Beccia v. City of Waterbury

• Decision Date: 25 August 1981
• Court: Connecticut Supreme Court
• Parties: Jerry BECCIA v. CITY OF WATERBURY et al.

Page 131

441 A.2d 131

185 Conn. 445

Jerry BECCIA v. CITY OF WATERBURY et al.

Supreme Court of Connecticut.

Argued May 13, 1981.

Decided Aug. 25, 1981.

J. William Gagne, Jr., Hartford, with whom, on the brief, was David A. Swaine, Hartford, for appellant (plaintiff).

John C. Bullock, Waterbury, for appellee (defendant Edward St. John).

Carl R. Cicchetti, Waterbury, with whom, on the brief, were Antony A. Casagrande, Waterbury, and Thomas G. Parisot, law student intern, for appellees (named defendant et al.).

Before BOGDANSKI, C.J., and PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.

PETERS, Associate Justice.

This case arises out of an alleged conflict between the civil service system of the city of Waterbury and the provision of General Statutes § 29-45 requiring that a preference be given to members of a local fire department in the selection of a local fire marshal. The plaintiff, Jerry Beccia, an applicant for the position of fire marshal of Waterbury, brought an action against the defendants, the city of Waterbury and various city officials, ¹ and against the defendant Edward St. John, the applicant certified as having ranked first in an examination for the position of fire marshal. Alleging that the certification of St. John violated § 29-45, ² the plaintiff sought declaratory and injunctive relief ordering the rescission of the St. John certification and ordering that he be certified in St. John's stead. A few days earlier, St. John had brought an action, St. John v. Gaglione et al., for a writ of mandamus requiring the board of fire commissioners to appoint him to the position of fire marshal. These two separate actions were consolidated for trial. ³ After a hearing, the trial court rendered two judgments. One denied the injunctive relief sought by the plaintiff Beccia; the other granted the writ of mandamus sought by St. John. No appeal has been taken in the St. John case; the plaintiff Beccia appeals from the judgment denying him declaratory and injunctive relief.

The trial court's memorandum of decision reveals the following relevant facts: Upon the city's announcement, on October 25, 1979, that the position of fire marshal was vacant, three people filed applications to take the examination for that position. The three applicants were Jerry Beccia, Edward St. John and William McKeeman. Only Beccia and McKeeman were then members of the city fire department; St. John, although a city employee, was not a member of its fire department. Each of the applicants was certified to be an eligible candidate in accordance with General Statutes § 29-45a. ⁴ On the basis of an oral examination, and an evaluation of each applicant's experience, training and length of service, the city personnel director established an eligible list for the vacant position of fire marshal on which St. John ranked first, Beccia second and McKeeman third. In establishing this ranking, neither Beccia nor McKeeman was given any special preference by reason of his previous employment in the fire department. Thereafter, the personnel director certified St. John to the board of fire commissioners as the highest ranked applicant. The certification process complied with the city's civil service rules, which do not provide for a preference based upon membership in the fire department. The board, presumably because of the present controversy, refused to take any action on St. John's certification.

On these facts, the trial court concluded that the city's civil service regulations, authorized by special act of the legislature in 21 Spec Laws 583, § 57, controlled the appointment of a fire marshal, regardless of the provisions of § 29-45. The court determined that § 29-45 was inapplicable because that statute, in contradistinction to General Statutes § 7-415, the veterans preference statute, did not expressly provide that a preferred applicant be given special credit in any civil service or merit examination. The court also decided that the language of § 29-45, if applicable, was directory, rather than mandatory. It therefore rendered judgment denying the plaintiff's claim for declaratory, injunctive or other equitable relief.

In the companion case brought by St. John, the court issued a writ of mandamus directing his appointment to the position of fire marshal. The court heard the St. John case together with the plaintiff's case. In its memorandum of decision, the court stated, "(a)ll of the evidence presented in the first (Beccia) case fully applied in this second (St. John) case; and this court's findings, conclusions and opinions stated above are adopted and applied in this second case." The plaintiff Beccia was not, however, a party to the St. John case and did not seek to intervene therein. No one has appealed the judgment of mandamus directing St. John's appointment as fire marshal.

I

Before we reach the merits of the plaintiff's argument that the trial court erred in its legal conclusions about the meaning and applicability of § 29-45, we must consider St. John's argument that we should dismiss the plaintiff's appeal as moot. St. John argues that Beccia's appeal is moot because the judgment of mandamus is final and no appeal has been taken therefrom, so that no practical relief could be afforded to Beccia by the judgment of this court upon his appeal were we to find error in the judgment against Beccia.

