Single Source, Inc. v. Central Regional Tourism District, Inc. ( 2014 )

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SINGLE SOURCE, INC. v. CENTRAL REGIONAL
TOURISM DISTRICT, INC.
(SC 18819)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.
Argued September 19, 2013—officially released July 8, 2014
Andrew D. Epstein, pro hac vice, with whom were
Proloy K. Das and, on the brief, Bernard F. Gaffney,
for the appellant (plaintiff).
Lawrence G. Rosenthal, with whom, on the brief, was
Fletcher C. Thomson, for the appellee (defendant).
Opinion
McDONALD, J. In 2003, our legislature repealed statu-
tory provisions that had established eleven districts
statewide for the promotion of tourism (local districts)
and enacted legislation establishing five larger districts
(regional districts) serving that same purpose. This
case, which comes to us by way of certification from
the United States District Court for the District of Mas-
sachusetts, raises questions regarding the satisfaction
of contingent liabilities of the legislatively dissolved
local districts.
The plaintiff, Single Source, Inc., a Massachusetts
corporation, commenced an action in the District Court
against one of the regional districts, the defendant, Cen-
tral Regional Tourism District, Inc., seeking to hold the
defendant liable for damages under a contract that the
plaintiff had executed with one of the local districts,
the Greater Hartford Tourism District, Inc. (Greater
Hartford). The defendant thereafter moved for sum-
mary judgment on the grounds that: (1) it is not the legal
successor to Greater Hartford, and, therefore, cannot be
held liable for the contractual obligations assumed by
that entity; and (2) even if it is Greater Hartford’s suc-
cessor in interest, General Statutes § 10-397a provides
it with an absolute defense because the acts necessary
under § 10-397a (d) to assume such an obligation were
not undertaken.1
The District Court, in its memorandum of decision
on the motion for summary judgment, concluded that,
because it could find no statute extending the life of
the local districts after they were legislatively dissolved
for purposes of litigating or settling claims against them,
the plaintiff could not have brought a breach of contract
action against Greater Hartford. Therefore, the court
concluded that the question was whether the defendant
had succeeded to Greater Hartford’s liabilities.2 Ulti-
mately, the court concluded that the absence of state
court authority and the possibility that § 10-397a could
provide a defense to liability that could result in an
unconstitutional impairment of contractual obligations
counseled in favor of certifying questions of state law
to this court.3 The District Court thereafter certified
three questions to this court pursuant to General Stat-
utes § 51-199b. This court accepted, after making cer-
tain modifications, the following questions: ‘‘1. Is the
[defendant] the legal successor to [Greater Hartford]?’’;
‘‘2. If the answer to the first question is yes, does . . .
§ 10-397a afford the [defendant] a total or partial
defense to the contractual obligations of [Greater Hart-
ford]?’’ and ‘‘3. If the answer to the first question is no,
what entity, if any, is responsible for those obligations?’’
We answer the first certified question in the negative.
Therefore, we need not answer the second question,
although we note that § 10-397a bears significantly on
our resolution of the first question. We answer the third
question as follows: If Greater Hartford has transferred
any of its assets to another entity and the plaintiff can
establish that the assets were fraudulently conveyed,
that entity may be responsible for Greater Harford’s
obligations to the extent of the value of the assets
received.
Although not directly relevant to our resolution of
the legal questions presented here, the following facts,
as found by the District Court, and the procedural his-
tory of this case provide useful context for the legal
landscape in which these questions arise. From 1996
to 2001, the plaintiff, a supplier of professional photog-
raphy and related services, and Greater Hartford exe-
cuted a series of contracts that, in essence, granted
Greater Hartford a license to use certain photographic
images owned by the plaintiff. The contractual relation-
ship between the parties ended on August 15, 2003.
In September, 2008, the plaintiff commenced a breach
of contract action against the defendant, identifying it
in the complaint as a corporation ‘‘formerly known as
Greater Hartford . . . .’’ Accordingly, in its complaint,
the plaintiff referred to both entities as the defendant.
