Opinion
No. 480903
September 20, 2005
MEMORANDUM OF DECISION
The defendant, Cross Sound Cable Company, LLC, moves to dismiss this action on the ground that the plaintiffs lacked standing to bring it because they were not the lessees of the shellfish bed at issue. The defendant contends that the court therefore lacks subject matter jurisdiction.
On August 12, 2003, the plaintiffs, Benjamin Burgos, a licensed shellfish harvester, and Ben's Shellfish, LLC, filed a five-count complaint against the defendant. This action arises out of alleged damage to a shellfish bed, the lease for which was allegedly assigned to the plaintiffs, as a result of the defendant's installation of a submerged electric transmission cable across the Long Island Sound, from New Haven, Connecticut to Brookhaven, New York, in May 2002. In the complaint, the plaintiffs allege that Burgos leased a shellfish bed designated as L-590 (lot 590) from the state of Connecticut. Further, they allege that the defendant: (1) negligently installed the cable in a manner that caused excessive amounts of silt, sediment and clay to travel and settle upon the bed; (2) used an unauthorized technique to loosen the cable; (3) caused silt, clay, sediment and other materials to enter the bed; (4) created a nuisance by causing silt sediment, clay and other materials to become waterbourne; and (5) violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b.
The plaintiffs allege that the defendant's conduct damaged the shellfish in the bed and the bed itself, causing the plaintiffs a loss in revenue and income. They assert claims against the defendant for negligence, trespass, nuisance, equitable relief and for the violation of the Connecticut Unfair Trade Practices Act pursuant to General Statutes § 42-110a et seq. The defendant moved to dismiss the action on the ground that the plaintiffs lack standing to bring the claims because they are not the real owners of the shellfish bed lease. The plaintiffs filed a memorandum in opposition to the motion in which they asserted that they have standing by virtue of an assignment in which Alphonse Gambardella and Andrew Verderame, who leased bed L-590 from the state, assigned their interests in the bed to the plaintiffs.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests . . . whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "[I]n ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003).
"The grounds which may be asserted in [a motion to dismiss include] . . . lack of jurisdiction over the subject matter . . ." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003). "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 417, 797 A.2d 494 (2002).
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests." (Internal quotation marks omitted.) Smith v. Snyder, 267 Conn. 456, 460, 839 A.2d 589 (2004).
"Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 486, 815 A.2d 1188 (2003).
"Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved . . . The fundamental test for determining aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Smith v. Snyder, supra, 267 Conn. 460-61.
"[S]tanding does not hinge on whether the plaintiff will ultimately be entitled to obtain relief on the merits of an action, but on whether he is entitled to seek the relief." (Internal quotation marks omitted.) Cottman Transmission System, Inc. v. Hocap Corp., 71 Conn.App 632, 638, 803 A.2d 402 (2002). "When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has legally protected interest that the defendant's action has invaded." (Internal quotation marks omitted.) Id., 639.
I.
The plaintiffs allege that they have standing to maintain this action because they are lessees of lot 590 and that the defendant's conduct damaged their rights in this property. "A lease is a contract." Ingalls v. Roger Smith Hotels Corp., 143 Conn. 1, 6, 118 A.2d 463 (1955). "It is axiomatic that an action upon a contract or for breach of a contract can be brought and maintained by one who is a party to the contract sued upon . . ." (Internal quotation marks omitted.) Cottman Transmission System, Inc. v. Hocap Corp., supra, 71 Conn.App. 639. Thus, on the face on the complaint, the plaintiffs satisfy the test for classical aggrievement in that they allege that they have a specific, personal and lease interest in lot 590 and that the defendant's conduct has specially and injuriously affected their rights. If the defendant had not filed any affidavits in support of its motion to dismiss, the court would end its inquiry here and deny the defendant's motion.
The defendant, however, denies that the plaintiffs have standing and filed affidavits in support of its motion. "Where . . . as here, the motion [to dismiss] is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
Moreover, in some circumstances, "[a] motion to dismiss may . . . raise issues of fact and would, therefore, require a . . . hearing [to determine the facts] . . . [A]ffidavits are insufficient to determine the facts unless, like the summary judgment [affidavits], they disclose that no genuine issue of material fact exists . . . When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." (Citations omitted; internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). In such circumstances, "[t]he plaintiff [is] entitled to an evidentiary hearing at which it could attempt to establish its authority before the court [finds] that it lacked that authority." Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 833, 826 A.2d 1102 (2003).
