Tremont Pub. Advisors, LLC v. Materials Innovation & Recycling Auth.

216 Conn.App. 775

286 A.3d 485

TREMONT PUBLIC ADVISORS, LLC

v.MATERIALS INNOVATION AND RECYCLING AUTHORITY et al.

AC 45078

Appellate Court of Connecticut.

Argued September 15, 2022

Officially Released November 29, 2022

Michael C. Harrington, Hartford, for the appellant (plaintiff).

Alexander W. Ahrens, for the appellee (named defendant).

Cradle, Seeley and DiPentima, Js.

CRADLE, J.

The plaintiff, Tremont Public Advisors, LLC, appeals from the judgment of the trial court, rendered following the court's decision striking the plaintiff's complaint. The plaintiff claims that the court erred in concluding that the defendant, Materials Innovation and Recycling Authority (MIRA), formerly known as Connecticut Resources Recovery Authority,¹ is exempt from liability under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., for engaging in allegedly illegitimate bidding practices. We affirm the judgment of the trial court.²

The following undisputed facts and procedural history are relevant to this appeal. The defendant is a quasi-public agency responsible for providing solid waste disposal and recycling services to numerous municipalities in this state pursuant to the Connecticut Solid Waste Management Services Act, General Statutes § 22a-257 et seq.³ In 2011, the defendant issued a request for proposals for the provision of municipal government liaison services (liaison services). The plaintiff is a public affairs firm that submitted a proposal that complied with the request for proposals, but the defendant awarded the liaison services contract to the law firm of Brown Rudnick, LLP (Brown Rudnick), whose proposal was noncompliant.

Thereafter, the plaintiff brought this action against the defendant, alleging that the defendant had evaluated the bids to provide liaison services in a biased manner so as to ensure that Brown Rudnick was selected, that the public bidding process for the liaison services contract was a sham, and that the award of the contract to Brown Rudnick without a legitimate public bidding process violated General Statutes § 22a-268 and the defendant's own procurement policies.⁴ The plaintiff claimed that this conduct violated CUTPA.⁵

The defendant moved to strike the plaintiff's complaint, arguing, inter alia, that the defendant is exempt from liability under CUTPA based on General Statutes § 42-110c (a), which provides in relevant part: "Nothing in this chapter shall apply to: (1) Transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state or of the United States ...." The plaintiff argued that the exemption did not apply to the conduct of the defendant in this case. The trial court agreed with the defendant, concluding that "the [defendant] is a statutorily created quasi-governmental entity whose actions and transactions are permitted by law, administered by a regulatory board, and is empowered to enter into contracts like the one at issue here, as well as do all things necessary for the performance of its duties." Accordingly, the court granted the motion to strike and thereafter rendered judgment in favor of the defendant. This appeal followed.

"The standard of review in an appeal challenging a trial court's granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling 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." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc. , 277 Conn. 113, 117–18, 889 A.2d 810 (2006). Likewise, the determination of whether a party is exempt from CUTPA liability also presents a question of law of which our review is plenary. Connelly v. Housing Authority , 213 Conn. 354, 364–65, 567 A.2d 1212 (1990).

CUTPA provides, inter alia, that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b (a). As noted, however, § 42-110c (a), which is also referred to as the "governmental exemption," expressly exempts from liability "[t]ransactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state or of the United States ...." Pursuant to § 42-110c (b), a party claiming an exemption under § 42-110c (a) has the burden of proving its entitlement to such exemption.

The plaintiff claims that the trial court erred in granting the defendant's motion to strike on the ground that the defendant is exempt from liability under § 42-110c (a). We disagree. As the trial court aptly noted, our Supreme Court has previously construed the language of the exemption. In Connelly , the court held that the governmental exemption applied to allegations that the municipal housing authority had violated CUTPA by failing to provide adequate heat and hot water to its tenants because the transactions at issue, namely, the renting of subsidized apartments to low income tenants, were "expressly authorized and pervasively regulated by both the state department of housing and the [United States Department of Housing and Urban Development]." Connelly v. Housing Authority , supra, 213 Conn. at 361, 567 A.2d 1212.

Similarly, in Danbury v. Dana Investment Corp., 249 Conn. 1, 18–20, 730 A.2d 1128 (1999), our Supreme Court held that the governmental exemption provided by § 42-110c (a) (1) applied to allegations that the city of Danbury had violated CUTPA by overassessing real properties and incurring needless expenses by filing several tax foreclosure actions, rather than just one action. The court held that the exemption applied because the process of real estate assessment by a municipality is authorized and regulated by statute. Id., at 20, 730 A.2d 1128 ; see also Neighborhood Builders, Inc. v. Madison , 142 Conn. App. 326, 331, 64 A.3d 800 (municipality's act of allegedly overcharging for building permit fees is exempt from CUTPA liability because entire system of issuing building permits and collecting fees is authorized and regulated by state statute and regulation), cert. denied, 309 Conn. 905, 68 A.3d 660 (2013).

Here, the crux of the plaintiff's complaint against the defendant arises from the bidding process employed by the defendant to allegedly bypass the plaintiff and ensure that the contract at issue was awarded to Brown Rudnick. Although the plaintiff complains that the process employed by the defendant was improper, the bidding process the defendant engaged in before entering into a contract was expressly authorized and regulated by statute, which exempts the defendant from CUTPA liability pursuant to the governmental exemption. As noted by the trial court, the defendant was created by the legislature as the successor authority to the Connecticut Resources Recovery Authority by the enactment of General Statutes § 22a-260a. An examination of the comprehensive statutory scheme governing the operations of the defendant reveals that the authority of the defendant and the limits to that authority are extensively detailed by statute. General Statutes § 22a-265 (3) authorizes the defendant to, inter alia, "[m]ake...