Demarest v. Fire Dept.

• Decision Date: 01 April 2003
• Docket Number: (AC 22262).
• Citation: 76 Conn. App. 24,817 A.2d 1285
• Court: Connecticut Court of Appeals
• Parties: JAMES DEMAREST ET AL. v. FIRE DEPARTMENT OF THE CITY OF NORWALK ET AL.

76 Conn. App. 24

817 A.2d 1285

JAMES DEMAREST ET AL. v. FIRE DEPARTMENT OF THE CITY OF NORWALK ET AL.

(AC 22262).

Appellate Court of Connecticut.

Argued October 15, 2002.

Officially released April 1, 2003.

Lavery, C. J., and Schaller and West, Js. Jerry V. Leaphart, for the appellants (plaintiffs).

M. Jeffry Spahr, for the appellees (defendants).

Opinion

SCHALLER, J.

The plaintiffs, James Demarest and John Bolton, appeal from the judgment of the trial court rendered in favor of the defendants in this quo warranto action challenging the defendants'¹ hiring of certain firefighters. On appeal, the plaintiffs claim that the court improperly (1) failed to impanel a jury to act as fact finder in violation of their constitutional right to a jury trial, (2) determined that the Norwalk fire board did not act arbitrarily and capriciously in applying the criteria for firefighter eligibility, (3) determined that the date on which the firefighters were sworn in was the date by which they had to satisfy the eligibility criteria and (4) failed to consider certain evidence. In addition, the plaintiffs claim that the trial judge improperly failed to recuse himself.

We ordered the parties to file supplemental briefs on the following additional questions: (1) whether damages can be awarded in a quo warranto action; (2) whether the plaintiffs' failure to name as defendants the individual firefighters whose removal from office is sought deprives the trial court or this court of jurisdiction over the matter; and (3) if this court has jurisdiction over the appeal, whether the trial court's judgment should be reversed and a new trial ordered based on the nonjoinder of the firefighters. We conclude that the individual firefighters are indispensable parties, and, accordingly, reverse the judgment of the trial court. We also address the plaintiffs' claim regarding the court's failure to impanel a jury and the issue regarding the availability of damages because those issues are likely to arise in a new trial.

I

We first address the plaintiffs' failure to name as defendants the firefighters whose title to office is challenged. Although that issue was not specifically raised as a ground for reversal, we conclude that the firefighters are indispensable parties and that the court therefore could not properly have proceeded to judgment in light of their nonjoinder.

The following facts are relevant to the issue of the firefighters' nonjoinder. In the operative complaint, dated June 23, 2000, the plaintiffs alleged that nine firefighters hired by the defendants had failed to satisfy the job eligibility requirements in a timely manner.² The plaintiffs did not, however, name the firefighters as defendants. The defendants raised the nonjoinder twice in the trial court. The issue was first raised in the defendants' April 20, 1998 motion to strike. The court declined to grant the motion on that ground because the motion did not provide the absent parties' names and addresses as required by Practice Book § 10-39 (b). Subsequently, the defendants filed a motion for summary judgment in support of which they again raised the nonjoinder of the firefighters. In its memorandum of decision denying summary judgment, the court rejected the defendants' argument, noting that a motion to strike is the exclusive vehicle for addressing the failure to join a necessary party. In addition, the court stated that the challenged firefighters were not necessary parties because, according to the court, "in a quo warranto action, the writ is not directed against the officer personally, but the office itself." The case subsequently was tried to the court, which rendered judgment for the defendants. This appeal followed.

The plaintiffs argue in their brief that five of the firefighters had not satisfied the eligibility requirements in a timely manner.³ Nevertheless, the nonjoinder of the firefighters was not raised on appeal until the defendants mentioned the issue in their first supplemental brief. As previously stated, we subsequently ordered the parties to file additional supplemental briefs to address the significance of the nonjoinder.