When the parties initially argued the motion before this court, the plaintiffs maintained that the court was required to hold an evidentiary hearing on their claim of ratification. After reviewing the motions and the affidavits, the court agreed, and on May 23, 2005, the court convened a hearing. At the hearing, the parties offered, and the court admitted as exhibits, most of the documents that the parties had earlier submitted with their briefs in support of their respective positions on the motion to dismiss.
As the defendant observes, the basis of the plaintiffs' claim of standing is that Burgos is the sub-lessee of shellfish bed lot 590 by virtue of a sublease or assignment of that lot from Gambardella and Verderame. The evidence submitted by the parties establishes the following facts. On March 8, 2000, John Volk, bureau director for the commissioner of the department of agriculture, leased lot 590 to Gambardella and Verderame for three years. That lease provides in relevant part "that subject to the approval of the Commissioner, the Lessee or its legal representative may assign or transfer this lease, provided that such assignment or transfer shall be recorded in the official records of the Commissioner on forms provided by the Commissioner, and kept at the Office of the Bureau of Aquaculture, Department of Agriculture, Milford, Connecticut. Any assignment of transfer which is made without the approval of the Commissioner or is not recorded by the Lessee shall, at the option of the Commissioner terminate this lease." (Emphasis added.) On September 27, 2000, Gambardella and Verderame purported to assign their shellfish bed lease of lot 590 to Benjamin Burgos and Carl Selvaggi, by way of a notarized document entitled Transfer of Lease. In this document, Gambardella and Verderame purported to transfer and assign all of their rights, title and interest in lot 590 to Burgos and Selvaggi. At the foot of the document, the following sentence appears: "The Commissioner of the Department of Agriculture assents to and approves the said transfer and assignment." Beneath this sentence is a line for a representative of the commissioner of the department of agriculture to sign. That portion of the document is unsigned. It is undisputed that the commissioner neither approved nor disapproved the purported assignment of lease.
On February 26, 2003, the commissioner renewed the lease for lot 590 to Gambardella and Verderame for an additional three-year term though March 8, 2006.
On January 28, 2002, Gambardella and Verderame wrote a letter to the department of agriculture stating that they gave "full authorization to Ben's Shellfish, LLC or Benjamin Burgos on all decisions and payments that are due on L-590 and L-591. This also includes giving (indefinite) authorization to Ben's Shellfish or Benjamin on renewal of the above-mentioned leases as well as lease payments. All bills, here on forward, should be sent directly to Mr. Burgos at the address you have on file." Thereafter, On April 5, 2002, John Volk, director of the bureau of aquaculture and laboratory of the state department of agriculture, sent a letter directly to Burgos stating:
This is to notify you that effective May 1, 2002, invoices for shellfish lease rentals will be mailed to the address of one leaseholder only. Payments must be made for the total amount due. Partial payments by multiple parties will no longer be accepted.
Also, the letter signifying intent to renew a lease must be signed by all owners of record but will only be mailed to one leaseholder at the address on file in this office.
On February 1, 2002, and February 4, 2003, the department invoiced Burgos for the lease payments for lot 590. On the earlier invoice, the names and addresses of Gambardella and Verderame are crossed out and the invoice is directed to Burgos. The later invoice is directed to Burgos. Ben's Shellfish, LLC made the lease payments for lot 590 in February 2002, and March 2003, and the department accepted these payments.
The defendant has submitted the affidavit of David Carey, director of the bureau of aquaculture, for the department of agriculture, in which he attests that shellfish bed leases can only be assigned with the approval of the commissioner of the department, that the commissioner has not approved the assignment of lease to the plaintiff and that the commissioner did not act on the document submitted to the bureau of aquaculture in January 2002, in which Gambardella and Verderame purported to give the plaintiffs certain authorizations concerning lot 590. Moreover, he notes that there was a moratorium on the assignment of shellfish bed leases from July 1, 2002 to January 1, 2004.
