Town of Cheshire v. State, Department of Correction

TOWN OF CHESHIRE v. STATE of Connecticut, DEPARTMENT OF CORRECTION

No. HHDCV126033159S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

December 12, 2017

UNPUBLISHED OPINION

OPINION

CESAR A. NOBLE, J.

The plaintiff, the Town of Cheshire (Town), initiated this action against the Connecticut Department of Corrections (DOC), on the ground that it suffered damages as a consequence of an unpaid for discharge of effluence into the Town’s wastewater treatment plant (WWTP) from facilities and buildings owned and operated by the DOC as a prison complex (Prison Complex). The Town’s complaint asserts causes of action for breach of contract, quantum meruit and injunctive relief. For the reasons detailed below, the court finds in favor of the DOC as to the breach of contract and injunctive relief claims and in favor of the Town on the basis of quantum meruit. The court awards damages in the amount of $1, 453, 607.30, which represents the actual amount of services it provided for wastewater treatment for which it was not paid by the DOC. The court, however, does not award interest on these damages and finds against the Town on its claim for a proportionate reimbursement from the DOC for a wastewater Facility Plan.

I Procedural History

The Town brought this action on June 21, 2012. The original complaint alleged that the DOC discharged more wastewater from its Prison Complex than that for which it had paid as a result of a meter limited in the amount of flow it could record. Furthermore, the wastewater flow was alleged to be in excess of amounts for which the DOC had contracted pursuant to an October 31, 1990 purported contract between the Town and the DOC (Agreement.) The original complaint sought a declaratory judgment ruling that the DOC breached an agreement with the Town, damages for breach of contract and compensation for a taking in violation of the fifth amendment of the United States constitution, and article first of the Connecticut constitution.

On July 1, 2014, after obtaining permission to file an untimely claim from the General Assembly, see Special Acts 2014, No. 14-9 the Town filed a claim with the Claims Commissioner. In its notice of claim, the Town asserted two claims. The Town alleged that the DOC failed to pay for the treatment of sewage in excess of that reported by a flow meter. The Town sought interest on the unpaid amounts. Second, the Town sought compensation for damages flowing from the discharge of sewage from the Prison Complex in excess of the capacity it purportedly purchased. The Town asserted that the excess consumption of its treatment capabilities limited growth in the Town, required the preparation and submission of a Facilities Plan Report to the DEEP, as well as upgrades to the WWTP facilities, and claimed damages therefor. The Claims Commissioner held a formal hearing on December 14, 2015 and January 5, 2016. The parties do not dispute that the commissioner granted the Town permission to sue.

The Claims Commissioner’s Memorandum of Decision dated February 10, 2016, provided that " the allegations in the present claim are that the [DOC] failed to pay for the actual amount of service that it received due to inaccurate measurements of wastewater flow and the resultant inaccurate invoices. While the [r]espondent, through counsel, raises valid questions about the [c]laimant’s billing practices, the State did benefit from its own imprecise meters that were used to measure the flow and used to calculate the invoices. [B]ased on the evidence presented at the Formal Hearing ... the [c]laimant has provided the [r]espondent State of Connecticut the benefit of higher amounts of wastewater treatment than were reported by flow meters, and that the Town ... was underpaid for the services it provides. This is indeed a ‘just claim’ and one that the State, were it a private individual, could be liable. This matter will benefit from a further in-depth examination of the evidence at [the] Superior Court." In re Claim of Town of Cheshire Conn. Office of the Claims Commissioner, Memorandum of Decision, Claim No. 23732 (February 10, 2016), p. 3.

The Town amended its complaint on February 29, 2016 (complaint). This remains the operative complaint. The complaint contains a similar factual predicate as the original but seeks damages for breach of contract and " underpayment for services" (respectively first and second counts). The second count alleges that the Town billed the DOC for treatment of effluent produced by the Prison Complex from 2002 through 2011 as measured by a chronically underreporting meter.