In its complaint, the plaintiff asserted three claims,
seeking $237,000 for 159 allegedly unreturned photo-
graphs, $443,975 in late fees for 1505 photographs alleg-
edly untimely returned by the defendant in October,
2004, and unspecified user fees for the defendant’s
alleged unauthorized use of nine photographic images
in or around 2005. In its answer, the defendant denied
most of the plaintiff’s allegations and asserted as affir-
mative defenses that: (1) the plaintiff had brought the
action against the wrong party; and (2) pursuant to § 10-
397a, the defendant did not assume the liabilities of
Greater Hartford. Thereafter, the defendant moved for
summary judgment on the basis of its affirmative
defenses.
In connection with that motion, the parties disputed
when Greater Hartford ceased to exist and when the
defendant became operational. The defendant submit-
ted evidence indicating that it had commenced opera-
tion on August 20, 2003, the effective date of the Public
Act in which the legislature had dissolved the local
districts and established the regional districts. See Pub-
lic Acts, Spec. Sess., June, 2003, No. 03-6, §§ 210 through
217, 248 (Spec. Sess. P.A. 03-6). In its memorandum
of law, however, the defendant contended that it had
commenced operation on June 3, 2004, the effective
date of the 2004 Public Act in which the legislature
enacted the provision on which the defendant relied in
its affirmative defense. See Public Acts 2004, No. 04-
205, § 3 (P.A. 04-205). The plaintiff proffered the only
evidence independent of the effective dates of these
two Public Acts: a payment from Greater Hartford to
the plaintiff dated November 17, 2003, and a filing with
the Secretary of the State on December 15, 2003, in
which Greater Hartford’s name had been changed to
the defendant’s name in the commercial recording divi-
sion.4 There was no dispute, however, that, by the time
of the hearing on the motion for summary judgment,
Greater Hartford was ‘‘ ‘in dissolution and out of
business.’ ’’5
The District Court noted the following facts that,
in its view, weighed in favor of a conclusion that the
defendant is the successor in interest to Greater Hart-
ford. The defendant serves substantially the same geo-
graphic area and population that Greater Hartford
formerly served. By statute, Greater Hartford could
transfer most of its cash assets and any of its noncash
assets to the defendant. The court also noted that, in
addition to the name change filed with the Secretary
of the State, the plaintiff proffered ‘‘functional evidence
supporting the inference that [the defendant] is [Greater
Hartford’s] legal successor’’: (1) the defendant is
located in the same office in which Greater Hartford
previously was located; (2) the defendant uses the same
telephone and fax numbers that Greater Hartford had
used; and (3) the defendant derived a benefit from
Greater Hartford’s contract by using the plaintiff’s pho-
tographs in its promotional materials. The District
Court also found, however, that the defendant had not
taken the statutorily mandated steps necessary to
assume a former district’s liabilities under § 10-397a.
With this factual background as context, we turn
to the question of whether the defendant is Greater
Hartford’s legal successor. The threshold determination
that must be made is what law governs the resolution of
this question. Because the tourism districts are strictly
creatures of statute, undoubtedly the statutory scheme
must be the source of first resort. As such, we are
guided by our well established rules of statutory con-
struction to ascertain the intent of our legislature. See
Hartford/Windsor Healthcare Properties, LLC v. Hart-
ford, 298 Conn. 191, 197–98, 3 A.3d 56 (2010) (explaining
plain meaning rule under General Statutes § 1-2z and
setting forth process for ascertaining legislative intent).
Accordingly, although the certified questions are
framed solely with reference to the particular entities
implicated in the present case, the issue of legislative
intent requires us to construe the scheme in a manner
applicable to all of the districts.
We begin with a brief historical overview of the statu-
tory scheme before turning to our analysis of the spe-
cific provisions that, in our view, yield a conclusive
answer to the question of a successor relationship
between the local and regional districts. Since the mid-
1970s, the state has provided funding at the municipal
or regional level for the purpose of promoting tourism,
a goal that also was supported through funding from
the private sector. See Public Acts 1974, No. 74-337;
Conn. Joint Standing Committee Hearings, Commerce
and Exportation, Pt. 1, 1992 Sess., p. 34, remarks of
Representative Robert A. Maddox, Jr. Initially, the legis-
lature made state funds available to municipalities on
an elective basis and subject to certain conditions. See
General Statutes (Rev. to 1975) §§ 7-136a, 7-136b and
7-136c. In 1981, the legislature expanded the scheme
to allow municipalities to obtain such funds collectively
as districts if they previously had formed districts to
perform other municipal functions. See Public Acts
1981, No. 81-417.