If the provision in the lease requiring consent for the assignment thereof were in a lease between private parties and was the sole basis of the defendant's claim that the plaintiffs lack standing to maintain this action, the defendant's motion would be governed by Rumbin v. Utica Mutual Ins. Co., 254 Conn. 259, 263, 757 A.2d 526 (2000). In Rumbin, the Supreme Court held that an antiassignment provision that does not limit the power to assign or expressly invalidate the assignment does not render the assignment of a contract ineffective, although it may entitle the non-violating party to other relief.
Here, however, the lease is not between private parties, and the provision therein providing for an assignment subject to the approval of the commissioner is not the sole basis of the defendant's claim that the plaintiffs lack standing. At oral argument and subsequently, at the evidentiary hearing held on the motion, the defendant relied on General Statutes § 26-194, which provides in relevant part: "All assignments or transfers of leases shall be subject to the approval of the commissioner and shall be recorded in his records."
In 2000, at the time that Gambardella and Verderame executed the lease and the assignment, General Statutes § 26-194 provided in its entirety: "(a) The Commissioner of Agriculture may lease in the name of the state, under such regulations as he may prescribe and for a period not longer than ten years, all shellfish areas that have been conveyed to the state or placed under state jurisdiction by the town of West Haven and any undesignated grounds, within the exclusive jurisdiction of the state, for the purpose of planting and cultivating shellfish. The authority herein conferred shall include the Cormell Reef, Portchester, Great Captain's Island, Field Point and Greenwich Point natural beds as located and described in section 3295 of the general statutes, revision of 1918. Any person desiring to lease grounds for such purpose shall make application in writing to the commissioner and all grounds leased by authority of the provisions of this section shall be leased to the highest responsible bidder, for a minimum fee of two dollars per acre. The form of such application and lease shall be approved by the Attorney General, and all such leases shall be recorded in the records of the commissioner. No lease shall be granted to a resident of a state which does not lease shellfish grounds to residents of this state, except that any nonresident who was granted a lease on or before October 1, 1985, may, upon the expiration of such lease, apply for a renewal or further lease as provided in this section. The commissioner shall grant any such lease to nonresidents upon the same terms and conditions as to residents of this state. Any lessee or holder of oyster grounds, on the expiration of any lease thereof which has been or which may be granted, shall, upon application to the commissioner, have the preference in the reletting of such ground for a like term to that granted in the original lease, unless such applicant, at the time for granting such application, is in arrears for rent on the original lease of such ground. Such application for such renewal or further lease shall be granted without notice or advertisement of the pendency thereof; provided no renewal or further lease of such ground shall be granted when the commissioner, for cause, ceases to lease such ground for oyster culture. All assignments or transfers of leases shall be subject to the approval of the commissioner and shall be recorded in his records. Any person who interferes with, annoys or molests another in the enjoyment of any lease authorized by the provisions of this section shall be subject to the penalties provided in section 26-237. The provisions of sections 26-212, 26-215, and 26-232 shall not apply to any shellfish grounds leased pursuant to the provisions of this section.
"(b) The commissioner may designate an agent within the department to exercise the authority of said commissioner under this section."
"There is no dispute that parties contract with reference to existing law, except when the contract discloses a contrary intention. Ciarleglio v. Benedict Co., 127 Conn. 291, 293, 16 A.2d 593 (1940). Unless the agreement indicates otherwise, a statute existing at the time an agreement is executed becomes a part of it and must be read into it just as if an express provision to that effect were inserted therein." Hatcho Corp. v. Della Pietra, 195 Conn. 18, 21, 485 A.2d 1285 (1985). Because there is no claim that the lease indicated that § 26-194 did not apply, and because one of the contracting parties is the commissioner, and she could not agree otherwise, § 26-194 is read into the lease between Gambardella-Verderame and the commissioner as if it were an express provision thereof. The first issue, then, is whether § 26-194 requires that the commissioner must consent to an assignment before the assignment will be valid.
The plaintiffs argue that the commissioner's prior consent is not necessary. Specifically, the plaintiffs point to language in the lease that vests the commissioner with the option to terminate a lease that is assigned without approval. Nevertheless, the penultimate question is not what the lease provides but what the statute requires. "No administrative or regulatory body can modify, abridge or otherwise change the statutory provisions under which it acquires authority unless the statute specifically grants it that power." Lurie v. Planning Zoning Commission, 160 Conn. 295, 319, 278 A.2d 799 (1971). Accordingly, the court turns to the interpretation of the statute.
