Pepe v. City of New Britain, 12950
Decision Date | 21 April 1987 |
Docket Number | No. 12950,12950 |
Citation | 203 Conn. 281,524 A.2d 629 |
Court | Connecticut Supreme Court |
Parties | Louis R. PEPE, et al. v. CITY OF NEW BRITAIN. |
Joseph F. Skelley, Jr., Hartford, for appellant (defendant).
Thomas F. Parker, with whom was Brenda M. Bergeron, Hartford, for appellees (plaintiffs).
Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, SANTANIELLO and KULAWIZ, JJ.
The plaintiffs, a law firm and one of its members, brought this action to recover the reasonable value of legal services rendered on behalf of the common council of the defendant, the city of New Britain. The trial court, Allen, J., found that, because the corporation counsel was disqualified from representing the common council in its dispute with the mayor, the common council had implied authority to engage independent counsel at the city's expense. Finding further that the council properly exercised that implied authority by retaining the plaintiffs pursuant to a resolution it had adopted, the court granted the plaintiffs' motion for summary judgment in respect to liability. After a further hearing on the issue of damages before the trial court, Aspell, J., the plaintiffs recovered the sum of $23,513.74 and costs from the defendant. The defendant contests only the issue of liability. 1 We find no error.
In 1976 and 1977 the defendant was receiving funds from the federal government pursuant to the Housing and Community Development Act of 1974, Pub.L. No. 93-383, 88 Stat. 633 (1974). A majority of the common council challenged the authority of New Britain's mayor, Matthew Avitabile, individually to execute on behalf of the city contracts requiring the expenditure of such funds. The council insisted that its approval was a requisite to any such expenditure, and therefore to the making of those contracts. Deciding that legal action was necessary to effectuate its challenge, the council, on January 4, 1977, over the mayor's veto, adopted "Resolution No. 12349." The resolution provided, "that effective upon passage of this resolution, the Common Council, upon approval of a select committee to be appointed by the Mayor Pro Tem and the Majority Leader, has the authority to retain legal counsel when it deems necessary and only for purposes involving City business; be it further resolved, that the powers conferred by this resolution, be and are hereby terminated on November 1, 1977."
In a memorandum dated February 2, 1977, Salvatore Gionfriddo, the majority leader of the common council, requested, "on behalf of the Common Council as a whole," the approval of the select committee "in order to retain Louis R. Pepe, Esq., of the firm of Alcorn, Bakewell & Smith." After the select committee had approved the retention of Pepe, ten members, or a two-thirds majority, of the common council, which had been informally polled, endorsed the selection. Five remaining members objected to representation by Alcorn, Bakewell & Smith, and instead requested the corporation counsel to appoint a special assistant corporation counsel to represent them.
Before the common council initiated its contemplated suit in opposition to Avitabile's assumption of control over the federal funds, three taxpayers brought an action challenging the validity of Resolution No. 12349. Grogan v. Common Council, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 208674-3 (January 10, 1977). In order to avoid a conflict of interest in that taxpayers' suit, the corporation counsel declined to represent the common council, which consequently retained the plaintiff firm of Alcorn, Bakewell & Smith. The parties to the taxpayers' suit arrived at a settlement prior to trial, entering into a stipulation that the resolution would be in effect only in respect to the particular dispute between the council and the mayor. 2
The common council, again represented by Pepe of Alcorn, Bakewell & Smith, subsequently brought suit against Avitabile in the United States District Court. Common Council v. Avitabile, United States District Court at Hartford, Docket No. H-77-231 (October 28, 1977). After that court rendered summary judgment in favor of Avitabile, the plaintiffs in the present case submitted their bills to the city of New Britain for services rendered on behalf of the council in both the taxpayers' suit and the federal suit. When the city refused to pay those bills, the plaintiffs, in 1980, brought the action that is now before us. In this appeal from the summary judgment rendered in favor of the plaintiffs, the defendant claims that, because the common council did not retain the plaintiffs by "a vote of the majority pursuant to a duly noticed and held meeting," which, the defendant maintains, is a general requirement of the city charter incorporated in Resolution No. 12349, such retention of the plaintiffs was not authorized by the resolution and was therefore illegal.
