Vejseli v. Pasha

• Decision Date: 29 May 2007
• Docket Number: No. 17734.,17734.
• Citation: 282 Conn. 561,923 A.2d 688
• Court: Connecticut Supreme Court
• Parties: Verdi VEJSELI et al. v. Gani PASHA et al.

923 A.2d 688

282 Conn. 561

Verdi VEJSELI et al. v. Gani PASHA et al.

No. 17734.

Supreme Court of Connecticut.

Argued March 15, 2007.

Decided May 29, 2007.

Alexandria L. Voccio, Hartford, for the appellants (defendant town of Watertown et al.).

Charles T. Forman, for the appellees (plaintiffs).

BORDEN, NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.

NORCOTT, J.

The sole issue in this certified appeal is whether a trial court's denial of a municipality's motion to dismiss based on governmental immunity is an appealable final judgment under State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). The defendants, the town of Watertown (town), and Richard Fusco and Joel Skilton, who are building officials employed by the town,¹ appeal, following our grant of certification,² from the judgment of the Appellate Court granting the motion of the plaintiffs, Verdi Vejseli and Anife Vejseli, to dismiss the defendants' appeal from the trial court's denial of their motion to dismiss the counts of the complaint pertaining to them. We conclude that the trial court's denial of the defendants' motion to dismiss based on governmental immunity is not an appealable final judgment because a municipality's governmental immunity shields it from liability only, and not from suit. Accordingly, we affirm the judgment of the Appellate Court dismissing the defendants' appeal.

The record reveals the following facts, as alleged in the complaint and construed in the manner most favorable to the pleader, and procedural history. The named defendant, Gani Pasha, and the defendant Myzejen Pasha; see footnote 1 of this opinion; decided to build a single-family dwelling on a parcel of property located in the town, with the intent of selling that house to a third party as new construction. The Pashas, who were not licensed building contractors, obtained the necessary permits from the town by falsely representing that the house was to be constructed for their own use and occupancy. The Pashas then built the house without the services of any licensed builders or contractors. In January, 2001, the Pashas and the plaintiffs entered into a real estate contract for the sale of the newly constructed house.³

In June, 2001, the town, following inspections by Fusco and Skilton, issued a certificate of occupancy for the premises certifying that the house and the property were in substantial conformity with the relevant building codes and ordinances of both the town and the state. The house contained, however, numerous code violations, including lack of proper insulation, fire separation walls, structural supports and attic access, as well as improperly installed plumbing, exterior siding, interior doors, exterior doors, windows and framing.

After the Pashas and the plaintiffs closed the sale on the premises, the plaintiffs moved into the house, which thereafter sustained severe water damage when an interior plumbing pipe burst in February, 2002. A subsequent investigation revealed that the burst pipe had been caused by a complete lack of insulation in the area surrounding it.

Thereafter, the plaintiffs brought this action seeking damages and injunctive relief, alleging in counts nine, ten, eleven and twelve of a thirteen count complaint, that: (1) Fusco and Skilton, in their individual capacities, negligently had inspected the house and certified that the construction complied with the applicable building codes; (2) Fusco and Skilton, in their official capacities, recklessly had inspected the new house; (3) the town had issued the certificate of occupancy in reckless and wanton disregard of health and safety; and (4) the town had engaged in reckless and wanton disregard of health and safety with respect to the hiring, training and supervision of its employees.⁴

In their answer, the defendants posed numerous special defenses, including that the plaintiffs' claims were barred by the doctrine of governmental immunity under both the common law and General Statutes § 52-557n,⁵ specifically subsection (b)(7) and (8). After the trial court granted the defendants' motion for summary judgment with respect to count nine of the complaint, the defendants moved to dismiss the remaining counts against the town and Fusco and Skilton in their official capacities. The defendants claimed that: (1) the town is immune from liability as to the recklessness claim both at common law and under § 52-557n; (2) Fusco and Skilton similarly are immune because a suit against a municipal employee in his official capacity amounts to a suit against the municipality itself; and (3) § 52-557n(b) does not create a private cause of action. The trial court denied the defendants' motion to dismiss, concluding that the "town has used the wrong vehicle to attack [these] counts of the complaint . . . [because] [g]overnmental immunity does not implicate subject matter jurisdiction."⁶

