Opinion
No. CV02-0172453S
July 22, 2004
MEMORANDUM OF DECISION RE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
On July 8, 2002, the plaintiffs, Commission on Human Rights and Opportunities (CHRO) and Catherine Weller, filed an enforcement action pursuant to General Statutes § 46a-95. The plaintiffs request that the court enforce the August 28, 2001 order of Leonard Trojanowski, a human rights referee of the CHRO (referee), against the defendants, Lawrence Crest Cooperative, Inc., Robert Dorr and Mary Spears. The plaintiffs allege that the defendants have not complied with the referee's order.
Catherine Weller is also known as Catherine Bajrami, Catherine Weller-Bajrami and Catherine Otero.
The defendants filed an answer and three special defenses on February 18, 2003. The defendants' first special defense alleges that "[t]he [referee's] findings as to the facts are not supported by competent and substantial evidence and the claims for damages are excessive and unreasonable." The second and third special defenses assert, respectively, that the "[d]efendants do not engage in any discriminatory practices" and the "[d]efendants did not harass or intimidate the [p]laintiff."
The plaintiffs moved for summary judgment on the grounds that the issues of fact ware decided by the hearing officer when he entered an order of default against the defendants for failing to appear at the Settlement Conference, and there is no genuine issue of material fact. The plaintiffs submitted the administrative record upon which the CHRO decision was based. On March 10, 2004, the defendants filed a memorandum of law in opposition to the motion, an affidavit of Robert Dorr and a copy of their answer and special defenses.
FACTS
In compliance with General Statutes § 46a-95(b), the plaintiffs certified and filed with the court the complete transcript of the CHRO proceeding sought to be enforced. This transcript reveals the following: Robert Dorr is a former member and Mary Spears is the former president of the board of directors of Lawrence Crest Cooperative, Inc. On May 14, 1999, Catherine Weller filed a complaint with the CHRO alleging, as subsequently amended, that the defendants discriminated against her in violation of General Statutes § 46a-64c(a) et seq. and Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601, et. seq. Specifically, Catherine Weller claimed that she was refused a handicap parking space while she resided in a unit at Lawrence Crest Cooperative, Inc., because of her color (white); sex (female); marital status (going through a divorce); and physical disability (ileostomy). In addition, Catherine Weller claimed that she was harassed and intimidated by the defendants for requesting handicapped parking and for filing a complaint with the CHRO.
On November 15, 2000, the referee issued an order of default for failure to appear against the defendants pursuant to General Statutes § 46a-84(f). On April 30, 2001, the referee conducted a hearing in damages and made a number of findings of fact, one of which was that all procedural, notice and jurisdictional prerequisites had been satisfied. The referee concluded, inter alia, that the defendants denied Catherine Weller a reasonable accommodation, an existing handicapped parking space near her unit, and harassed and intimidated her, due in part to illegal discrimination based on her disability, color, sex, and marital status.
Section 46a-84(f) states, in part: "The respondent may file a written answer to the complaint under oath and appear at the hearing . . . If the respondent fails to file a written answer prior to the hearing within the time limits established by regulation adopted by the commission in accordance with chapter 54 or fails to appear at the hearing after notice in accordance with section 4-177, the presiding officer . . . may enter an order of default and order such relief as is necessary to eliminate the discriminatory practice and make the complainant whole."
Based on his conclusions, the referee ordered the defendants to: (1) cease and desist from any discriminatory acts in violation of 42 U.S.C. § 3601 et. seq. and General Statutes §§ 46a-64c(a) and 46a-60(a)(4); (2) place posters, supplied by the CHRO, in conspicuous places on the premises of Lawrence Crest Cooperative, Inc.; (3) pay $20,000 to Catherine Bajrami for emotional stress damages; (4) pay $6049.49 to Catherine Weller for compensatory damages; (5) pay $6562.50 in attorneys fees to Michelle Dumas, attorney for Catherine Weller; (6) pay Catherine Weller's medical expert, Kenneth Selig, $3500; (7) pay Catherine Weller interest pursuant to General Statutes § 8-214f(d)(1) on the $350 security deposit; and (8) pay post-judgment interest, pursuant to General Statutes § 37-3a, at the rate of ten percent per annum from the date of the judgment until full payment is made by the defendants. Pursuant to General Statutes § 4-180(c), the referee's final decision was mailed, certified, return receipt requested, to all of the defendants on August 28, 2001.