General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." In Connecticut, "[t]he test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." Carmel Hollow Associates Ltd. Partnership v. Bethlehem, 269 Conn. 120, 134 n. 19, 848 A.2d 451 (2004).
The common dictionary definition of "subject to," in the sense apparently meant here, is "contingent on or under the influence of some later action." Merriam-Webster's Collegiate Dictionary (10th Ed. 1995). The phase "subject to" is defined by Black's Law Dictionary, (6th Ed. 1990), as meaning "[l]iable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for." In the context of the question of whether the commissioner's consent is required before an assignment of a lease is valid pursuant to General Statutes § 26-194, the court finds that the phase "subject to" is ambiguous. In such circumstances, the court is required to utilize the other principles of statutory construction. "When the meaning of a statute is not plain and unambiguous, [courts] look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter [for interpretive guidance] . . . [O]ur fundamental objective [in statutory interpretation] is to ascertain and give effect to the apparent intent of the legislature . . ." (Citation omitted; internal quotation marks omitted.) Southern New England Telephone Co. v. Dept. of Public Utility, 274 Conn. 119, 127-28, 874 A.2d 776 (2005).
The term "subject to" has often been found by various courts to be ambiguous. See, e.g., Stupak-Thrall v. United States, 89 F.3d 1269, 1272 (6th Cir. 1996), cert. denied, 519 U.S. 1090, 117 S.Ct. 764, 136 L.Ed.2d 711 (1997); Commonwealth v. Stallworth, 566 Pa. 349, 373, 781 A.2d 110 (2001); State v. Ramer, 298 N.J.Super. 339, 342, 689 A.2d 776 (1997), aff'd, 153 N.J. 162, 707 A.2d 999 (1998); Adams v. George, 119 Idaho 973, 978, 812 P.2d 280 (1991); People v. Postall, 153 Misc.2d 167, 580 N.Y.S.2d 975, 980 (1992).
The court has addressed, supra, the text of the statute. Moreover, the legislative history of the statute is not available. However, the court is aided by the principle that "[w]hen construing a statute, [courts] may look for guidance to other statutes relating to the same general subject matter, as the legislature is presumed to have created a consistent body of law." (Internal quotation marks omitted.) Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, 270 Conn. 778, 797, 855 A.2d 174 (2004).
The provision in General Statutes § 26-194 making an assignment of a shellfish bed lease subject to the approval of the commissioner derives from Public Acts, 1929, c. 142. The legislative histories of Connecticut statutes did not begin to be published until 1945. New Milford Savings Bank v. Jajer, 244 Conn. 251, 258-59, 708 A.2d 1378 (1998). Because the statute was enacted in 1929, its legislative history is not available. See Jupiter Realty Co. v. Board of Tax Review, 242 Conn. 363, 369, 698 A.2d 312 (1997).
The State Shellfisheries Statutes, General Statutes § 26-192 et seq., collectively protect the state's shellfisheries. Section 26-192b dictates that the "Department of Agriculture shall promulgate health standards for shellfish testing." Section 26-192c gives the department of agriculture the right to inspect and regulate shellfish beds and areas in the state where shellfish are grown. Also, the department of agriculture can classify coastal waters that can be used for the taking of shellfish, pursuant to § 26-192c. Furthermore, § 26-192j gives the commissioner the ability to "investigate any suspected or actual spill, as defined by § 22a-452c, which may threaten any shellfish grounds." All of these provisions give the department of agriculture the responsibility and authority to maintain the state's shellfisheries.