In 1992, the legislature abolished that elective scheme
in favor of one that would provide more equitable fund-
ing to all municipalities, shift some funding to promote
Connecticut as a state tourism destination, and provide
greater accountability for the use of state funds. See
Public Acts 1992, No. 92-184; see also Conn. Joint Stand-
ing Committee Hearings, supra, pp. 4–5, 7–10, remarks
of Joseph J. McGee, Commissioner of Economic Devel-
opment. To accomplish these goals, the legislature cre-
ated a two tier scheme: eleven local tourism districts
comprised of every municipality in the state, and an
Office of Tourism and a Connecticut Tourism Council
reporting to the Department of Economic Development
to oversee the local districts and address statewide
issues. See General Statutes (Rev. to 1993) §§ 32-300
through 32-305. Greater Hartford was one of these local
districts. General Statutes (Rev. to 1993) § 32-302 (a)
(8).
In 2003, the legislature repealed the provisions estab-
lishing the eleven local districts and enacted provisions
establishing five larger regional districts, effective
August 20, 2003. See Spec. Sess. P.A. 03-6. The 2003
Public Act reassigned every municipality to a regional
district. See Spec. Sess. P.A. 03-6, § 215; see also General
Statutes (Rev. to 2005) § 10-397 (a). In some cases, all
of the municipalities formerly assigned to one local
district were assigned to the same regional district. In
others, the municipalities were disbursed among two
or three regional districts. In the case of Greater Hart-
ford, all but one town that previously had been assigned
to it was assigned to the central regional district, later
incorporated as the defendant.6 Municipalities from
three other local districts also were assigned in whole
or in part to the central regional district.
In addition to the 2003 Public Act, which legislatively
dissolved the local districts and created the regional
districts, two subsequent public acts have particular
significance in the present case. In 2004, the legislature
enacted a provision, codified as § 10-397a, that
addressed the transfer of assets and liabilities from
local districts to regional districts. See P.A. 04-205, § 3.
In 2009, the legislature consolidated the five regional
districts into three regions (consolidated districts), one
of which remained the central regional district.7 See
Public Acts, Spec. Sess., September, 2009, No. 09-7, § 12
(Spec. Sess. P.A. 09-7).
In considering the question of succession, the enact-
ment of § 10-397a8 in 2004, and subsequent amendments
to this provision in 2009, are key. See P.A. 04-205; Spec.
Sess. P.A. 09-7, § 14. The provision as originally enacted
addressed the assets and liabilities of a ‘‘[f]ormer tour-
ism district,’’ defined in subsection (a) (3) to indicate
the eleven local districts dissolved under Spec. Sess.
P.A. 03-6. See General Statutes (Rev. to 2005) § 10-397a
(a) (3). Subsection (b) set forth conditions under which
a former tourism district could distribute its cash assets
to one or more of the five regional districts. Subsection
(c) set forth conditions for a former tourism district’s
transfer of its noncash assets to one or more of the
regional districts. Subsection (d) addressed the condi-
tions under which a regional district could assume the
liabilities of a former tourism district.
Specifically, P.A. 04-205, §3, which originally enacted
§ 10-397a, provided in relevant part: ‘‘(b) Any former
tourism district having a cash surplus, after accounting
for all liabilities, may distribute such surplus to the
regional tourism district or districts serving the towns
formerly served by such district. Any distribution shall
be divided among the new district or districts in accor-
dance with the following schedule . . . .
‘‘(c) Any former tourism district may, with the
approval of the executive director, transfer noncash
assets, including fixed assets and leases, to a regional
tourism district or districts serving the towns formerly
served by such district.
‘‘(d) Any regional tourism district may, by vote of
its board of directors and with the approval of the
commission, assume the liabilities of a former tourism
district that served all or part of the area served by the
new district. No such assumption shall be approved
unless (1) the regional district’s approved budget makes
provision for the costs arising from the assumption of
liability; and (2) the commission finds that the proposed
assumption of liability is fair and equitable.’’ See also
General Statutes (Rev. to 2005) § 10-397a.
