184 WINDSOR AVENUE, LLC v. STATE OF CONNECTICUT.

2006 Ct. Sup. 16950, 42 CLR 53
No. CV03-4018076SConnecticut Superior Court Judicial District of Hartford at Hartford
September 14, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON MOTION TO DISMISS
GRANT H. MILLER, JUDGE.

In May 1998 the State of Connecticut’s Board of Educational Services for the Blind (BESB) entered into two leases with the plaintiff for property located at 184 Windsor Avenue in the Town of Windsor. The terms of the leases provided for extensive renovations by the plaintiff, including extensive electrical work.

In this action, plaintiff claims that it was authorized by state employees to perform electrical work beyond what was called for in the lease documents, and that the State has refused to make payment in the amount of $99,940.90. Plaintiff obtained permission to sue the State from the Claims Commissioner on July 18, 2002 and filed suit in July 2003.

Plaintiff filed a request for leave to amend its complaint on March 30, 2002. The purpose of the request was to put plaintiff’s claims of breach of contract and quantum meruit in separate counts. The State has objected to the proposed, amended complaint and has also moved to dismiss so much of that complaint “as sounds in theory of breach of contract.” Ordinarily, these issues would be addressed separately, as the complaint has not yet been successfully amended so as to include the claim over which, according to the State, the court lacks subject matter jurisdiction. Since the court has, on this date, overruled the objection to the request for leave to amend the complaint, this procedural problem is now moot.

The defendant submits that the Claims Commissioner authorized plaintiff to sue the State on a quantum meruit theory, but not on a breach of contract theory, and that the Commissioner has the authority to determine which legal theories may be pursued by a claimant in the plaintiff’s position.

CT Page 16951 The State’s argument is based on a misunderstanding of the Claims Commissioner’s function. The position was created by the General Assembly in 1959 (1959 P.A. 685) to provide a means by which persons with potential claims against the State would, in appropriate cases, be able to get around the defense of sovereign immunity, and either 1.) receive fair compensation without going to court[1] or 2.) get the opportunity to sue the State as if it were a “private person.”[2] In either situation, the Commissioner’s decision is based on his or her balance of the equities between the parties.

Commissioner Smith’s decision in this matter makes complete sense when viewed in this context. The Hearings Officer who took evidence in this matter and submitted a proposed Memorandum of Decision did indeed determine that there was no merit to plaintiff’s claim that the State had violated the terms of the lease. This determination was made as part of the Hearings Officer’s recommendation that this claim was not a “just claim,” as defined in Conn. Gen. Stat. § 4-141.[3] In other words, the Hearings Officer did not recommend that the Commissioner recommend payment of the claim, by the General Assembly, as he is authorized to do under § 4-159. The Hearings Officer did, however, also find that this was “a claim that presents issues of law and fact that should permit the state to be sued under C.G.S. Section 4-160.” Neither that recommendation nor the Commissioner’s order granting permission to sue restricts the scope of that permission to a quantum meruit claim.

There is no support anywhere in Chapter 53 of the General Statutes for the State’s contention that the Claims Commissioner, in granting permission to sue the State, has the authority to decide which causes of action may be pursued and which may not. The process by which the Attorney General reviews claims and decides which ones will be opposed[4] was not established so that the Attorney General could come before the Commissioner and, essentially, move to strike anticipated causes of action which the State believes to be legally improper. The process exists so that the State’s lawyers have the chance to decide whether or not to argue the equities underlying each claim on behalf of their client.

Defense counsel has cited Judge Thompson’s decision i Esposito v. State of Connecticut, No. 358083 (J.D. of Hartford-New Britain at Hartford, April 20, 1989) to support its position. In that case, the plaintiff included causes of action CT Page 16952 based on facts not included in the notice of claim which the Commissioner approved, allowing plaintiff to sue the State. In the case now before the court, the information included in the notice of claim was clearly sufficient to put the Commissioner and the State on notice that plaintiff would be raising quantum meruit and breach of contract issues.

The motion to dismiss is therefore denied.

[1] Conn. Gen. Stat. §§ 4-158 and 159.
[2] Conn. Gen. Stat. §§ 4-160.
[3] “`[J]ust claim’ means a claim which in equity and justice the state should pay, provided the state has caused damage of injury or has received a benefit.”
[4] Conn. Gen. Stat. § 4-149.

CT Page 16953