General Statutes § 26-194 provides that "all grounds leased by authority of the provisions of this section shall be leased to the highest responsible bidder, for a minimum fee of two dollars per acre." (Emphasis added.) In the context of contracts for public works, a responsible bidder has been defined as "one who is not only financially responsible, but who is possessed of the judgment, skill, ability, capacity and integrity requisite and necessary to perform the contract according to its terms." (Internal quotation marks omitted.) Okada Trucking Co. v. Board of Water Supply, 101 Haw. 68, 74, 62 P.3d 631 (2002); see Connecticut Associated Builders Contractors v. Anson, 251 Conn. 202, 205 n. 4, 740 A.2d 804 (1999) (pursuant to General Statutes §§ 46-91 and 46-92, public building contracts shall be awarded to the "lowest responsible and qualified bidder; defined as a bidder "whose bid is the lowest of those bidders possessing the skill, ability and integrity necessary to faithful performance of the work . . .") "A responsible bidder is one who possesses adequate capital resources, skill, judgment, integrity, moral worth and is accountable and reliable." CT Page 12740 Dellwood Foods, Inc. v. Board of Education, 97 Misc.2d 751, 753, 412 N.Y.S.2d 247, 250, (1978). "A bidder is responsible if he is capable of performing the contract fully, has integrity and reliability that ensures good faith performance, and is qualified . . ." Koester Contracting, Inc. v. Board of Commissioners, 619 N.E.2d 587, 588 n. 1 (Ind.Ct.App. 1993). "[A] bidder's honesty, integrity, good faith and fair dealing are valid considerations regarding whether a lowest bidder is a responsible bidder, and a criminal investigation or indictment can provide a rational basis for finding that such bidder is not responsible . . ." Matter of LaCorte Electric Construction and Maintenance, Inc. v. County of Rensselaer, 195 App.Div.2d 923, 600 N.Y.S.2d 818, 819, cert. denied, 82 N.Y.2d 660, 625 N.E.2d 591, 605 N.Y.S.2d 6 (1993).
If a lessee were permitted to assign shellfish grounds before the commissioner exercised his discretion to consent thereto, the statutory requirement of the statute that grounds be leased only to a "responsible bidder" could be circumvented, indeed nullified, by private parties. Ecologically sensitive grounds could come into the possession of a person lacking the integrity and honesty to use them in a responsible manner. An unauthorized assignee might not use the grounds as the state intended them to be used and the grounds could be wasted. Irreparable damage could be done to the grounds and to the greater environment, harm for which money damages would not be an adequate remedy. "The shellfish industry is an important one in Connecticut. The public trust in this valuable material resource must be protected." Rocque v. Nowinski, Superior Court, judicial district of Hartford, Docket No. CV 01 0807406 (August 13, 2004, Satter, JTR). For these reasons, the court holds that General Statutes § 26-194 requires the prior consent of the commissioner before a lease may be validly assigned.
II
The plaintiffs also argue, however, that even if the commissioner's approval was required for the assignment of the lease to be valid, the commissioner or department ratified Gambardella and Verderame's assignment of the lease to the plaintiffs by directly invoicing Burgos, accepting and negotiating his checks for the lease payments and by not notifying the plaintiffs that the department objected to the assignment.
As observed supra, on January 28, 2002, Gambardella, Verderame and Burgos, on behalf of Ben's Shellfish, wrote to the department of agriculture stating that Gambardella and Verderame "give full authorization to Ben's Shellfish or Benjamin Burgos on all decisions and payments that are due on L-590 and L-591 . . ." They also gave Ben's Shellfish or Benjamin Burgos "(indefinite) authorization . . . on renewal of the above-mentioned leases as well as lease payments. All bills here on forward, should be sent directly to Mr. Burgos . . ."
On April 5, 2002, John Volk, director of the bureau of aquaculture and laboratory of the department of agriculture, wrote to Burgos as follows:
This is to notify you that effective May 1, 2002, invoices for shellfish lease rentals will be mailed to the address of one leaseholder only. Payments must be made for the total amount due. Partial payments by multiple parties will no longer be accepted. Also, the letter signifying intent to renew a lease must be signed by all owners of record but will only be mailed to one leaseholder at the address on file in this office.
