C.R. Klewin Ne., LLC v. State

Decision Date07 December 2010
Docket NumberNo. 18609.,18609.
Citation9 A.3d 326,299 Conn. 167
PartiesC.R. KLEWIN NORTHEAST, LLC v. STATE of Connecticut.
CourtConnecticut Supreme Court

Robert E. Wright, for the appellant (plaintiff).

Eileen Meskill, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).



This appeal requires us to determine what constitutes adequate notice of a claim underGeneral Statutes § 4-61(a),1 aprovision that waives the state's sovereign immunity to allow actions against the state for disputes arising from construction contracts. The plaintiff, C.R. Klewin Northeast, LLC, appeals 2 from the trial court's judgment in favor of the defendant stateof Connecticut, following the court's dismissal of the plaintiff's complaint. In dismissing the complaint, the trial court reasoned that, because the plaintiff had failed to comply properly with the notice requirement of § 4-61(a), its claim against the state was barred by sovereign immunity and, therefore, the court lacked subject matter jurisdiction. We agree with the plaintiff that the trial court improperly concluded that the notice given by the plaintiff was inadequate and, accordingly, reverse the court's judgment.

The following facts, which were found by the trial court following an evidentiary hearing,3 and procedural history are relevant to this appeal. On October 6, 1998, the plaintiff entered into a contract with the state department of public works (department) to construct or alter certain buildings at Manchester Community College. While performing the contract, the plaintiff encountered various delays and change orders that caused it to incur additional expenses.

On August 31, 2001, approximately nine months after the completion of the project,4 the plaintiff sent Richard Piotrowski,the department's bureau chief of facilities, design and construction, a detailed communication requesting that it be paid an additional $2,678,256 for contract overruns.5 On April 15, 2004, after attempts toobtain compensation for the overruns failed, Michael D'Amato, the plaintiff's president, hand delivered a letter to James T. Fleming, the department's commissioner. The April 15, 2004 letter began by "request[ing] [Fleming's] assistance in resolving an issue that has been pending since August 31, 2001," and proceeded to identify the contract, project and amount and cause of the overruns.6 After referring to the August 31, 2001 submission to the department and detailing the plaintiff's futile efforts to receive payment despite repeated assurances that the submission was being processed,7 the plaintiff concluded its letter by emphasizing that it "has been extremely patient waiting for payment. We have not submitted a claim requesting interest, home office overhead or other items. We have worked within the system and have followed all the rules. We have been out of pocket more than $2,000,000 since November,2000. This has caused a significant impact on our business. All we ask is to be treated fairly and honestly and that payment due us be made."

Following receipt of the plaintiff's April 15, 2004 letter, Fleming directed David O'Hearn, the department's deputy commissioner, to request additional documentation from the plaintiff and, thereafter, to meet with the plaintiff to discuss its request for additional payment. In an April 28, 2004 letter to D'Amato, O'Hearn stated: "We have located your original submission of August 31, 2001, and I have asked the project manager to review the notebook and comment." The plaintiff replied on May 4, 2004, by providing a copy of a change order proposal dated March 14, 2002, and Joel Baranowski, a state project manager, responded on June 7, 2004, with a list of questions. D'Amato, O'Hearn and Baranowski then met in September, 2004, to discuss the plaintiff's request. The minutesof that meeting reflected that the plaintiff had hired a claims consultant who valued the claim at over $5 million, but that the plaintiff was willing to accept $1.2 million in compromise. On September 20, 2004, Fleming contacted Marc Ryan, the secretary of the office of policy and management, to recommend discussion of the plaintiff's claim, and both Fleming and the attorney general recommended to Governor M. Jodi Rell (governor) that the plaintiff be paid. On March 8, 2005, the governor authorized the department to settle the plaintiff's claim for $1.2 million.8 Nevertheless, the plaintiff was never paid.