Several inferences arise from the text of this provi-
sion that indicate that the legislature did not intend to
create a legal successor relationship between the local
and regional districts. First, if the regional districts had
become the successors to the local districts by opera-
tion of law when the local districts were legislatively
dissolved effective August 20, 2003, it would have
served no purpose for the legislature to enact § 10-397a
in 2004. Second, the legislature made the transfer of
assets and assumption of liabilities discretionary, but
mandated the satisfaction of certain conditions if a
regional district elected to assume such liabilities.
Third, the transfer of assets is at the election of the
former local district, whereas the assumption of liabili-
ties is at the election of the regional district. Fourth,
the legislature did not require regional districts, should
they chose to assume liabilities, to do so in proportion
to the common geographic coverage or population of
the local district subject to the liabilities. Finally, by
imposing a requirement that local districts account for
liabilities before distributing cash assets, more than
nine months after the legislature dissolved the local
districts, the legislature indicated that local districts
still could be in existence, even if not in operation, for
winding down purposes after the establishment of the
regional districts.9 Indeed, the payment from Greater
Hartford to the plaintiff dated November 17, 2003, is
consistent with winding up that local district’s business.
We do not ascribe significant weight to the fact that,
in § 10-397a, the legislature limited the transfer of assets
and liabilities between districts serving all or part of
the same geographic area. Nor do we ascribe significant
weight to the fact that it prescribed a schedule for any
transfer of surplus cash assets that roughly corres-
ponded with the percentage of towns in the local district
that were assigned to the regional district. See footnote
8 of this opinion. Although these provisions could be
construed to suggest some relationship between the
districts serving the same areas, there also is evidence
that the legislature intended to maintain general parity
in funding for the districts. See Conn. Joint Standing
Committee Hearings, supra, p. 12, remarks of Commis-
sioner McGee; id., p. 18, remarks of Representative Alex
A. Knopp; Spec. Sess. P.A. 03-6, § 215; Public Acts 2011,
No. 11-48, § 102 (P.A. 11-48). The aforementioned con-
straints are fully consistent with achieving that goal.
Indeed, the legislature’s intention not to make the
regional districts the legal successors to the local dis-
tricts is bolstered by the 2009 amendments to § 10-397a.
As we previously have indicated, it is at this time that
the legislature consolidated the five regional districts
into three districts. Spec. Sess. P.A. 09-7, § 12. At that
same time, the legislature changed the references to
the five regional districts in § 10-397a to the three con-
solidated districts, but maintained all of the references
to the ‘‘former’’ local districts. See Spec. Sess. P.A. 09-
7, § 14. In other words, subject to the same conditions
as previously existed, the local districts were authorized
to distribute cash surplus and transfer noncash assets
to the consolidated districts, while the consolidated
districts were authorized to assume the liabilities of the
local districts. The 2009 Public Act also modified the
schedule for distribution of the local districts’ transfer
of cash surplus remaining ‘‘after accounting for all liabil-
ities’’ to roughly correspond with the percentage of
towns in the local district that were assigned to the
consolidated districts.10 Spec. Sess. P.A. 09-7, § 14.
These changes indicate that the local districts, although
dissolved since 2003, still could be in possession of
assets and subject to liabilities as of 2009. By main-
taining the requirement that an accounting of liabilities
must take place before cash assets could be distributed,
the legislature implicitly extended the winding up
period. In so doing, it does not seem to be a mere
coincidence that the legislature would have accounted
for the local districts’ potential exposure to liability for
claims advanced within the six year statute of limita-
tions for contract actions.11 See General Statutes § 52-
576; see also Campisano v. Nardi, 212 Conn. 282, 290,
562 A.2d 1 (1989) (‘‘this court has previously refrained
from imposing a strict time limit on the completion of
winding up activities’’).
We also note that the legislature’s provision in 2009
for the transfer of assets and liabilities from the local
districts to the consolidated districts; Spec. Sess. P.A.
09-7; stands in stark contrast to the omission of a similar
provision for such transfers from the five regional dis-
tricts to the three consolidated districts. That the legis-
lature did not so provide suggests that the three
consolidated districts became the legal successors to
the five regional districts by operation of law. Con-
versely, the transfer scheme provided for the local dis-
tricts indicates that they had no successors by operation
of law.
There also are indications in the public acts that
predate the adoption of § 10-397a that lend support to
our conclusion. At the same time that the legislature
dissolved the local districts and created the regional
districts, it expressly designated one entity in the tour-
ism scheme as a ‘‘successor’’ to other entities and
authorized the transfer of the predecessor’s functions
and appropriations to that successor. See Spec. Sess.
