Cimmino v. Marcoccia , 149 Conn. App. 350 ( 2014 )

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ANDREW CIMMINO v. MARIA MARCOCCIA
(AC 34961)
Beach, Sheldon and Foti, Js.
Submitted on briefs November 21, 2013—officially released April 8, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Radcliffe, J.)
George Jepsen, attorney general, and Philip Miller,
assistant attorney general, filed a brief for the appellants
(defendant Christina Ghio et al.).
Josephine Smalls Miller filed a brief for the appel-
lee (plaintiff).
Opinion
FOTI, J. The defendants Christina Ghio and Robert
Teitelman appeal from the judgment of the trial court
denying their motion to dismiss counts seven through
ten of the eighth amended complaint filed by the plain-
tiff, Andrew Cimmino, for want of subject matter juris-
diction.1 On appeal, the defendants claim that the court
improperly concluded that the claims presented in
counts seven, eight, nine, and ten of that complaint (1)
were not barred by the doctrine of sovereign immunity,
and (2) were not subject to statutory immunity pursuant
to General Statutes § 4-165. We agree that the claims
against the defendants are barred by the doctrine of
sovereign immunity and, accordingly, reverse the judg-
ment of the trial court.2
The record reveals the following procedural history.
On March 16, 2009, the plaintiff, the former principal
of Thomas Hooker Elementary School in Bridgeport
(school), commenced this action against the named
defendant, Maria Marcoccia, alleging vexatious suit and
intentional infliction of emotional distress. On February
26, 2010, the court granted the plaintiff’s motion for
permission to file his fifth amended complaint and to
cite in Sally Lyddy and Ellen Tiedman, a former
employee and current employee of Bridgeport Public
Schools, respectively, and the Bridgeport Board of Edu-
cation (board) as additional defendants. On January
23, 2012, the court granted the plaintiff’s motion for
permission to file his eighth amended complaint and
to cite in additional defendants, and the plaintiff cited
in the defendants in the present appeal, Ghio and Teitel-
man, in their ‘‘individual capacities only.’’3
At all times relevant to the allegations in the plaintiff’s
complaint, Ghio was employed as an attorney by the
Office of the Child Advocate and Teitelman was
employed as an assistant attorney general. In his com-
plaint, with respect to both Ghio, in counts seven and
eight, and Teitelman, in counts nine and ten, the plaintiff
alleged tortious interference with contract and inten-
tional infliction of emotional distress. On the basis of
the allegations against the defendants, the plaintiff
sought compensatory and punitive damages, as well as
‘‘such relief as may be deemed appropriate’’ by the
court.
On March 29, 2012, the defendants moved to dismiss
counts seven, eight, nine, and ten of the plaintiff’s com-
plaint for lack of subject matter jurisdiction, contending
that the claims therein were barred by the doctrine of
sovereign immunity or, alternatively, by the defense
of statutory immunity pursuant to § 4-165. The court
denied the defendants’ motion with respect to the defen-
dants’ claims of sovereign immunity. The court ruled
that the doctrine did not apply because: (1) the defen-
dants had been sued in their individual capacities only,
(2) the complaint contained allegations that the defen-
dants exceeded their statutory authority, and (3) the
complaint did not seek money damages from the state.
With respect to the claims of statutory immunity pursu-
ant to § 4-165, the court ruled that statute did not apply
because it only immunizes state employees from liabil-
ity for negligence, not ‘‘the type of wilful and intentional
conduct alleged against both defendants’’ in the com-
plaint. This appeal followed.4
‘‘As we must in reviewing a motion to dismiss, we
take the facts to be those alleged in the complaint,
including those facts necessarily implied from the alle-
gations, construing them in a manner most favorable
to the pleader.’’ (Internal quotation marks omitted.)
Miller v. Egan, 265 Conn. 301, 305, 828 A.2d 549 (2003).
In his complaint, the plaintiff alleged the following facts:
Between 2001 and 2012, the plaintiff served as principal
of the school. In October, 2004, the plaintiff was the
subject of an investigation by the Bridgeport Police
Department regarding an alleged incident of child abuse
that had occurred in the spring of 2002. The Department
of Children and Families (department) conducted an
investigation into the same allegations in December,
2005. Both investigations terminated in favor of the
plaintiff.
In April, 2008, a department employee contacted the
plaintiff to inform him that he was again under investiga-
tion in connection with the 2002 allegations. During the
course of the April, 2008 investigation, four photographs
relating to the allegations were presented to the plain-
tiff. The photographs, which were the impetus for the
department’s renewal of its investigation, were taken
by Marcoccia, an employee at the school. Marcoccia
delivered the photographs to the department in retalia-
tion for the plaintiff’s attempts to reveal her fraudulent
misappropriation of school funds. The April, 2008 inves-
tigation terminated in favor of the plaintiff.