"As a general rule, [r]atification is defined as the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account . . . Ratification requires acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances . . . In order to ratify the unauthorized act of an agent and make it effectual and obligatory upon the principal, the general rule is that the ratification must be made by the principal with a full and complete knowledge of all the material facts connected with the transaction to which it relates; and this rule applies, of course, to ratification by a corporation whether the ratification is by the stockholders or by the directors, or by a subordinate officer having authority to ratify . . . [A]uthority in the agent of a corporation may be inferred from the conduct of its affairs, or from the knowledge of its directors and their neglect to make objection . . . Indeed, [the Supreme Court has] stated that [s]ilence, as well as affirmative acts, may imply an intent to ratify . . . The nature and extent of an agent's authority is a question of fact for the trier where the evidence is conflicting or where there are several reasonable inferences which can be drawn . . . Since ratification in a given case depends ultimately upon the intention with which the act or acts, from which ratification is claimed, were done, and since intention is a mental fact and its finding clearly one of fact, the finding in a given case of ratification is one of fact . . ." (Citations omitted; internal quotation marks omitted.) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 561-62, 698 A.2d 245 (1997).
Moreover, here, the plaintiff seeks to invoke the doctrine of ratification against the state of Connecticut. "Although the line between ratification and estoppel has been called `shadowy'; 10 E. McQuillin, Municipal Corporations (3d Ed. 1981) § 29.103, p. 475; ratification that is implied from the conduct of a municipality generally involves `the element of estoppel . . . either as a minor or major element.' Id.; cf. Turney v. Bridgeport, 55 Conn. 412, 418, 12 A. 520 (1887)." Pepe v. New Britain, 203 Conn. 281, 293 n. 7, 524 A.2d 629 (1987). If this is the rule with respect to conduct of a municipality, it certainly must be the rule with respect to actions of the state.
"Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury . . . It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge . . . In addition, estoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency . . . Finally, a claim for promissory estoppel will not lie against the state unless the party claiming estoppel would be subjected to substantial loss if the public agency were permitted to negate the acts of its agents." (Citations omitted; internal quotation marks omitted.) Chotkowski v. State, 240 Conn. 246, 268-69, 690 A.2d 368 (1997).
The court finds that a common practice has existed, acquiesced in by the commissioner, whereby parties who have leased shellfish beds from the state commissioner of agriculture effectively confer a temporary license on third persons to harvest the beds. The reality is that lessors have requested that the bureau of aquaculture of the department of agriculture bill the licensee directly, until the bureau is otherwise notified, and the bureau does so, without the commissioner having approved an assignment of lease of the bed. Without condoning or condemning this practice, the court finds that this is what occurred here. The department did not engage in misleading conduct, nor were the plaintiffs misled into believing that the commissioner had consented to an assignment of lease. Moreover, "[r]atification and estoppel are based upon knowledge and intention, and in order to constitute a ratification, it is necessary that the [governmental] officers ratifying [an action] be fully advised of all the facts connected with the act claimed to be ratified." (Internal quotation marks omitted.) Zoning Commission v. Lescynski, 188 Conn. 724, 732 n. 5, 453 A.2d 1144 (1982). The letter of January 28, 2002 from Gambardella, Verderame and Ben's Shellfish to the department of agriculture, bureau of aquaculture did not mention the plaintiffs' claim that a shellfish bed lease had been assigned to either of the plaintiffs or that they were seeking departmental approval of such an assignment.
The plaintiffs have failed to prove that the commissioner or the officers of the department ratified an assignment of lease.
III
Finally, the court considers whether the plaintiffs have standing to maintain this action without an assignment of lease approved by the commissioner or ratified by her subordinates. The court concludes that they do.
It is well settled that a person in exclusive possession of land may maintain an action for damages to his possessory rights by one having no title thereto. Merwin v. Backer, 80 Conn. 338, 348, 68 A. 373 (1907) (trespass); Eldridge v. Gorman, 77 Conn. 699, 701, 60 A. 643 (1905) (same). "Any possession constitutes a legal right of recovery against a wrong-doer." Merwin v. Camp, 3 Conn. 35, 40 (1819); see General Statutes § 47a-43. As the entire body of the law of adverse possession attests, a party is not required to have a title or a lease in order to have possession of property. Thus, for example, it has been held that a person who takes possession of premises under an invalid lease creates a tenancy at will. Weishaar v. Strimbu, 76 OhioApp.3d 276, 284, 601 N.E.2d 587 (1991), citing Restatement (Second), Property § 2.3, comment a. Possession under an invalid lease is possession nonetheless. See, e.g., id.; Verland Oil Gas Co. v. Walker, 100 Okla. 258, 259, 229 P. 235 (1924); Laughran v. Smith, 75 N.Y. 205 (1878).