The defendants appealed from the denial of their motion to dismiss to the Appellate Court. The plaintiffs moved to dismiss the appeal for lack of appellate subject matter jurisdiction, claiming that the trial court's denial of the motion to dismiss based on governmental immunity did not constitute an appealable final judgment. The Appellate Court granted that motion and dismissed the defendants' appeal for lack of a final judgment. This certified appeal followed. See footnote 2 of this opinion.

On appeal, the defendants claim that, under State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566, the denial of a municipality's motion to dismiss based on governmental immunity is, although an interlocutory ruling, nevertheless an appealable final judgment. The defendants rely on Shay v. Rossi, 253 Conn. 134, 167, 749 A.2d 1147 (2000), overruled in part on other grounds by Miller v. Egan, 265 Conn. 301, 327, 828 A.2d 549 (2003), in which we concluded that the denial of the state's motion to dismiss based on sovereign immunity was an appealable final judgment under the second prong of the Curcio test because sovereign immunity protects the state both from suit, or having to litigate claims at all, and from liability. The defendants contend that the Shay final judgment exception should be extended to denials of municipalities' motions to dismiss based on governmental immunity because inter alia, our recent decision in Pane v. Danbury, 267 Conn. 669, 677-78, 841 A.2d 684 (2004), establishes that, like the state, municipalities are immune from suit, as well as from liability, in the absence of a statute authorizing an action against municipalities. The defendants also argue that requiring a municipality to defend against a lawsuit in the absence of a statute authorizing such a suit raises the same policy concerns that are implicated by the state's sovereign immunity.

In response, the plaintiffs claim that we should not extend the Shay final judgment exception because sovereign and governmental immunities are separate and distinct concepts. The plaintiffs argue that governmental immunity under the common law and § 52-557n provides municipalities with limited protection from liability only, and not from suit. The plaintiffs contend, therefore, that the rationale of Shay, namely, that the state would lose the benefit of its immunity from suit if it were forced to defend against an action without the availability of immediate review of an interlocutory order denying its motion to dismiss, does not apply in the context of municipalities' governmental immunity. We agree with the plaintiffs, and conclude that the denial of a municipality's motion to dismiss or to strike based on governmental immunity; see footnote 6 of this opinion; is not an appealable final judgment under the second prong of Curcio.

"As a general rule, an interlocutory ruling may not be appealed pending the final disposition of a case. . . . We previously have determined [however] that certain interlocutory orders have the attributes of a final judgment and consequently are appealable under [General Statutes] § 52-263.⁷ . . . In State v. Curcio, [supra, 191 Conn. at 31, 463 A.2d 566], we explicated two situations in which a party can appeal an otherwise interlocutory order: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. . . .

"The second prong of the Curcio test focuses on the nature of the right involved. It requires the parties seeking to appeal to establish that the trial court's order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [party] irreparably harmed unless they may immediately appeal. . . . Thus, a bald assertion that the defendant will be irreparably harmed if appellate review is delayed until final adjudication . . . is insufficient to make an otherwise interlocutory order a final judgment. One must make at least a colorable claim that some recognized statutory or constitutional right is at risk." (Citations omitted; internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 784-86, 865 A.2d 1163 (2005).

In Shay v. Rossi, supra, 253 Conn. at 165-67, 749 A.2d 1147, we concluded that "[t]he nature of sovereign immunity is such a right. It protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable. Therefore, unless the state is permitted to appeal a trial court's denial of its motion to dismiss, filed on the basis of a colorable claim of sovereign immunity, the state's right not to be required to litigate the claim filed against it would be irretrievably lost.

"We have in the past phrased the underlying rationale of the doctrine of sovereign immunity in theoretical terms. For example, in Horton v. Meskill, 172 Conn. 615, 623-24, 376 A.2d 359 (1977), we noted, as Mr. Justice Holmes wrote: A sovereign is exempt from...