Section 4-180(c) states, in part: "The final decision shall be delivered promptly to each party or his authorized representative, personally or by United States mail, certified or registered, postage prepaid, return receipt requested. The final decision shall be effective when personally delivered or mailed . . ."
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003), cert. denied, 124 S.Ct. 1603, 158 L.Ed.2d 244 (2004). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing . . . a motion [for summary judgment] must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004). "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment)." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), citing Practice Book § 17-46.
The plaintiffs seek "summary judgment, as a matter of law, in the amount of $26,049,49, plus statutory interest, attorneys fees of $10,200.00 (which include post hearing fees accumulated during the appeal and enforcement of this case along with fees awarded from the [referee's] decision), court costs and expenses incurred . . . in connection with this enforcement action." The plaintiffs state in their amended memorandum of law in support of the motion that they have complied with the requirements of § 46a-95(a), (b) and (c) and, accordingly, the court has the power to enter a decree enforcing the referee's order pursuant to § 46a-95(d). The plaintiffs argue that there are no genuine issues of material fact because no defense was raised on appeal; thus no objection or defense can be raised now, absent an extraordinary circumstance, of which there are none. Furthermore, the plaintiffs assert that the referee's findings of fact are conclusive under § 46a-95(h) because they are supported by substantial and competent evidence. The plaintiffs also contend that the CHRO adhered to all procedural requirements leading up to and including the final decision.
The amended memorandum of law is substantially similar to the original memorandum of law and is dated prior to oral argument. Furthermore, a party can "offer an alternative basis on which a court may base its decision, even if it is contrary to what was asserted initially." Demchak v. State, 83 Conn.App. 86, 88 n. 3, 847 A.2d 1095 (2004).
Section 46a-95 rates, in part:
(a) The commission through the Attorney General, the commission counsel, or the complainant may petition the court within the judicial district wherein any discriminatory practice occurred . . . for the enforcement of any order issued by a presiding officer under the provisions of this chapter . . .
(b) The commission shall certify and file in the court a transcript of the entire record of the proceedings sought to be enforced . . .
(c) Within five days after filing such petition in court, the commission shall cause a notice of the petition to be sent by registered or certified mail to all parties or their representatives . . .
Section 46a-95(d) provides: "The court shall: (1) Have jurisdiction of the proceedings and of the questions determined thereon, (2) have the power to grant such relief by injunction or otherwise, including temporary relief, as it deems just and suitable, and (3) enter, based on the pleadings, testimony and proceedings set forth in the transcript, a decree enforcing, modifying and enforcing as so modified, or remanding to the commission or presiding officer, in whole or in part, any order of the commission or presiding officer."
In opposition, the defendants argue that Practice Book § 17-44 precludes the plaintiffs from seeking summary judgment because "this specific appeal is not enumerated in" Practice Book § 14-7. The defendants further argue that the plaintiffs' motion fails to address any of the issues raised by the defendants' answer and special defenses and that the plaintiffs failed to submit any affidavits in support of their motion. In the defendants' supplemental brief in opposition, they contend that there are genuine issues of fact in dispute, that they intend to raise defenses that were presented before the referee and that the referee's findings of fact are not supported by substantial and complete evidence.