P.A. 03-6, § 210 (d) (enacting provision, later codified
at General Statutes [Rev. to 2005] § 10-392 [d], which
provided: ‘‘[t]he Connecticut Commission on Arts, Tour-
ism, Culture, History and Film shall be a successor
department to [inter alia] the Office of Tourism [and]
the Connecticut Tourism Council . . . in accordance
with the provisions of sections 4-38d and 4-39 of the
general statutes’’); see also P.A. 11-48, § 98 (d) (amend-
ing General Statutes [Rev. to 2011] § 10-392 [d] to desig-
nate Department of Economic and Community
Development as ‘‘a successor agency to [inter alia] the
Connecticut Commission on Culture and Tourism12
. . . in accordance with the provisions of sections 4-
38d and 4-39’’).13 In addition to the fact that the legisla-
ture made no such designation with respect to the
regional districts, the legislature did not simply transfer
the existing rights and duties of the local districts to the
regional districts. Rather, it made several substantive
changes to the scheme governing the regional districts,
some of which shifted greater power to state controlled
oversight entities. In particular, whereas the local dis-
tricts were required to submit their budgets to the Con-
necticut Tourism Council for review only, the regional
districts were required to obtain approval of their bud-
gets from the Connecticut Commission on Culture and
Tourism. Compare General Statutes (Rev. to 2003)
§§ 32-301 (b) (9) and 32-302 (e), with General Statutes
(Rev. to 2005) § 10-394 (a). If the commission disap-
proved a regional district’s budget, the commission
would adopt an interim budget that would serve as the
regional district’s budget until the district had submitted
a budget that met with the commission’s approval. Gen-
eral Statutes (Rev. to 2005) § 10-394 (a). Finally, when
the legislature dissolved the local districts, it did not
simply consolidate or merge the local districts to create
the regional districts, as it did with the consolidated
districts in 2009. Rather, as we previously indicated,
municipalities comprising local districts were, in some
cases, broadly disbursed into two or three regional dis-
tricts. Compare Office of Legislative Research, Bill Anal-
ysis, House Bill No. 6806, ‘‘An Act concerning General
Budget and Revenue Implementation Provisions,’’
(2003), §§ 210 through 239, 241-Tourism, available at
http://www.cga.ct.gov/2003/ba/2003HB-06806-R00SS2-
BA.htm (last visited June 23, 2014), with Office of Legis-
lative Research, Bill Analysis, House Bill No. 7007, ‘‘An
Act Implementing the Provisions of the Budget concern-
ing General Government and Making Changes to Vari-
ous Programs,’’ (2009), §§ 12 through 14, available at
http://www.cga.ct.gov/2009/BA/2009HB-07007-R00SS3-
BA.htm (last visited June 23, 2014).
Therefore, we find abundant, clear evidence in the
statutory scheme that the legislature did not intend to
make the regional districts the legal successors to the
local districts. Instead, it plainly allowed the regional
districts to choose whether to assume obligations of
the local districts. In light of this conclusion, we need
not consider whether this court would adopt the com-
mon-law rules of municipal succession cited by the
District Court to resolve an ambiguity in the scheme.14
Therefore, we answer ‘‘no’’ to the first certified question
asking whether the defendant is the legal successor to
Greater Hartford.
In light of this conclusion, we do not answer the
second certified question. Instead, we turn to the third
certified question, which asks what entity, if any, is
responsible for Greater Hartford’s obligations. We note
that this question presupposes that Greater Hartford
would not have been responsible for its own liabilities,
based on the District Court’s view that no statute
extended the life of the local districts after their dissolu-
tion. As we previously have explained, however, the
statutory scheme authorizes a winding up period to
allow local districts to account for liabilities. Implicit
in such authority is the ability to settle or otherwise be
subject to litigation to resolve outstanding obligations.