We first note that the failure of the parties to raise the nonjoinder of the individual firefighters in their original briefs does not preclude us from consideration of the issue. Ordinarily, an issue may not be raised for the first time in a supplemental brief when the court has not ordered supplemental briefing on that issue. See Mulroy v. Becton Dickinson Co., 48 Conn. App. 774, 778 n.2, 712 A.2d 436 (1998). Nevertheless, when an action cannot be disposed of properly on its merits because of the absence of an indispensable party, the defect is not waivable and can be addressed by this court even if not timely raised by the parties. See W. G. Glenney Co. v. Bianco, 27 Conn. App. 199, 202-203, 604 A.2d 1345 (1992); Gaudio v. Gaudio, 23 Conn. App. 287, 305, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990).

"Parties are considered 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 [disposition] may be . . . inconsistent with equity and good conscience.. . . Indispensable parties must be joined 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]. . . . Necessary parties, in contrast, are those [p]ersons 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. . . . [B]ut 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." (Citations omitted; internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 225-26 n. 10, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997).

A complaint in the nature of a quo warranto may be brought "[w]hen any person . . . usurps the exercise of any office⁴ . . . [and] the Superior Court may proceed. . . to punish such person . . . for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law." General Statutes § 52-491. "A quo warranto proceeding under the common law lies only to test the defendant's right to hold office de jure. . . . It is well established that in quo warranto proceedings the burden is upon the defendant to show a complete title to the office in dispute." (Citations omitted; internal quotation marks omitted.) Cheshire v. McKenney, 182 Conn. 253, 256-57, 438 A.2d 88 (1980); see also Deguzis v. Jandreau, 27 Conn. App. 421, 424, 606 A.2d 52 (1992). "A successful action in quo warranto ousts the wrongful office holder and declares the position vacant." Carleton v. Civil Service Commission, 10 Conn. App. 209, 215, 522 A.2d 825 (1987).

"The parties defendant or respondent in quo warranto proceedings are those charged with exercising the particular office or franchise without lawful right. Stated otherwise, a writ of quo warranto must be directed toward the objectionable person holding an office and exercising its functions in his or her individual capacity." 65 Am. Jur. 2d, Quo Warranto § 93 (2001); see also Johnson v. Manhattan Railway Co., 289 U.S. 479, 502, 53 S. Ct. 721, 77 L. Ed. 1331 (1933) (quo warranto proceeding "must be brought against the person who is charged with exercising an office or authority without lawful right"); Blackburn v. O'Brien, 289 F. Sup. 289, 293 (W.D. Va. 1968).

Under the authorities previously cited, the firefighters whose title to office is challenged clearly have the burden of proving that they rightfully hold office. For reasons not apparent from the record, however, the firefighters have not been named as defendants. This case therefore presents a unique situation in which the individuals possessing the burden of proof are not parties to the action. Furthermore, because the remedy for a finding that any of the firefighters does not rightfully hold office would be the ouster of that firefighter, the individuals who would be most directly affected by a judgment for the plaintiffs were not able to defend their rights to their positions. The court nevertheless proceeded to trial and judgment without requiring the joinder of the firefighters.

We cannot escape the conclusion that the trial of the action without first requiring joinder of the firefighters resulted in a final disposition that necessarily was inconsistent with equity and good conscience. This is not a case in which the missing parties' interests are separable from those of the parties before the court so that the court can proceed to a decree and do complete justice without affecting the missing parties. There simply cannot be any decree or final decision in a quo warranto action in the absence of the parties whose ouster is sought. We therefore conclude that the challenged firefighters are indispensable parties in whose absence the case could not be disposed of properly on its merits. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., supra, 238 Conn. 225-26 n.10.

Having reached the conclusion that the challenged firefighters are indispensable parties, we must next determine the proper course of action for the trial court on remand. Specifically, we must decide whether the court should dismiss the case or conduct a new trial after joinder of the proper parties. J & B Construction &...