interest in civil actions or arbitration proceedings under chapter 909, at a maximum of 10 percent, as damages for the detention of money after it becomes payable. Judicial gloss applied to this language since the statute was first enacted in 1873 ... limits it to damages for the detention of money ‘wrongfully withheld.’ " (Citations omitted; internal quotation marks omitted.) Id., 297. Notably, the Supreme Court observed that " sovereign immunity shields the state from liability under a statute of general application, such as § 37-3a "; (emphasis added) Id.; and " the state would be immune from an award of interest under § 37-3a in the absence of statutory authorization." (Emphasis added.) Id., 298. Thus, the Supreme Court held that a party is not entitled to prejudgment interest against the state in accordance with § 37-3a without the assistance of an additional statute authorizing such a monetary award.
Ultimately, the plaintiff in White Oak Corp. had such additional statutory assistance by operation of General Statutes § 4-61, because the plain language of § 4-61 and its legislative history indicated that the General Assembly did not intend to shield the state from prejudgment interest. See id., 298-99. Indeed, " [t]he language of § 4-61 is so plain that the state’s liability for prejudgment interest awards has not been challenged in any published decision since the statute was amended, almost thirty years ago." Id. The Supreme Court " concluded that § 4-61 puts the state in the same position as a private party with respect to an award of prejudgment interest under § 37-3a, " and, under such circumstances, sovereign immunity did not bar the imposition of prejudgment interest under § 37-3a. Id., 299-300.
General Statutes (Rev. to 2017) § 4-61, entitled " Actions against the state on highway and public works contracts, " expressly waives sovereign immunity for claims premised on allegations that the state breached various kinds of " public works" contracts. Moreover, as currently enacted, that section expressly discusses the imposition of interest under General Statutes § 37-3a. See General Statutes (Rev. to 2017) § 4-61(a).
In accordance with White Oak Corp., a plaintiff may not simply rely on § 37-3a to circumvent the doctrine of sovereign immunity for an award of prejudgment interest. Rather, a plaintiff must point to an additional statute, or authority, that authorizes the imposition of such an award. In White Oak Corp., the plaintiff was able to point to § 4-61, which was the statutory provision under which the plaintiff pursued its breach of contract claim. See id., 283-84 (breach of contract claim pursued under § 4-61). Because the Town has identified no statutory basis for the waiver of its immunity as to prejudgment interest the court may not, and does not, award such interest.
Absent such a statutory waiver, the court is precluded from reaching the merits of whether " the demands of justice" permit an award of prejudgment interest in accordance with § 37-3a. See White Oak Corp. v. Dept. of Transportation, supra, 217 Conn. 302.
V.
Injunction
The Town requests a permanent injunction prohibiting the DOC from discharging wastewater from the Prison Complex in excess of 350, 000 gpd. As framed by the plaintiff, the only issue before the court is whether the DOC exceeded its statutory authority when it violated the terms of the Agreement. Specifically, the plaintiff argues that " [t]he DOC’s flat refusal to comply with the terms of the [a]greement exceeds its statutory authority under Public Act 89-353 and, therefore, obviates the sovereign immunity defense." Moreover, the plaintiff claims that " [it] has proven that the DOC acted in excess of its statutory mandate, and has harmed (and will continue to harm) [it] by discharging more than 350, 000 gallons per day of effluent to the WWTP." In accordance with the plaintiff’s arguments, only the " acting in excess of statutory authority" exception to the doctrine of sovereign immunity is implicated by this case.
Although the plaintiff cites case law indicating, as a general proposition, that the doctrine of sovereign immunity can be avoided in an action for declaratory or injunctive relief where the state has violated the plaintiff’s constitutional rights, the plaintiff’s actual argument is limited to the " in excess of statutory authority" exception. Indeed, at no point in either of its posttrial memoranda does the [Town] discuss what constitutional rights are impacted by the defendant’s conduct. Because the plaintiff has not briefed the " violation of constitutional rights" argument, the court limits its analysis to the " in excess of statutory authority" exception. See, e.g., Connecticut Light and Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (trial court is not required to review issues that have been not been briefed).
In part III of this decision, the court examined the law governing exceptions to the principle of sovereign immunity. As our courts have consistently recognized, a plaintiff may circumvent the doctrine of sovereign immunity by proceeding under certain, limited exceptions. See, e.g., Gold v. Rowland, 296 Conn. 186, 211, 994 A.2d 106 (2010) (" [e]xceptions to this doctrine are few and narrowly construed under our jurisprudence"); C.R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 258, 932 A.2d 1053 (2007) (same). Indeed, our Supreme Court in Horton v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977), highlighted two of these exceptions: " In those cases in which it is alleged that the defendant officer is proceeding under an unconstitutional statute or in excess of his statutory authority, the interest in the protection of the plaintiff’s right to be free from the consequences of such action outweighs the interest served by the sovereign immunity doctrine. Moreover, the government cannot justifiably claim interference with its functions when the acts complained of are unconstitutional or unauthorized by statute." (Emphasis added; internal quotation marks omitted.)
The dilemma, fatal to its success, encountered by the Town’s argument is that its statutory predicate, P.A. § 89-353, was repealed in 1999 by P.A. 99-75, § 13. In general, " where a statute is repealed without a reenactment of the repealed law in substantially the same terms, and there is no saving clause or general statute limiting the effect of the repeal, the repealed statute, in regard to its operative effect, is considered as if it had never existed." 73 Am.Jur.2d, Effect of repeal § 264 (2017). General Statutes § 1-1(u) provides that " [t]he passage or repeal of an act shall not affect any action then pending." The Town commenced the present action in 2012, well after the repeal of P.A. § 89-353. Indeed, the cause of action advanced by the Town did not accrue until December of 2002, three years after the statute’s repeal. The Town has advanced no other statutory violation as the basis for an injunction. Because the only statute upon which its injunctive relief is sought was repealed prior to the time of the accrual of the Town’s cause of action and the commencement of suit, the request for an injunction is denied.
VI
Conclusion
For the foregoing reasons, judgment enters in favor of the plaintiff, the Town of Cheshire, against the defendant, State of Connecticut, Department of Corrections, on the second Count of its complaint in the amount of $1,453,607.30. Judgment enters in favor of the DOC against the Town on the first and third counts.