Cf. General Statutes § 33-884 (a) (‘‘[a] dissolved corpo-
ration continues its corporate existence but may not
carry on any business except that appropriate to wind
up and liquidate its business and affairs, including: [1]
[c]ollecting its assets; [2] disposing of its properties that
will not be distributed in kind to its shareholders; [3]
discharging or making provision for discharging its lia-
bilities; [4] distributing its remaining property among
its shareholders according to their interests; and [5]
doing every other act necessary to wind up and liquidate
its business and affairs’’); General Statutes § 33-891 (a)
(‘‘[a] corporation administratively dissolved continues
its corporate existence but may not carry on any busi-
ness except that necessary to wind up and liquidate its
business and affairs under section 33-884 and notify
claimants under sections 33-886 and 33-887’’). Nonethe-
less, we note that, even if Greater Hartford was still
winding up district business when the plaintiff com-
menced the present action, a matter on which no evi-
dence was presented by the parties, it would appear
that any claim against Greater Hartford would now be
barred by the six year statute of limitations on contract
actions. See General Statutes § 52-576.
If, however, Greater Hartford transferred any of its
assets to the defendant and thereby rendered itself
unable to pay an existing debt to the plaintiff, then
the plaintiff could be entitled to hold the defendant
responsible for Greater Hartford’s obligations. As we
previously have noted, Greater Hartford was statutorily
required to account for its liabilities before distributing
its cash assets. Under the rules applicable to fraudulent
conveyances, a recipient of assets that were transferred
by the debtor before the creditor had been satisfied
would have to disgorge those assets. See State v. Gog-
gin, 208 Conn. 606, 619, 546 A.2d 250 (1988) (‘‘[a] fraudu-
lent conveyance . . . is one made without substantial
consideration and which renders the [transferor] unable
to meet his obligation or one made with a fraudulent
intent in which the [transferee] participated’’ [internal
quotation marks omitted]); Molitor v. Molitor, 184
Conn. 530, 535–36, 440 A.2d 215 (1981) (‘‘Both under
our law and under the [Uniform Fraudulent Conveyance
Act], a conveyance may judicially be declared void and
set aside as against any person except a purchaser for
fair consideration without knowledge of the fraud at
the time of purchase, if the conveyance was fraudulent.
. . . A conveyance is fraudulent if made with actual
intent to avoid any debt or duty or if made without
any substantial consideration by a person who is or
will be thereby rendered insolvent. . . . A person is
insolvent for these purposes when he is unable to pay
his then-existing debts.’’ [Citations omitted; emphasis
added.]). Of course, the plaintiff may recover no more
than the value of the assets transferred. See Robinson
v. Coughlin, 266 Conn. 1, 11, 830 A.2d 1114 (2003)
(‘‘although a creditor may recover the value of the asset
transferred, such recovery is allowed under [General
Statutes] § 52-552i [b] only to the extent that the transfer
is voidable under [General Statutes] § 52-552h [a] [1]’’);
Derderian v. Derderian, 3 Conn. App. 522, 529, 490
A.2d 1008 (‘‘[c]ommon law principles do not authorize a
general creditor to pursue the transferee in a fraudulent
conveyance action for anything other than the specific
property transferred or the proceeds thereof’’), cert.
denied, 196 Conn. 810, 811, 495 A.2d 279 (1985).
We express no opinion as to whether any defenses
might be available under the facts and circumstances
of a particular case. Moreover, we note that our conclu-
sions herein have no bearing on whether the plaintiff
may seek to recover under other equitable doctrines,
such as quantum meruit, for the defendant’s alleged
unauthorized use of the plaintiff’s photographs.
We therefore conclude that the answer to the first
certified question is: No. We answer the third certified
question as follows: If Greater Hartford has transferred
any of its assets to another entity and the plaintiff can
establish that the assets were fraudulently conveyed,
that entity may be responsible for Greater Harford’s
obligations to the extent of the value of the assets
received.
In this opinion the other justices concurred.
1
As we explain later in this opinion, under § 10-397a, a regional district
may assume the liabilities of a local district if, inter alia, such a decision is
approved by the regional district’s board of directors and an oversight body,
currently the Department of Economic and Community Development.
2
As a threshold matter, the District Court sua sponte raised and resolved
affirmatively the question of whether diversity of citizenship existed to
support its jurisdiction. Specifically, the court determined that the defendant
is not an arm of the state, which would preclude it from being a citizen of
the state of Connecticut under 28 U.S.C. § 1332. The court recognized the
multifaceted nature of tourism districts and determined that, on balance,
the weight of considerations favored the conclusion that the defendant
functions as an autonomous entity akin to a political subdivision or public
corporation, rather than an arm of the state.
