Metropolitan Dist. v. Housing Authority of City of Hartford

• Decision Date: 05 November 1987
• Docket Number: No. 5394,5394
• Citation: 531 A.2d 194,12 Conn.App. 499
• Court: Connecticut Court of Appeals
• Parties: The METROPOLITAN DISTRICT v. HOUSING AUTHORITY OF the CITY OF HARTFORD.

Page 194

531 A.2d 194

12 Conn.App. 499

The METROPOLITAN DISTRICT v. HOUSING AUTHORITY OF the CITY OF HARTFORD.

No. 5394.

Appellate Court of Connecticut.

Argued June 2, 1987.

Decided Sept. 22, 1987.

Petition for Certification Denied Nov. 5, 1987.

Rudolph P. Arnold, Hartford, for the appellant (respondent).

Cecily A. Isbell, with whom were Bourke G. Spellacy and, on the brief, David Hetzel, Hartford, for the appellee (petitioner).

Before DUPONT, C.J., and HULL and SPALLONE, JJ.

HULL, Judge.

The petitioner in this action is a municipal corporation authorized, inter alia, to deliver water and sewer services to the residents of the Metropolitan District, which includes the city of Hartford. The respondent is a public housing authority which owns low and moderate income housing projects in the city of Hartford. The petitioner has, for a number of years, provided sewer services to the respondent's housing projects.

On January 16, 1986, the petitioner filed a petition in the Superior Court for the appointment of a receiver of rents. ¹ The petitioner asserted that from January 1, 1982, until the time of the petition, the respondent refused to pay the amounts it owed the petitioner for sewer services rendered. The court denied the respondent's motion to dismiss the petition, and the case proceeded to a hearing.

The parties agreed that the amount of disputed charges, as of August 7, 1986 was $581,482. ² At the hearing, the respondent sought to introduce three contracts into evidence. The respondent made an offer of proof that the contracts dealt with the issue of sewer charges and contained a covenant from the city of Hartford to provide sewer services in exchange for specific payments from the respondent. The court sustained the petitioner's objection that the documents were not relevant.

On August 7, 1986, the court made a finding that $581,482 was owed to the petitioner from the respondent. It stated further that "[g]iven the nature of the Housing Authority it would appear to the court that the best interests of all the parties would be served by postponing or delaying the effective date of the appointment of a receiver of rents until September 2, 1986, to give an opportunity for the payment of those arrearages." On August 29, 1986, the court appointed a receiver of rents, to become effective September 2, 1986. The respondent has appealed from the August 7, 1986 order claiming that the court erred (1) in denying its motion to dismiss, (2) in disregarding pertinent statutes, (3) in refusing to admit relevant contractual evidence, and (4) in granting the petition when there was not sufficient evidence to support the court's findings.

I

As a preliminary matter, the petitioner has raised the question of whether this appeal has been taken from a final judgment. In E.J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 627, 356 A.2d 893 (1975), the Supreme Court developed two distinct tests for determining whether there is an appealable final judgment in a case. One test is whether the rights of a party are concluded by the order. See Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639 (1961). The other test is whether the order terminates a separate and distinct proceeding. See Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381 (1953); see also Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84-85, 495 A.2d 1063 (1985). In applying both of these tests to the facts of the present case, we conclude that an appealable final judgment does exist.

When judgment was rendered on August 7, 1986, the rights of the parties had been concluded. The petitioner at that point had the right to $581,482 from the respondent. The respondent no longer had the right to contest the issue of liability. Further, at the conclusion of proceedings on August 7, 1986, the court ordered the execution of the judgment, in the form of the appointment of a receiver, unless the arrearages were paid before September 2, 1986. The court did not reserve decision on whether to appoint a receiver. It merely delayed the effective date of the appointment of that receiver.

Moreover, a separate and distinct proceeding was terminated once the court determined that the debt was due and a receiver should be appointed. See Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 524, 468 A.2d 574 (1983). The written order of August 29, 1986, was merely the implementation of the judgment of August 7, 1986. That the order which entered on August 7, 1986, did not provide that a receiver begin his or her duties immediately in no way detracts from its being a final adjudication of the amounts owed to the petitioner. We therefore will consider the claims raised by the respondent.

