Lombard v. Edward J. Peters, Jr., PC

• Decision Date: 04 April 2000
• Docket Number: (SC 16162)
• Citation: 749 A.2d 630,252 Conn. 623
• Court: Connecticut Supreme Court
• Parties: JAMES R. LOMBARD ET AL. v. EDWARD J. PETERS, JR., P.C., ET AL.

252 Conn. 623

749 A.2d 630

JAMES R. LOMBARD ET AL. v. EDWARD J. PETERS, JR., P.C., ET AL.

(SC 16162)

Supreme Court of Connecticut.

Argued December 1, 1999.

Officially released April 4, 2000.

Borden, Norcott, Katz, Palmer and Callahan, JS. Paul H. D. Stoughton, for the appellants (plaintiffs).

Louis A. Annecchino IV, for the appellee (named defendant).

Opinion

CALLAHAN, J.

This is an appeal from a judgment of the trial court granting the motion by the named defendant, Edward J. Peters, Jr., P.C.,¹ to strike the first count of the plaintiffs' complaint on the ground of qualified immunity. The question presented by the appeal is whether a committee appointed by a court to conduct a foreclosure sale is entitled to qualified immunity for negligently identifying certain real estate as being part of the property included in the sale. We answer that question in the negative.

The relevant facts and procedural history are as follows. The Superior Court appointed the defendant as the committee to conduct a foreclosure sale of certain condominium units located in a common interest community in Middletown called Meadows Condominium. The Federal Deposit Insurance Corporation (FDIC) was the successful bidder at the foreclosure sale and purchased the foreclosed property. The defendant conveyed the foreclosed property to the FDIC by a committee deed, which accurately described the foreclosed property purchased by the FDIC. After the sale had been approved by the court, the defendant orally incorrectly identified a garage unit owned by the plaintiffs, James R. Lombard and Lombard Associates, Inc., as being part of the property that had been foreclosed by the lienholder and purchased by the FDIC. In actuality, the plaintiffs' garage unit had been neither foreclosed nor subject to any foreclosure or sale. The FDIC, having been so misled, thereafter entered the plaintiffs' garage unit and took possession of and sold certain personal property of the plaintiffs that was stored therein. The stored personal property consisted of business equipment, books and records. The plaintiffs have received only partial relief from the FDIC for the loss of their property.

The plaintiffs filed this four count complaint against the defendant and Meadows Condominium of Middletown Association, Inc. This appeal concerns only the trial court's granting of the defendant's motion to strike the first count of the complaint, which alleged that the defendant erroneously and negligently had represented to the FDIC that the plaintiffs' garage unit was part of the foreclosed property purchased by the FDIC.² The trial court concluded that the defendant's misidentification of the garage unit was a discretionary act and that the defendant, as the court-appointed committee, was shielded from liability for discretionary acts by qualified immunity, in the absence of any allegations of malice or intent. The trial court, therefore, granted the defendant's motion to strike the first count of the complaint and rendered a partial judgment in favor of the defendant. This appeal followed.³

"In an appeal from a judgment granting a motion to strike, we operate in accordance with well established rules. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on the defendant['s] motions is plenary. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996) [cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997)].... [W]e take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); see also Mingachos v. CBS, Inc., 196 Conn. 91, 108-109, 491 A.2d 368 (1985). Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996). Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. Clohessy v. Bachelor, 237 Conn. 31, 33 n.4, 675 A.2d 852 (1996)." (Internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 307-308, 709 A.2d 1089 (1998).

I

The plaintiffs claim that the trial court improperly granted the defendant's motion to strike on the basis of that court's determination that the defendant had qualified immunity. The plaintiffs' argument is two-pronged. First, they argue that the defendant was not acting in the capacity of a committee when the defendant incorrectly identified the plaintiffs' property and, therefore, may not invoke any immunity that might apply to that office. Second, the plaintiffs contend that even if the defendant was acting as a committee, the defendant's misidentification was a ministerial rather than a discretionary act and, thus, qualified immunity does not apply.