We have repeatedly held that we will dismiss an appeal as moot when the facts and circumstances of the case have so changed that they make it impossible for any actual or practical relief to follow from our judgment. See Delevieleuse v. Manson, --- Conn. ---, ---, 439 A.2d 1055 (42 Conn.L.J., No. 51, pp. 1, 2) (1981); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 (1974); Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944). A trial court judgment in another case, even if no longer subject to attack on direct appeal or on a motion to open judgment, does not, however, invariably constitute such a bar to our review of a trial court judgment; see, e.g., Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 591, 409 A.2d 1029 (1979); see also State ex rel. Foote v. Bartholomew, 103 Conn. 607, 623, 132 A. 30 (1925); and to relief to a successful appellant.

To the extent that St. John's argument that this appeal is moot rests upon the proposition that such a judgment denies us jurisdiction to afford relief to the appellant here, we reject it. A prior judgment which would be a bar to a later action, as res adjudicata, is a defense which must be specially pleaded by the party who seeks its benefit. Practice Book § 164; Nikitiuk v. Pishtey, 153 Conn. 545, 553, 219 A.2d 225 (1966); Salem Park, Inc. v. Salem, 149 Conn. 141, 144, 176 A.2d 571 (1961); Gaer Bros., Inc. v. Mott, 144 Conn. 303, 310, 130 A.2d 804 (1957); and see, e.g., Driscoll v. Humble Oil & Refining Co., 60 F.R.D. 230, 233 (S.D.N.Y.1973), aff'd without opinion, 493 F.2d 1397 (2d Cir. 1974); Technograph Printed Circuits, Ltd. v. United States, 372 F.2d 969, 973-75 (1967) (estoppel). If it is not, the inconsistent judgment will not limit the power of the trial court to render a judgment which conflicts with the first, or of this court to review such a judgment upon appeal. In Carpenter v. Planning & Zoning Commission, supra, 176 Conn. 581, 591, 409 A.2d 1029, we held that after a final judgment granting mandamus had been rendered a second trial court did not err in considering anew a question of fact necessarily decided in the first action.

Further, it is generally held that a subsequent inconsistent judgment, if sought to be used in a third action, will prevail over an earlier one. See Slattery v. Maykut, 176 Conn. 147, 159 n.8, 405 A.2d 76 (1978) and see, e.g., Dimock v. Revere Copper Co., 117 U.S. 559, 566, 6 S.Ct. 855, 857, 29 L.Ed. 994 (1886); Rosenstiel v. Rosenstiel, 368 F.Supp. 51, 59 (1973), aff'd without opinion, 503 F.2d 1397 (2d Cir. 1974); Helgesson v. Helgesson, 196 F.Supp. 42, 46, aff'd, 295 F.2d 37 (1st Cir. 1961); Donald v. J. J. White Lumber Co., 68 F.2d 441, 442 (5th Cir. 1934); see also Treinies v. Sunshine Mining Co., 308 U.S. 66, 75-78, 60 S.Ct. 44, 49-50, 84 L.Ed. 85 (1939); and see R. Ginsburg, "Judgments in Search of Full Faith and Credit: the Last-in-Time Rule for Conflicting Judgments," 82 Harv.L.Rev. 798, 798-99 (1969); Restatement (Second), Judgments § 41.2 (Tent. Draft No. 1, 1973). Thus we have the power to render a judgment which will afford Beccia relief.

Whether we should decline to exercise this power because of Beccia's arguable failure to comply with our rules of procedure is the question to which we now turn. The issue is whether Beccia is estopped to proceed in his case because he failed to move to intervene in the then pending St. John action for mandamus, and is therefore unable to appeal from the St. John judgment. A consideration of the nature of the two causes of action below will help to clarify this question.

An action for declaratory judgment pursuant to General Statutes § 52-29 is a statutory action " 'as broad as it well could be made.' Sigal v. Wise, 114 Conn. 297, 301, 158 A. 891." Horton v. Meskill, 172 Conn. 615, 626, 376 A.2d 359 (1977); Connecticut Savings Bank v. First National Bank, 133 Conn. 403, 406-411, 51 A.2d 907 (1947); 2 Stephenson, Conn. Civil Proc. (2d Ed. 1971) § 266d. It is the appropriate vehicle for construction of a statute if all parties affected thereby have been made or have been given the opportunity to become parties. Practice Book § 390(d); Rosnick v. Zoning Commission, 172 Conn. 306, 307-308, 374 A.2d 245 (1977); State ex rel. Kelman v. Schaffer, 161 Conn. 522, 527, 290 A.2d 327 (1971); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 383, 260 A.2d 596 (1969). Having given the proper notice and brought all those interested...