On November 27, 2007, the plaintiff filed the present action pursuant to § 4-61(a).9 On January 28, 2008, thestate filed a motion to dismiss the action for lack of subject matter jurisdiction. Specifically, the state claimed that the court lacked jurisdiction because the plaintiff had failed to comply with the notice provision of § 4-61(a). The plaintiff objected to the motion to dismiss, claiming that it had given the requisite notice, and requested a hearing to resolve the factual dispute. The trial court heard oral argument and received evidence on October 30, 2008, and held a hearing on November 25, 2008, at which witnesses testified and further evidence was submitted.

Thereafter, the trial court granted the state's motion to dismiss, concluding that the state had not received sufficient statutory notice of the plaintiff's claim. As to the plaintiff's August 31, 2001 communication, the court noted that it had not been delivered to Fleming, who was the head of the department, as required by § 4-61(a).10 As to the April 15, 2004 letter, the court reasoned that "[n]o reference to any intent to pursue a claim, pursuant to § 4-61, or by suit or arbitration, is contained in this letter." The trial court analogized to jurisprudence concerning notice provisions in other statutes unrelated to state contracts and held that, "under § 4-61, providing the head of the agency with details about a request for an adjustment to a contract or about a contract dispute is insufficient. A purported notice is insufficient under § 4-61 if it lacks an essential element: notice of intent to pursue a claim for damages, either by an action in court or through an arbitration claim."The trial court acknowledged testimony from both Fleming and O'Hearn confirming "that, in 2004, [the plaintiff] was claiming that the state owed [the plaintiff] money on the [Manchester Community College] project, and provided information in support of its claim to [the department]; and that [the department] conducted an investigation which led to the recommendedsettlement," but concluded that the officials' testimony did "not amount to evidence that [the plaintiff] provided a notice of claim that met the statutory requirements." The trial court concluded further that the April 15, 2004 letter did not provide the factual basis for the plaintiff's claim as required by § 4-61(a). The trial court then dismissed the plaintiff's complaint. This appeal followed.

On appeal, the plaintiff claims that the trial court improperly concluded that § 4-61(a) required it to notify Fleming explicitly that it intended to pursue its claim either in court or in arbitration. It argues that the statute provides only that a contractor give the head of a department advance written notice of the claim itself and of its factual basis. The plaintiff argues additionally that its April 15, 2004 letter to Fleming conveyed the factual basis of its claim as required by § 4-61(a).11 We agree with the plaintiff.

We begin with standards governing the trial court's dismissal of the plaintiff's complaint and our review of that decision. "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.)Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "[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.) Id.

"It is a well-established rule of the common law that a state cannot be sued without its consent." (Internal quotation marks omitted.) Id. Accordingly, "a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that ... the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity." (Internal quotation marks omitted.) Id. Moreover, "when the state waives sovereign immunity by statute a party attempting to sue under the legislative exception must come clearly within its provisions, because [s]tatutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed...." (Internal quotation marks omitted.) Dept. of Transportation v. White Oak Corp., 287 Conn. 1, 8, 946 A.2d 1219 (2008). "Thus, a party [seeking] to litigate or arbitrate a disputed claim arising under a public works contract bears the burden of proving that the claim fits precisely within the narrowly drawn reach of § 4-61." Id., at 9, 946 A.2d 1219.

The plaintiff does not contest the findings of fact made by the trial court in connection with the defendant's motion to dismiss, but rather, the court's interpretation of § 4-61(a) and its application of the statute to the facts found. The plaintiff's claims, therefore, present issues of statutory construction over which our review is plenary. Id., at 7, 946 A.2d 1219. When we construe a statute, "General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results,...

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    ...The legislature can waive immunity and consent to suit, thereby limiting the state's immunity. Compare C. R. Klewin Northeast, LLC v. State , 299 Conn. 167, 176, 9 A.3d 326 (2010) (discussing statutory waiver of sovereign immunity under General Statutes § 4-61 ), with Hicks v. State , 297 C......
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