A

The plaintiffs' complaint does not allege that the defendant was acting other than in the capacity of a committee when the defendant misidentified their property. Moreover, the plaintiffs never argued that point to the trial court at the hearing on the defendant's motion to strike. Because the plaintiffs' claim that the defendant was not acting as a committee and therefore did not have qualified immunity was not properly raised before the trial court, we decline to address it now. Practice Book § 60-5; Chaplin v. Balkus, 189 Conn. 445, 447, 456 A.2d 286 (1983).

B

The plaintiffs next argue that, even if the defendant acted in the capacity of a committee, the defendant's action in misidentifying the foreclosed property was ministerial in nature and as such was not protected by qualified immunity. The defendant, on the other hand, argues that, because the negligence claim "calls into question the standard of care of a Committee (a claim implicating one's judgment or more aptly discretion), the claim alleged is subject to qualified immunity." We agree with the plaintiffs.

"[A public officer] ... has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act." (Internal quotation marks omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). The hallmark of a discretionary act is that it requires the exercise of judgment. "On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167-68, 544 A.2d 1185 (1988); Kolaniak v. Board of Education, 28 Conn. App. 277, 280-81, 610 A.2d 193 (1992). Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder; Gordon v. Bridgeport Housing Authority, supra, 165; there are cases where it is apparent from the complaint. See Evon v. Andrews, supra, 505-507.

The primary function of the committee is to conduct the judicial sale. See General Statutes § 49-25. This, of course, may include advertising the sale, erecting a sign on the property, identifying the property, conducting the sale and ultimately presenting a report to the court whose approval is required and will cure the process of any defects or irregularities. See Raymond v. Gilman, 111 Conn. 605, 613, 151 A. 248 (1930).

Although the duties of a committee for sale are delineated by the court, the committee may exercise its discretion in performing certain of its tasks. For instance, a committee for sale may determine the size of the advertisements published in newspapers; see D. Caron, Connecticut Foreclosures (3d Ed. 1997) § 6.01D, p. 172; and the proper time to commence the foreclosure sale. Dime Savings Bank of New York v. Grisel, 36 Conn. App. 313, 321, 650 A.2d 1246 (1994) (committee had discretion to begin auction at appointed hour although plaintiff's attorney not yet present, and to refuse request to reopen bidding); Jefferson v. Karpowicz, 10 Conn. App. 198, 200, 522 A.2d 322 (1987) (committee for partition sale had discretion to begin auction ten to thirty minutes after appointed hour). There are, of course, limits to a committee's discretion. See, e.g., In re Robert C. Lohnes, United States Bankruptcy Court, Case No. X-XX-XXXXX (D. Conn. January 29, 1983) (9 Conn. L., Trib., No. 7, February 14, 1983) (committee has no immunity from civil contempt for conducting sale after bankruptcy petition filed in violation of automatic stay because act of conducting sale itself is ministerial). Because "the person appointed to make the sale [i.e., the committee] is the mere agent of the court"; Raymond v. Gilman, supra, 111 Conn. 613; whatever discretion the committee may have certainly cannot extend to selling property or representing as foreclosed property a garage unit that the court had not authorized the committee to sell.

The defendant argues that its action must be discretionary, because the plaintiffs' complaint alleges that the defendant's misidentification of the property violated the standard of care of an attorney in real estate matters. The defendant essentially argues that conformance to a standard of care requires exercising judgment on one's part, which in turn must mean that the act is discretionary rather than ministerial. Contrary to the defendant's assertion, the plaintiffs' reference to a standard of care in the negligence count of their complaint does not necessarily implicate discretion. In those instances where the language of a complaint is dispositive as to whether an act is discretionary or ministerial, it is because of the nature of the act alleged rather than the theory of liability relied upon. See Evon v. Andrews, supra, 211 Conn. 505.

The defendant's misidentification of the...