Practice Book § 17-44, provides in relevant part that "[i]n any action, except administrative appeals which are not enumerated in Section 14-7, any party may move for summary judgment, . . ." This rule of practice does not prevent the plaintiff from filing a motion for summary judgment in the present action, for this action is not an administrative appeal brought pursuant to General Statutes §§ 46a-94a and 4-183, but an enforcement action pursuant to § 46a-95. Section 46a-94a(a) states, in part, that a "respondent . . . aggrieved by a final order of a presiding officer . . . may appeal therefrom in accordance with section 4-183." General Statutes § 4-183(c), however, mandates that a party must commence an appeal "[w]ithin forty-five days after mailing of the final decision under section 4-180 . . ." In the present action, the transcript shows that the final decision was mailed in accordance with § 4-180(c) on August 28, 2001, and the present action was commenced under § 46a-95 more than ten months after that date. Consequently, the time for the defendants to appeal has passed.
Although Practice Book § 17-44 does not preclude the plaintiffs' motion for summary judgment, one trial court decision notes that "it seems . . . that the appropriate procedure upon the filing of a petition [pursuant to § 46a-95] would be to schedule a hearing, at which any requests for additional evidence pursuant to § 46a-95(f) could be made, as could any claims that unraised or previously decided issues should be decided because of extraordinary circumstances." Commission on Human Rights and Opportunities v. Muhammad, Superior Court, judicial district of Hartford, Docket No. CV 00 0800079 (July 2, 2001, Beach, J.). Nevertheless, the court addresses the motion as presented because "[n]ot only does [General Statutes § 46a-95(j)] demand that petitions filed under it be heard expeditiously but [General Statutes § 46a-96] requires that all hearings under the entire chapter shall take precedent over all other matters." (Internal quotation marks omitted.) Commission on Human Rights and Opportunities v. State, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 92 0703593 (January 12, 1993, O'Neill, J.) ( 8 C.S.C.R. 1147, 1149). "It thus appears that the legislature wanted some speed in the processing of these petitions." Id.
Section 46a-95, which governs enforcement by the Superior Court of orders issued by a referee of the commission, provides in subsection (d) that this court shall have jurisdiction over the commission proceedings and the questions determined thereon and the power to enter, based on the pleadings, testimony and proceedings set forth in the transcript of the proceedings, a decree enforcing or modifying and enforcing as so modified any order of the commission or a referee. Section 46a-95(a), states, "[n]o objection or defense that has not been urged before the presiding officer or that was raised or could have been raised on appeal under section 46a-94a, may be considered by the court, unless the failure to urge such objection is excused because of extraordinary circumstances." Either party can apply "to the court for leave to adduce additional evidence . . . to be taken before the presiding officer and to be made part of the transcript." General Statutes § 46a-95(f). "The findings of the presiding officer as to the facts, if supported by substantial and competent evidence, shall be conclusive." General Statutes § 46a-95(h). "Petitions filed under this section shall be heard expeditiously and determined upon the transcript filed . . ." General Statutes § 46a-95(j).
See footnote 6.
The defendants contend in their supplemental brief in opposition that they intend to raise defenses in the present action that they raised before the referee. Similarly, the defendants assert three special defenses: (1) the referee's findings of fact "are not supported by competent and substantial evidence and the claims for damages are excessive and unreasonable"; (2) the defendants did "not engage in any discriminatory practices"; and (3) the defendants "did not harass or intimidate" the plaintiff. As has already been noted, however, § 46a-95(e) provides that "[n]o objection or defense that has not been urged before the presiding officer or that was raised or could have been raised on appeal under section 46a-94a, may be considered by the court, unless the failure to urge such objection is excused because of extraordinary circumstances . . ." This section "indicates, essentially, that no new material or issues [are] to be considered by the court in the consideration of an enforcement order, nor is the court to consider any objection or defense which was or could have been raised on appeal under § 46a-94a . . ." Commission on Human Rights and Opportunities v. Muhammad, supra, Superior Court, Docket No. CV 00 0800079. "The court, then, is not to consider any new objection or defense, or any objection or defense that could have been raised on appeal, absent extraordinary circumstances, but is to examine the record in its consideration of the petition for the enforcement order." Id.
