Sagamore Group, Inc. v. Commissioner of Transp., 10799

• Decision Date: 22 September 1992
• Docket Number: No. 10799,10799
• Citation: 614 A.2d 1255,29 Conn.App. 292
• Court: Connecticut Court of Appeals
• Parties: SAGAMORE GROUP, INC. v. COMMISSIONER of TRANSPORTATION.

Page 1255

614 A.2d 1255

29 Conn.App. 292

SAGAMORE GROUP, INC. v. COMMISSIONER of TRANSPORTATION.

No. 10799.

Appellate Court of Connecticut.

Argued June 8, 1992.

Decided Sept. 22, 1992.

Martin A. Clayman, Bloomfield, for appellant (plaintiff).

George E. Finlayson, Asst. Atty. Gen., with whom, on the brief, was Richard Blumenthal, Atty. Gen., for appellee (defendant).

Before FOTI, LANDAU and FREDERICK A. FREEDMAN, JJ.

FREDERICK A. FREEDMAN, Judge.

The plaintiff appeals from the judgment of the trial court dismissing the plaintiff's complaint for lack of subject matter jurisdiction. The plaintiff claims that the trial court improperly (1) refused to permit the plaintiff to present expert testimony at the hearing on the defendant's motion to dismiss, (2) determined that the contract between the plaintiff and the defendant did not provide for "construction management" services for purposes of General Statutes § 4-61(a) and thus that there was no waiver of sovereign immunity, and (3) determined that the statute of limitations contained in General Statutes § 4-61(a) applied to the plaintiff's cause of action and precluded it from maintaining the action. We affirm the judgment of the trial court.

On December 30, 1985, the plaintiff and the defendant entered into a contract for services. Under the contract, the plaintiff was to provide consulting and supportive services as specified in the contract, on behalf of the defendant, to disadvantaged business enterprises and women's business enterprises (the enterprises) doing work on Connecticut department of transportation (DOT) projects. The contract provided that the defendant was to pay the plaintiff on an hourly basis for services rendered, with a maximum project cost of $881,400.

After the contract was executed, the plaintiff began providing the contract services on behalf of the defendant. The services included assisting the enterprises in obtaining certification and recertification for contracts with the DOT, reviewing all DOT contracts for contracting opportunities for the enterprises, making on-site visits to monitor the enterprises' job progress and various details relating to their job performance, and serving several other functions related to the enterprises in their dealings and relationships with the DOT.

The plaintiff submitted bills totaling $153,184.20 to the defendant for services rendered. The defendant, however, paid only $95,013.20 for the services, leaving an unpaid balance of $58,171. The unpaid balance represented fees for services billed by the plaintiff, the validity of which was disputed by the defendant. The defendant did not issue a certificate of acceptance for any of the work performed by the plaintiff.

In March, 1987, the defendant suspended the plaintiff's performance of services under the contract pending an audit of the plaintiff's books and records of account. The defendant refused to pay the plaintiff the balance due for the services previously rendered under the contract. On June 3, 1987, the plaintiff notified the defendant by letter that it protested the suspension and notified the defendant of its intention to sue for a breach of contract. On September 25, 1987, the defendant terminated the contract between the parties. The plaintiff commenced this action on April 19, 1991, three and one-half years after the formal termination, claiming the unpaid balance due under the contract for the work performed before the suspension.

The defendant moved to dismiss the plaintiff's complaint for lack of subject matter jurisdiction. In its motion, the defendant claimed that the contract at issue was not one for the provision of construction management services under General Statutes § 4-61(a) and thus the defendant was shielded from liability under the doctrine of sovereign immunity. ¹ Alternatively the defendant claimed that even if the contract did provide for construction management services under § 4-61(a), the plaintiff's action was barred by the statute of limitations contained in that section.

At the hearing on the defendant's motion to dismiss, the plaintiff was prepared to present expert testimony concerning the type of services it performed under the contract and whether those services were construction management services for purposes of § 4-61(a). The plaintiff requested an opportunity to offer such expert testimony, but the trial court refused its request.