3
We note that, in contradiction to the position that it had taken before
the District Court, the defendant contends in its brief to this court that the
factual record is insufficient as a matter of law for this court to address
any of the certified questions. In particular, it contends that, because one of
the municipalities that comprised Greater Hartford was assigned to another
regional district, that regional district also must be made a party to the
proceedings. We conclude that the record and the statutory scheme provide
an adequate basis for us to resolve the certified questions.
4
At oral argument before this court, the defendant indicated that it and
Greater Hartford had registered with the state as tax exempt corporations
under § 501 (c) of the Internal Revenue Code in order to provide tax incen-
tives for private donors. Counsel for the defendant conceded that the defen-
dant had been given poor advice to file a name change rather than to file
its own paperwork if it intended to make clear its distinct identity from
that of Greater Hartford. We note that the plaintiff has asserted no claims
that it relied to its detriment on actions taken by the defendant with regard
to this action.
5
In support of this finding, the District Court cited an affidavit by Deborah
Moore, who had served the defendant as its industry representative when
the defendant drafted its bylaws in 2003, as its director from 2005 to 2008,
and as a board member thereafter. Moore also was a former chairperson
of the Connecticut River Valley and Shoreline Visitors Council. It is unclear
from the record how or whether this council relates to the local tourism
districts. Moore stated in her affidavit that, in 2003, she had advised a
representative of the plaintiff that ‘‘the various districts were in dissolution
and out of business.’’ The plaintiff submitted an affidavit disputing this
communication. We note that Moore did not attest to any facts specifically
related to Greater Hartford, either with respect to whether Greater Hartford
retained assets or was subject to liabilities other than those claimed in this
case following its dissolution.
6
In response to questioning at oral argument before this court, the defen-
dant was unable to identify any statute authorizing its incorporation. It
suggested that such authority could have arose under the scheme creating
the local districts, but also was unable to identify any specific authority for
the local districts’ incorporation. Nonetheless, we note that the corporate
status of neither entity directly bears on our resolution of the certified
questions.
7
The 2009 Public Act; Public Acts, Spec. Sess., September, 2009, No. 09-
7, § 12; made no changes to the eastern regional district, merged the south
central regional district into the defendant, and combined the northwestern
and southwestern regional districts into the western regional district. See
General Statutes (Rev. to 2011) § 10-397 (a).
8
General Statutes (Rev. to 2005) § 10-397a provides: ‘‘(a) As used in
this section:
‘‘(1) ‘Commission’ means the Connecticut Commission on Culture and
Tourism created by section 10-392;
‘‘(2) ‘Executive director’ means the executive director of the Connecticut
Commission on Culture and Tourism appointed pursuant to section 10-393;
‘‘(3) ‘Former tourism district’ means the tourism districts, as defined in
section 32-302 of the general statutes, revision of 1958, revised to January
1, 2003; and
‘‘(4) ‘Regional tourism district’ means one of the five regional tourism
districts created by section 10-397.
‘‘(b) Any former tourism district having a cash surplus, after accounting
for all liabilities, may distribute such surplus to the regional tourism district
or districts serving the towns formerly served by such district. Any distribu-
tion shall be divided among the new district or districts in accordance with
the following schedule:
Former District New District(s)
Northeastern Eastern (100%)
Southeastern Eastern (100%)
North Central Central (100%)
Greater Hartford Central (95%)
Northwestern (5%)
Central Connecticut Central (80%)
South Central (20%)
Connecticut Valley Central (60%)
South Central (40%)
Greater New Haven South Central (67%)
Northwestern (20%)
Southwestern (13%)
Litchfield Hills Northwestern (100%)
Housatonic Valley Northwestern (100%)
Greater Waterbury Northwestern (100%)
Greater Fairfield Southwestern (100%)
‘‘(c) Any former tourism district may, with the approval of the executive
director, transfer noncash assets, including fixed assets and leases, to a
regional tourism district or districts serving the towns formerly served by
such district.
‘‘(d) Any regional tourism district may, by vote of its board of directors
and with the approval of the commission, assume the liabilities of a former
tourism district that served all or part of the area served by the new district.
No such assumption shall be approved unless (1) the regional district’s
approved budget makes provision for the costs arising from the assumption
of liability; and (2) the commission finds that the proposed assumption of
liability is fair and equitable.’’