II

The respondent's first claim is that the court erred in denying its motion to dismiss, which raised the question of whether sewer services are a utility service for which a receiver can be appointed. The respondent contends that a utility receivership authorized by General Statutes § 16-262f is limited to the four utility services stated in the statute: water, gas, electric and telephone.

General Statutes § 16-262f(a) provides in relevant part that "[u]pon default of the owner, agent, lessor or manager of a residential dwelling who is billed directly by an electric, gas, telephone or water company or by a municipal utility for utility service furnished to such building," the utility may petition for appointment of a receiver of rents. The respondent interprets the term "utility service" not to include sewer charges. We disagree.

General Statutes § 16-1, the general definitions section for title 16 of the General Statutes, does not define either "municipal utility" or "utility service." Nor does chapter 283, which contains the statutory section at issue here, § 16-262f. Both the common usage of the statutory language and the statutory scheme, however, bear out that sewer services are included in the utilities referred to in the statute, and are thus the proper subject of a receivership.

The petitioner is a municipal corporation, created in 1929 by a special act of the General Assembly, 20 Spec. Acts 1204, No. 511, which was given "broad powers relating to sewage disposal, water supply and regional planning as well as powers limited to certain highways." Rocky Hill Convalescent Hospital, Inc. v. Metropolitan District, 160 Conn. 446, 450, 280 A.2d 344 (1971). Such a municipal entity is commonly considered a "utility." In chapter 293 of the General Statutes § 16-345(c), the term "public utility" is specifically defined to include the "owner or operator of underground facilities for furnishing ... sewage ... service...."

Moreover, as the trial court observed, sewer services are commonly considered utility services. In Clay v. East Orange, 177 N.J.Super. 79, 85, 424 A.2d 1199 (1980), the court stated that a "sewerage service charge is, in fact, a utility charge." In Ripperger v. City of Grand Rapids, 338 Mich. 682, 687, 62 N.W.2d 585 (1954), the court said, "Water bills and bills for use of the sewer are very much alike. A public sewer system is a public utility the same as a water system."

Accordingly, as a municipal corporation rendering utility services in the form of sewer services, the petitioner is a "municipal utility" within the meaning of the statute. Further, sewer services, like water services, are considered "utility services" and fit within the scope of General Statutes § 16-262f.

General Statutes § 16-262f was enacted as part of Public Acts 1975, No. 75-625, now codified as General Statutes §§ 16-262c through 16-262i. The legislature did, in some of the sections, refer to municipal utilities furnishing specific utility services. The referrals are specific and selective, however. The legislature did not specify the same utility services in each instance. For example, in § 16-262c(a), the legislature spoke of a "municipal utility furnishing electric, gas, telephone or water services"; in § 16-262c(b)(1) the legislature spoke of a "municipal utility furnishing electricity or gas"; and in § 16-262d(a), it spoke of a "municipal utility furnishing electric, gas or water service." In §§ 16-262e(a) and 16-262f(a), however, the legislature dispensed with the specification described above and simply used the phrase "municipal utility for utility service."

General Statutes § 16-262f provides for a specific schedule of payment priorities to be followed by the receiver after his or her appointment. Charges for electric, gas, telephone, water or oil which accrue after the appointment of the receiver are to be paid first. The statute provides next, however, for costs and expenses, and then for "any arrearage found by the court to be due and owing the company or municipal utility ... for service provided...." (Emphasis added.)

If the legislature had meant to provide only for payment to the five utilities provided for earlier in the statute, it would have again used the specific references. We interpret that general language to represent a conscious decision by the legislature not to limit the remedy created by these statutes to those municipal utilities providing only electric, gas, water or telephone services. We therefore conclude that the trial court correctly denied the respondent's motion to dismiss.

III

The respondent's next claim is that the court erred in disregarding state statutes that relieve the respondent of liability for sewer use charges. The respondent relies on General Statutes §§ 8-71 and 8-216(b), which it asserts obligate a housing authority to pay only a fixed sum to be determined by the municipality with the approval of the state commissioner of housing.

General Statutes § 8-71 provides: "In lieu of real property taxes, special benefit assessments and sewerage system use charges otherwise payable to such municipality, except in such municipalities as, by special act or charter, on May 20, 1957, had a sewer...