In the present action, the defendants, on April 15, 2003, withdrew their motion for leave of the court to adduce additional evidence pursuant to § 46a-95(f), to which the plaintiffs' objection had been overruled (Dubay, J.). Further, the court notes that the defendants, on February 20, 2002, withdrew their appeal (Docket No. CV 02 0512873) of the final decision rendered by the CHRO.
"[T]he trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties." Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995).
The defendants have failed to allege any extraordinary circumstances that would permit this court to excuse the defendants' failure to raise these defenses before either the referee or before the court on appeal. As a result, § 46a-95(e) prevents the court from considering these defenses. The pleadings are closed and the court has the power to enter, based on the transcript of the commission proceeding, a decree enforcing the referee's order. General Statutes § 46a-95(d). Accordingly, the only question remaining is whether the findings of the referee as to the facts are supported by substantial and competent evidence so as to be conclusive.
The defendants also rely on Robert Dorr's affidavit, in which he makes statements that contradict the referee's findings and concern issues that could have been raised on appeal. Consequently, the court is unable to consider the affidavit. General Statutes § 46a-95(e).
After a careful review of the transcript as a whole, the court finds that the referee's findings of fact are supported by substantial and competent evidence. The referee had a better vantage point to assess the credibility and truthfulness of the testimony of Catherine Weller and her expert medical witness, Kenneth Selig, a forensic psychiatrist, as well as the submitted exhibits. The referee's findings are, thus, conclusive pursuant to § 46a-95(h) and there are no genuine issues of material fact. Based on the transcript of the CHRO proceeding, including the pleadings and testimony, and as a matter of law, the plaintiffs are entitled to have the referee's order of August 28, 2001, enforced.
The plaintiffs' motion for summary judgment is granted, and a decree enters enforcing the referee's award to Catherine Weller of $20,000 in emotional distress damages and $6049.49 in compensatory damages, $6562.50 in attorneys fees and $3500 in expert medical witness fees with interest thereon at the rate of ten percent per annum from the date of the order, August 28, 2001, pursuant to § 37-3a, to be paid by the defendants to Catherine Weller, Michelle Dumas and Kenneth Selig, respectively. In addition, the defendants shall pay Catherine Weller nominal interest on her $350 security deposit in accordance with § 8-214f(d)(1).
The defendants shall cease and desist from any discriminatory acts in violation of 42 U.S.C. § 3601 et seq. and General Statutes §§ 46a-64c(a) and 46a-60(a)(4). The defendants shall place posters on the premises of Lawrence Crest Cooperative, Inc., in conspicuous places visible to all members, which specify tenant and complainant rights. These posters shall be supplied by the CHRO and installed not more than thirty days after the posters are received.
The plaintiffs request an additional $3637.50 for attorneys fees associated with the continuation of this action. The affidavit of Michelle Dumas Keuler, dated April 2, 2004, claims $4987.50 in additional attorneys fees. Attached to the affidavit are attorney Keuler's time records. The court has the power under § 46a-95(d) to modify and enforce as so modified the order. The court finds that the additional attorneys fees of $4987.50 are reasonable in view of the time required to obtain the defendants' compliance with the order. As a result, the referee's order is modified to the extent that the defendants shall pay Michelle Dumas Keuler an additional $4987.50 in attorneys fees.
Section 46a-86(c) states, in part, "upon a finding of a discriminatory practice prohibited by section . . . 46a-64c . . . the presiding officer shall determine the damage suffered by the complainant, which damage shall include, but not be limited to, the expense incurred by the complainant for obtaining alternate housing or space, storage of goods and effects, moving costs and other costs actually incurred by him as a result of such discriminatory practice and shall allow reasonable attorneys fees and costs."
Gallagher, J.