We note that the schedule in subsection (b) of former local districts refers
to the ‘‘North Central’’ district, which did not exist as such, and omits the
Tobacco Valley district, which was one of the eleven local districts. Because
all of the towns formerly served by the Tobacco Valley district were assigned
to the central regional district, we assume that the ‘‘North Central’’ district
is the Tobacco Valley district.
9
Evidence that some of the local districts continued to wind up their
affairs following their dissolution is also reflected in General Statutes (Rev.
to 2005) § 10-397b, which provides: ‘‘Any tourism district in existence on
July 1, 2003, that terminates operations prior to January 1, 2004, may file a
single audit report for the period from July 1, 2002, until the termination
of such district’s operations. Such audit shall in all other respects comply
with the provisions of chapter 55b.’’
10
General Statutes (Rev. to 2009) § 10-397a (b), as amended by Spec. Sess.
P.A. 09-7, § 14, provides: ‘‘Any former tourism district having a cash surplus,
after accounting for all liabilities, may distribute such surplus to the regional
tourism district or districts serving the towns formerly served by such
district. Any distribution shall be divided among the new district or districts
in accordance with the following schedule:
Former District New District(s)
Northeastern Eastern (100%)
Southeastern Eastern (100%)
North Central Central (100%)
Greater Hartford Central (95%)
Western (5%)
Central Connecticut Central (100%)
Connecticut Valley Central (100%)
Greater New Haven Central (67%)
Western (33%)
Litchfield Hills Western (100%)
Housatonic Valley Western (100%)
Greater Waterbury Western (100%)
Greater Fairfield Western (100%)’’
11
The legislature made technical changes to § 10-397a in 2011. See Public
Acts 2011, No. 11-48, § 103. We note that, as of the 2011 changes, there is
no provision addressing what a local district may or must do with its surplus
cash if it has accounted for all liabilities and elected not to distribute those
cash assets to the region(s) prescribed in the schedule. It is unclear whether
the legislature has declined to do so because of the fact that private donors
also contributed funds to the districts.
12
General Statutes § 10-392 (d) was amended during a special session in
May, 2004; see Public Acts, Spec. Sess., May, 2004, No. 04-2, § 30; and
references to the Connecticut Commission on Arts, Tourism, Culture, History
and Film were replaced with the Connecticut Commission on Culture
and Tourism.
13
General Statutes § 4-38d provides for the transfer or assignment of
functions, powers, or duties of a department, institution, or agency to a
successor department, institution, agency or authority. General Statutes § 4-
39 provides for a transfer of appropriations upon the transfer of functions.
14
The District Court, in its memorandum of decision, cited the following
common-law rules: ‘‘It has long been established that when a legislature
dissolves a municipal corporation and creates a new legal entity composed
of substantially the same population and encompassing substantially the
same territory, the new municipal entity is the legal successor to the rights
and obligations of the dissolved entity. . . .
‘‘State and federal courts have widely adopted the corollary rule that
when a municipal entity succeeds to the rights and obligations of a predeces-
sor entity, the reorganized entity is liable for its predecessor’s contractual
obligations. . . . In the absence of any express statutory provision to the
contrary, therefore, courts presume that a legislature intends for a reorga-
nized municipal corporation to remain subject to the liabilities of its prede-
cessor corporation. . . .
‘‘This rule has been justified on the ground that the successor entity
benefits from obligations undertaken by the predecessor, and because either
the successor entity or the state must assume the liability in order to avoid
impairing contractual obligations. . . . As the [United States] Supreme
Court explained in Mobile v. Watson, [116 U.S. 289, 305, 6 S. Ct. 398, 29 L. Ed.
620 (1886)], the remedies for the enforcement of such obligations assumed by
a municipal corporation, which existed when the contract was made, must
be left unimpaired by the legislature, or, if they are changed, a substantial
equivalent must be provided so as to comply with the Constitution.’’ (Cita-
tions omitted; internal quotation marks omitted.)
We note that the authority cited by the District Court does not involve
application of these common-law rules to an entity like the tourism districts,
which have indicia of being an arm of the state, a quasi-municipal corpora-
tion, and a quasi-private corporation. We further note that tourism districts,
unlike municipalities, lack taxing authority that would enable them to raise
funds to satisfy unanticipated liabilities.