Notably, the second count of the plaintiffs' complaint alleges the tort of trespass.
The issue then is whether the failure of a licensed shellfisherman, who has possession of a shellfish bed with the consent of the lessee but does not have a valid assignment of the lease pursuant to General Statutes § 26-194 because the commissioner has neither approved nor disapproved the assignment, has standing to maintain an action for damages against a third person who has damaged his possessory rights to the bed. The court concludes that he does.
The issue is, in the first instance, one of legislative intent. Sagal v. Fylar, 89 Conn. 293, 296-97, 93 A. 1027 (1915). "In order to determine the legislative intent, [courts] utilize well established rules of statutory construction." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 258 Conn. 804, 819, 786 A.2d 1091 (2002). "Consistent with . . . our well established jurisprudence on statutory construction, [courts] begin with the language of the statute." State v. Kirsch, 263 Conn. 390, 418, 820 A.2d 236 (2003); see also General Statutes § 1-2z. Significantly, General Statutes § 26-194 does not expressly invalidate shellfish bed leases nor does it provide any sanction for a sublease made without the approval of the commissioner of agriculture. It simply states: "All assignments or transfers of leases shall be subject to the approval of the commissioner and shall be recorded in his records." The provision does not contain any negative or prohibitory words.
It is true that General Statutes § 26-237 states: "Any person violating any provision of this chapter for which violation no specific penalty is imposed shall be fined not more than five hundred dollars or imprisoned not more than six months or both." However, possession of a shellfish bed by a licensed shellfisherman after a lease has been signed between the lessor and lessee shellfisherman and submitted to the commissioner for approval, but before such approval has been granted or denied, is not a violation of § 26-194. Section 26-237 is penal in nature and "[a] penal statute must be construed strictly against the state and liberally in favor of the accused . . . [A]mbiguities are ordinarily to be resolved in favor of the defendant." (Internal quotation marks omitted.) State v. Sandoval, 263 Conn. 524, 551, 821 A.2d 247 (2003). Had the legislature intended to prohibit a person from taking any shellfish, or occupying or possessing any shellfish beds, until the commissioner had approved his doing so, it could have said so. It did not.
Moreover, it is significant that General Statutes § 26-213, which is contained in the same chapter as § 26-194, contemplates that persons other than a lessor approved by the commissioner may gather shellfish from shellfish beds so long as they are licensed by the commissioner. The statute provides in part: "No person shall take or gather for commercial purposes oysters, clams, mussels or other molluscan shellfish from any natural shellfish bed in the state and no person shall be permitted upon any boat, licensed pursuant to the provisions of section 26-212, while the boat is being used for such taking or gathering until the person has been licensed in the manner provided in this section. The person shall apply in writing, to the Commissioner of Agriculture upon blanks to be furnished by the commissioner, stating his name, residence, post-office address and such other information as may be required by said commissioner . . . All licenses so issued shall be revocable at any time by the commissioner . . ." General Statutes § 26-213. Notably, Burgos is licensed by the commissioner. This fact also significantly assuages the legislative concern, discussed supra, that shellfish beds not come into the possession of irresponsible persons. Moreover, as evidenced by the findings in part II of this memorandum, the commissioner is not averse to a lessor temporarily assigning its obligation to pay rent on shellfish beds to a licensed shellfisherman while that shellfisherman harvests the beds.
General Statutes § 26-213 provides: "No person shall take or gather for commercial purposes oysters, clams, mussels or other molluscan shellfish from any natural shellfish bed in the state and no person shall be permitted upon any boat, licensed pursuant to the provisions of section 26-212, while the boat is being used for such taking or gathering until the person has been licensed in the manner provided in this section. The person shall apply in writing, to the Commissioner of Agriculture upon blanks to be furnished by the commissioner, stating his name, residence, post-office address and such other information as may be required by said commissioner, and said commissioner, upon payment of a fee of ten dollars, shall issue to the person a license for such purpose. All licenses so issued shall be revocable at any time by the commissioner and shall expire on the twentieth day of July in each year. The commissioner shall account to the Treasurer for all money received for licenses under the provisions of this section. Any person who violates any of the provisions of this section relating to licensing shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both."