At the outset we address the contention of the plaintiffs that the issue raised by the defendant is not properly before us and that this appeal should therefore be dismissed. The plaintiffs first assert that the failure of the defendant to plead specially pursuant to Practice Book § 164 3 that the common council had not complied with Resolution No. 12349 precluded it from subsequently raising the issue at the summary judgment hearing. Prior to the day of that hearing, the only theory presented by the defendant, as alleged in its special defense, had been that the retention of the plaintiffs had contravened the city charter, which establishes the circumstances under which outside counsel may be employed. At the hearing, however, the defendant presented an affidavit and certain memoranda in which the assertion was made that the council had not properly followed the resolution. The plaintiffs did not object to the introduction of those materials.
It is clear that in deciding a motion for summary judgment the trial court may consider, in addition to the pleadings, "affidavits and any other proof submitted" by the parties. Practice Book § 384; see Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023 (1985). Practice Book § 381 provides in part that "[s]upporting and opposing affidavits shall ... set forth such facts as would be admissible in evidence...." This court has often held that the failure to file a special defense may be treated as waived when no objection has been raised to the offer of evidence on the issue. See Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 132, 523 A.2d 1266 (1987); Damora v. Christ-Janer, 184 Conn. 109, 112, 441 A.2d 61 (1981); Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964). Because the plaintiffs did not object to the defense proffered by the defendant regarding Resolution No. 12349, which arguably should have been pleaded specially, facts relating to that defense would have been admissible in evidence. Thus, the defendant's failure to plead specially noncompliance by the common council with Resolution No. 12349 did not preclude the consideration by the trial court of that issue as presented in the affidavit and memoranda, because the failure of the plaintiffs to object thereto waived the pleading deficiency.
The plaintiffs' related assertion is that because the defendant introduced materials raising the noncompliance issue on the day of the summary judgment hearing, that issue was not timely raised and therefore not properly before the court. The relevant rule, found in Practice Book § 380, which deals with proceedings upon summary judgment motions, is that "[t]he adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence." (Emphasis added.) Relying upon this court's recent decision in Hughes v. Bemer, 200 Conn. 400, 510 A.2d 992 (1986), the plaintiffs maintain that the use of the word "shall" in § 380 makes mandatory the filing of evidence prior to the day of the summary judgment hearing.
In Hughes v. Bemer, supra, this court construed the language of Practice Book § 155, which provides that an adverse party who fails to file a timely memorandum of law in opposition to a motion to strike "shall be deemed by the court to have consented to the granting of the motion." We ruled that such a filing is mandatory under § 155; Hughes v. Bemer, supra at 402, 510 A.2d 992; and therefore that the failure to file a memorandum in opposition to the motion to strike was a sufficient alternative ground upon which to uphold the granting of the motion. We declined to consider the substantive ground relied upon by the trial court, although the moving parties, as in this case, had not raised in the trial court noncompliance with the rule as a ground for granting the motion. Although § 380 declares that materials in opposition to a motion for summary judgment "shall" be filed the day before the hearing, it does not contain any provision corresponding to the dictate of § 155 that the consequence of noncompliance with the rule is that the delinquent party "shall be deemed by the court to have consented to the granting of the motion." In Batick v. Seymour, 186 Conn. 632, 645-46, 443 A.2d 471 (1982), we held that, despite the prescription of § 380 that " '[t]he adverse party ... shall file opposing affidavits,' " the plaintiffs' failure to do so was not fatal under the circumstances of that case. 4 Although Batick dealt with the failure to file an opposing affidavit, whereas the case before us involves the timeliness of such a filing, the sentence from § 380, and therefore the word "shall," applies in both instances. We therefore adhere to our prior construction of the relevant language of § 380 and decline to construe such language as a jurisdictional barrier that the parties cannot waive or the court may not excuse under any circumstances. Cf. Blancato v....
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