In its memorandum of decision, the trial court concluded that the contract between the parties did not call for the provision of construction management services by the plaintiff to the defendant. In reaching this conclusion, the trial court specifically stated: "The contract does not call for the plaintiff to supervise actual construction, to manage the building process, or to perform on state projects any construction or management duties. As a consequence, this court concludes the contract does not provide for 'construction management' services within the meaning of § 4-61(a). See K.M. Cushman, Construction Litigation (1981) pp. 329-335." The trial court also concluded, in the alternative, that even if the contract called for construction management services within the meaning of § 4-61(a), the plaintiff's action was barred by that section's statute of limitations.

The plaintiff's primary claim on appeal is that the trial court improperly determined that the contract was not one for construction management services within the meaning of § 4-61(a) and, therefore, the trial court improperly dismissed the action for lack of subject matter jurisdiction because the action was barred by the doctrine of sovereign immunity. As a preliminary matter, however, we must first address the issue of whether the trial court properly denied the plaintiff's request to present expert testimony at the hearing on the defendant's motion to dismiss.

I

" 'It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases'; Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983); Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972); Murphy v. Ives, 151 Conn. 259, 262-63, 196 A.2d 596 (1963); 'and that since the state can act only through its officers and agents a suit against a state officer is in effect one against the sovereign state.' Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977).... The state legislature ... possesses the authority to abrogate any governmental immunity by statute that the common law gives to the state and municipalities. Id." White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990).

"Section 4-61 of the General Statutes is an express waiver of sovereign immunity limited to actions brought against the state pursuant to certain types of contracts involving the construction of public works between the state and other parties." Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 355, 422 A.2d 268 (1979). For purposes of the plaintiff's action, the crucial phrase in the statute is the one defining the types of contracts that come within the law's waiver: "a contract ... for the design, construction, construction management, repair or alteration of any state highway, bridge, building or other public works of the state...." General Statutes § 4-61(a). The critical term "construction management" was added to the statute by Public Acts 1985, No. 85-113. That term is not defined in the statutes and the scant legislative history on the 1985 amendment provides us with little guidance as to the term's meaning and interpretation. The plaintiff asserts that "construction management" includes the work described in and performed under its contract with the state, and that the state has therefore consented to be sued for a breach of that contract. We do not agree.

Practice Book § 143 permits a party to move for dismissal of an action on the basis of a lack of subject matter jurisdiction. A motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity bars the action. Wiley v. Lloyd, 4 Conn.App. 447, 449, 495 A.2d 1082 (1985). "[W]hen a motion to dismiss does not seek to introduce facts outside of the record it is equivalent to our former motion to erase and admits all well pleaded facts, the complaint being construed most favorably to the plaintiff. Brewster v. Brewster, 152 Conn. 228, 233, 206 A.2d 106 (1964)." American Laundry Machinery, Inc. v. State, 190 Conn. 212, 217, 459 A.2d 1031 (1983). A motion to dismiss may raise issues of fact and would, therefore, require a hearing to determine the facts. Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). Where, however, no genuine issue as to a material fact exists a hearing is not required because the motion merely presents a question of law as applied to the facts well pleaded.

The interpretation of statutes presents a question of law. Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 139-40, 509 A.2d 1050 (1986). The interpretation of a contract, however, is generally a question of fact. Gurliacci v. Mayer, 218 Conn. 531, 567, 590 A.2d 914 (1991); Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987). In its motion to dismiss, the defendant did not contest any of the factual allegations contained in the plaintiff's complaint. It accepted them as true. ² Because the trial court was required to interpret a statute in the context of a motion to dismiss, which admits all well pleaded facts; American Laundry Machinery, Inc. v. State, supra; the trial court properly decided the motion on the record alone. Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988).

The sole question before the trial court was the definition of construction management as contemplated in the statute, and whether the services performed by the plaintiff, as alleged in its complaint...