It is true that "no court will lend its assistance in any way toward carrying out the terms of a contract, the inherent purpose of which is to violate the law. In case any action is brought in which it is necessary to prove the illegal contract in order to maintain the action, courts will not enforce it, nor will they enforce any alleged right directly springing from such contract, but if both parties are in pari delicto, the law will leave them where it finds them . . . [The Supreme Court] has further said that every contract made for or about any matter or thing which is prohibited and made unlawful by statute is a void contract, though the statute does not mention that it shall be so, but only inflicts a penalty on the offender; because a penalty implies a prohibition, though there are no prohibitory words in the statute." (Citations omitted; internal quotation marks omitted.) Solomon v. Gilmore, 248 Conn. 769, 785, 731 A.2d 280 (1999).
In this context, the court has also stated, however, that "[t]he principle that agreements contrary to public policy are [unenforceable] should be applied with caution and only in cases plainly within the reasons on which that doctrine rests." (Internal quotation marks omitted.) Id., 790. "Claims that contracts are void because of a violation of public policy as embodied in a statute are considered against the backdrop of the particular statute . . . The particular facts involved in the claim that a contract is against public policy also temper the conclusion as to whether illegality exists." (Citation omitted.) 12 Havemayer Place Co., LLC v. Gordon, 76 Conn.App. 377, 389, 820 A.2d 299, cert. denied, 264 Conn. 919, 828 A.2d 618 (2003). Moreover, "[t]here are gradations of violations of statutes ranging from per se violations, that is, those manifestly in total derogation of a particular statute, to those that affect fewer persons in limited circumstances . . . or which are minor in nature. Minor violations of zoning [statutes] do not lead to a conclusion that the violation causes a lease to be invalid." (Citation omitted.) Id., 389.
In Solomon v. Gilmore, supra, 248 Conn. 786-89, the court drew the following distinctions between invalid, unenforceable agreements and those that are invalid but not unenforceable. Contracts that are expressly prohibited by statute, whose enforcement would defeat the purpose of a statute or whose purpose is unlawful are invalid and unenforceable. Id., 786-88. On the other hand, contracts that are otherwise invalid, but are not prohibited by statute, and whose enforcement would not defeat the purpose of a statute, and were not entered into for an unlawful purpose are not unenforceable. Id., 788-89. Here, the assignment of shellfish bed leases is not prohibited by statute nor does an "invalid" assignment to a licensed shellfisherman defeat the purpose of the relevant statutes. Furthermore, there is no evidence that the inherent purpose of the assignment was to violate the law.
Finally, in 12 Havemayer Place Co., LLC v. Gordon, supra, 76 Conn.App. 390, the court again recognized that an invalid agreement is not necessarily unenforceable if its invalidity is curable. The court explained, in the context of zoning law, that "[t]he preponderance of the cases make it clear that if a variance is possible, a lease is not necessarily void and unenforceable. See annot., Rights Between Landlord and Tenant as Affected By Zoning Regulations Restricting Contemplated Use of Premises, 37 A.L.R.3d 10118 (1971). A lease is not necessarily void if, reasonably, the prohibition can be made legal through administrative or judicial action. Id., 1044." Here, the commissioner has the authority to validate the lessors' assignment of the shellfish beds to the plaintiffs.
For these reasons, the court holds that nothing in the General Statutes prohibits a licensed shellfisherman in possession of a shellfish bed pursuant to an assignment of a lease which has been submitted to, but neither approved nor disapproved, by the commissioner of agriculture, from maintaining an action against a third person for damage to his possessory rights to the bed. Such possession affords the plaintiff a specific, personal and legal interest in the shellfish bed. The defendant does not deny, for purposes of this motion, that if the plaintiff has such a legally protected interest that interest was adversely affected. As stated supra, "a [patty] ordinarily establishes . . . standing by allegations of injury." (Internal quotation marks omitted.) Smith v. Snyder, supra, 267 Conn. 460. For these reasons, the plaintiff has standing, and the motion to dismiss is denied.
BY THE COURT
Bruce L. Levin
Judge of the Superior Court