Violano v. Fernandez

• Decision Date: 15 March 2005
• Docket Number: No. 24918.,24918.
• Citation: 88 Conn.App. 1,868 A.2d 69
• Court: Connecticut Court of Appeals
• Parties: Cynthia A. VIOLANO et al. v. Henry J. FERNANDEZ et al.

868 A.2d 69

88 Conn.App. 1

Cynthia A. VIOLANO et al. v.Henry J. FERNANDEZ et al.

No. 24918.

Appellate Court of Connecticut.

Argued October 28, 2004.

Decided March 15, 2005.

William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellants(plaintiffs).

James S. Del Visco, assistant corporation counsel, for the appellees(defendants).

SCHALLER, BISHOP and HENNESSY, Js.

SCHALLER, J.

The plaintiffs, Cynthia A. Violano and Cinderella of New Haven, LLC, doing business as Seasons (Cinderella), appeal from the judgment of the trial court rendered in favor of the defendants, Henry J. Fernandez III and the city of New Haven(city).On appeal, the plaintiffs claim that the court improperly struck their fourth revised complaint in its entirety.¹We affirm the judgment of the trial court.

In their operative complaint, filed on May 10, 2002, the plaintiffs alleged the following facts, which are relevant to our discussion of the issue on appeal.On June 16, 1999, the plaintiffs entered into a ten year lease for property located at 26-28 Townsend Avenue (property) in New Haven.²The plaintiffs also signed a purchase option agreement that gave Cinderella the exclusive right to purchase the property.Both the lease agreement and the purchase option were recorded on the appropriate land records.

The plaintiffs intended to operate a restaurant on the property, which was located next to a firehouse.The plaintiffs obtained the necessary zoning permits and health department certificates for the restaurant.They also acquired a liquor permit from the department of consumer protection.

On December 13, 1999, Fernandez, the director of the Livable City Initiative(Livable City),³ recommended that the city take the property by eminent domain and Livable City's board voted in accordance with his recommendation.On January 3, 2000, the city's board of aldermen (board) approved the taking for the purpose of expanding the firehouse.The city filed and recorded the certificate of taking in April, 2000.⁴Subsequent to the taking, on November 3, 2000, a robbery occurred at the property and all of the plaintiffs' items, renovations and fixtures were stolen or destroyed.

On June 18, 2001, the plaintiffs commenced the present action.On May 22, 2002, the defendants filed a motion to strike the entire complaint, alleging that it was insufficient to state a claim on which relief could be granted.Following a hearing on the defendants' motion, the court, on October 17, 2003, granted the defendants' motion.The defendants subsequently filed a motion for judgment, which the court granted on November 17, 2003.This appeal followed.Additional facts will be set forth as necessary.

As a preliminary matter, we identify the appropriate standard of review."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 [defendants' motion] is plenary....We 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....Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied....Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged....It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted....Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically."(Citations omitted; internal quotation marks omitted.)Commissioner of Labor v. C.J.M. Services, Inc.,268 Conn. 283, 292-93, 842 A.2d 1124(2004);see alsoHeim v. California Federal Bank,78 Conn.App. 351, 358-59, 828 A.2d 129, cert. denied, 266 Conn. 911, 832 A.2d 70(2003).We will address each of the stricken counts in turn.

I

The plaintiffs first claim that the court improperly struck count one of their complaint.In that count, the plaintiffs alleged that Fernandez negligently caused the property to be taken, and that, as a result of his negligence, they lost a valuable contract right to manage and own a restaurant located on the property, as well as expenses for obtaining permits and supplies.Specifically, the plaintiffs claimed that Fernandez was negligent by causing, allowing or permitting (1) the taking of their option to purchase without compensation, (2) the city to acquire the property without determining if it was for a public purpose, (3) the city to acquire the property in bad faith, (4) the taking by the city without determining its actual purpose and (5) the taking after failing to make a reasonable and proper determination of the city's true intention for the property.

In their motion to strike, the defendants argued, inter alia, that Fernandez could not be held liable for the taking because any such taking was a "legislative function that was carried out by [the board]."The trial court agreed with this argument.We are similarly persuaded.

"Eminent domain refers to a legal proceeding in which a government asserts its authority to condemn property."(Internal quotation marks omitted.)Citino v. Redevelopment Agency,51 Conn.App. 262, 279, 721 A.2d 1197(1998).General Statutes § 7-148(c)(3)(A) provides in relevant part that a municipality, such as the city, has the power to "[t]ake ... hold, condemn, lease, sell, manage, transfer, release and convey such real and personal property or interest therein absolutely or in trust as the purposes of the municipality or any public use or purpose, including that of ... health ... buildings or other structures ... require...."(Emphasis added.)Additionally, General Statutes § 48-6(a) provides in relevant part that "[a]ny municipal corporation having the right to purchase real property for its municipal purposes which has, in accordance with its charter or the general statutes, voted to purchase the same shall have power to take or acquire such real property...."The New Haven charter vests the power of eminent domain with the board.⁵Thus, although a broad reading of the allegation in the first count of the plaintiffs' complaint indicates that Fernandez was the director of Livable City, which made an improper recommendation in favor of taking the property, ultimately it was the board that actually took the property pursuant to the procedures found in the General Statutes and the city's charter.Thus, responsibility for the taking lies with the board, and not Fernandez.

We conclude that the allegations in count one of the complaint indicate that Fernandez was responsible for the taking of the property.We agree with the court that it was, in fact, the board that took the property.The plaintiffs, therefore, failed to state a claim on which relief could be granted, and the court properly struck count one of the complaint.

II

The plaintiffs next claim that the court improperly struck count two of their complaint.Specifically, they argue that, as of April 12, 2000, the city was the owner of the premises and that Fernandez, as director of Livable City, was the controller, possessor and manager of the premises and that, due to the defendants' negligence in failing to provide adequate security, the plaintiffs sustained damages.We agree with the plaintiffs that the court improperly concluded that they failed to plead that Fernandez controlled, possessed, managed or maintained the property after the taking.⁶Nevertheless, we affirm the court's judgment as to count two on alternative grounds.⁷

The defendants argue, in the alternative, that Fernandez, who was alleged to be an employee of the city, is entitled to qualified governmental immunity because any acts or omissions with respect to security related to the property were discretionary in nature.⁸The defendants further argue that the allegations set forth in the complaint do not implicate any of the exceptions applicable to qualified governmental immunity for discretionary acts.We agree.

"The [common-law] doctrines that determine the tort liability of municipal employees are well established. ...Although historically [a] municipality itself was generally immune from liability for its tortious acts at common law ... [municipal] employees faced the same personal tort liability as private individuals....Over the years, however, [t]he doctrine of [qualified] immunity has provided some exceptions to the general rule of tort liability for municipal employees....Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts....Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature....In contrast, [m]inisterial refers to a duty [that] is to be performed in a prescribed manner without the exercise of judgment or discretion."(Internal quotation marks omitted.)Myers v. Hartford,84 Conn.App. 395, 401-402, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582(2004);see alsoBurns v. Board of Education,228 Conn. 640, 645, 638 A.2d 1(1994).Put another way, "[t]he hallmark of a discretionary act is that it requires the exercise of judgment."(Emphasis added.)Lombard v. Edward J. Peters, Jr., P.C.,252 Conn. 623, 628, 749 A.2d 630(2000).

In the present case, the plaintiffs alleged in count two of their complaint that Fernandez negligently failed to install a security system or device to protect the property, failed to install adequate locks, failed to monitor adequately who possessed keys to the property, failed to supervise adequately the security of the property, failed to respond to reports of theft or loss at the property so as to prevent future losses, caused...