After learning of the underreporting, the Town conducted a review of the amount of discharge and made demands for payment of the shortfall, which resulted from the chronic underreporting. The rejection of these demands is claimed to have caused the Town damages. The third count demands injunctive relief to enjoin the DOC from discharging wastewater in excess of the contractually agreed upon volume. On August 15, 2016, the DOC filed its answer in which it denied the formation of a contract and the Town’s entitlement to damages or injunctive relief, and raised the special defense of sovereign immunity as to the third count.

A trial was held on January 31, 2017 and February 1, 2017. After post-trial briefing, argument was held on March 27, 2017. The court advised the parties that it intended to address the issue of whether the exception to sovereign immunity for " state officials acting in excess of their statutory authority" is properly raised where the only claims before the court were against a state agency, and permitted responsive briefs to be filed on or before June 9 2017.^[1]

II Factual Findings

As an initial matter, the court, as the trier of fact, must " weigh the evidence and determine [the] credibility of witnesses." Connecticut Light & Power Co. v Proctor, 324 Conn. 245, 259, 152 A.3d 470 (2016). " [I]t is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony." (Emphasis omitted; internal quotation marks omitted.) Palkimas v. Fernandez, 159 Conn.App. 129, 133, 122 A.3d 704 (2015). The court, mindful that the burden of proof in civil actions is on the plaintiff to prove the essential elements of his cause of action by a fair preponderance of the evidence, see Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 615 A.2d 1087 (1992), makes the following factual findings, most of which are not in dispute.

In 1989, the General Assembly passed Number 89-853 of the 1989 Public Acts (P.A. 89-853), entitled " An Act Facilitating the Construction of Correctional Institutions, " in part to address prison overcrowding. See Public Acts 1989, No. 89-853, § 5(a)(4). The Act sought to ameliorate the effect of prison growth on affected municipal infrastructure by requiring the office of policy and management to evaluate the impact of such growth on, inter alia, municipal sewage or water facilities, and to " negotiate a written agreement with the municipality specifying the actions to be taken by the DOC and the municipality to mitigate the impact of the project or inmate population increase on the municipality." Public Acts 1989, No. 89-853, § 7. Section 7 of Public Act 89-353 was codified as General Statutes § 18-87i. Significantly, the Act also provided that if funding was not available to " carry out the obligations of the DOC under the agreement, the secretary shall make recommendations for such funding to the governor and the [general [A]ssembly." Public Acts 1989, No. 89-853, § 7. Public Acts 89-853 was repealed in 1999 by Section 13 of Number 99-75 of the 1999 Public Acts (P.A. 99-75).

The DOC owns and operates the Prison Complex in the Town of Cheshire, which is comprised of a collection of buildings consisting of three separate incarceration/prison facilities, a training facility and numerous administrative buildings. The DOC entered into the Agreement with the Town to address a variety of issues related to the construction of the Prison Complex, including road and traffic improvements, public safety and the Town’s water pollution control plant. Section 4 of the Agreement, in relevant part, provides:

The STATE hereby agrees to purchase capacity in the Town of Cheshire’s water pollution control plan in the amount of 350 thousand gallons per day (gpd) of water (135 gpd/inmate) for $1, 744, 000 or such amount that may ultimately result from the application of the following formula:

Cost to State = 350, 000 x Total Cost of expansion of the Facility

3, 500, 000 from a capacity of 1.5 million gpd to 3.5 million gpd

The payment of $1, 744, 000 by the STATE to the TOWN will serve as a grant thus augmenting the amount of the total State grant to the Town and reducing the amount of the loan by the State to the Town in conjunction with the application for funding under the Clean Water Act between the State Department of Environmental Protection (DEP) and the Town.

In 1990, the WWTP operated under permits that limited the capacity of the plant to an average daily flow of 3, 500, 000 gallons per day. The Town, through its Water Pollution Control Authority (WPCA), operates the WWTP under a National Pollution Discharge Elimination Permit (NPDES Permit) administered by the Connecticut Department of Energy and Environmental Protection (DEEP). One of the terms of the NPDES Permit required the Town to prepare a facility plan (Facility Plan) to accommodate future increases in flow at such time as the six-month moving average daily flow to the plant exceeded 90 percent of its permitted capacity.

Wastewater generated by the Prison Complex is routed through a...