Thereafter, in July, 2009, Marcoccia, Lyddy, and Tied-
man met with John DiDonato, the assistant superinten-
dent of Bridgeport public schools, to present renewed
allegations against the plaintiff in connection with the
2002 incident.5 During this meeting, they supplied DiDo-
nato with the photographs that Marcoccia previously
had delivered to the department in April, 2008. Also in
July, 2009, Ghio, on behalf of the Office of the Child
Advocate, and Teitelman, on behalf of the Office of
the Attorney General, as part of a broader inquiry into
school district responses to child abuse, initiated an
investigation into the board’s response to the allega-
tions of child abuse made against the plaintiff in connec-
tion with the 2002 allegations. In the course of their
investigation, the defendants summoned John Ramos,
the superintendent of Bridgeport public schools, to
Hartford, where they questioned him and showed him
photographs, which were the same photographs taken
by Marcoccia of the child abuse allegedly perpetrated
by the plaintiff in 2002. After showing the photographs
to Ramos, the defendants asked him ‘‘what he intended
to do about what was depicted in the photographs.’’ As
a result of the defendants’ pressuring Ramos to take
action against the plaintiff, the board initiated a
renewed report with the department concerning the
2002 allegations against the plaintiff, placed him on
administrative leave effective September 11, 2009, and
conducted an internal investigation into the allegations.
During the internal investigation, the attorney for the
board wrote to the Department of Education regarding
the plaintiff’s pending application for recertification.
The attorney enclosed copies of the renewed report
made by the board in his correspondence. The plaintiff
later learned that approval of his pending recertification
was deferred as a result of the internal investigation.
In addition, his employment contract was terminated
effective June 16, 2010.
The defendants claim that the trial court improperly
denied their motion to dismiss the claims asserted
against them on the basis of sovereign immunity. Specif-
ically, the defendants contend that, although the plain-
tiff’s complaint purports to sue them in their individual
capacities only, the state nevertheless is the real party
in interest pursuant to the four-prong test first articu-
lated in Somers v. Hill, 143 Conn. 476, 123 A.2d 468(1956), and later expounded upon in Spring v. Con-
stantino, 168 Conn. 563, 362 A.2d 871 (1975). To the
extent that the state is the real party in interest, the
defendants further contend that the plaintiff’s claims
against them are barred by the doctrine of sovereign
immunity. We agree with the defendants.
We begin by setting forth the applicable standard of
review and relevant principles of law. ‘‘The standard
of review for a court’s decision on a motion to dismiss
is well settled. A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without
jurisdiction. . . . [O]ur review of the court’s ultimate
legal conclusion and resulting [determination] of the
motion to dismiss will be de novo. . . . In addition,
[s]overeign immunity relates to a court’s subject matter
jurisdiction over a case, and therefore [also] presents
a question of law over which we exercise de novo
review. . . . In so doing, we must decide whether [the
trial court’s] conclusions are legally and logically cor-
rect and find support in the facts that appear in the
record. . . . The principle that the state cannot be sued
without its consent, or sovereign immunity, is well
established under our case law. . . . It has deep roots
in this state and our legal system in general, finding its
origin in ancient common-law. . . . Not only have we
recognized the state’s immunity as an entity, but [w]e
have also recognized that because the state can act only
through its officers and agents, a suit against a state
officer concerning a matter in which the officer repre-
sents the state is, in effect, against the state. . . .
Exceptions to this doctrine are few and narrowly con-
strued under our jurisprudence.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
Chief Information Officer v. Computers Plus Center,
Inc., 310 Conn. 60, 79–80, 74 A.3d 1242 (2013).
In the present case, although the plaintiff purports
to sue the defendants in their individual capacities and
the state is not named as a defendant, we do not deter-
mine ‘‘[w]hether a particular action is one against the
state . . . solely by referring to the parties of record.’’
(Internal quotation marks omitted.) Kenney v. Weaving,
123 Conn. App. 211, 215–16, 1 A.3d 1083 (2010). ‘‘[T]he
fact that the state is not named as a defendant does
not conclusively establish that the action is not within
the principle which prohibits actions against the sover-
eign without its consent. . . . The vital test is to be
found in the essential nature and effect of the proceed-
ing.’’ (Internal quotation marks omitted.) Spring v. Con-
stantino, supra, 168 Conn. 568. ‘‘To determine whether
an action is against the state or against a defendant in
his individual capacity, we look to the four criteria
established by our Supreme Court in [Somers v. Hill,
supra, 143 Conn. 479–80] and . . . explained . . . in
[Spring v. Constantino, supra, 568]. If all four criteria
are satisfied, the action is deemed to be against the
state and, therefore, is barred.’’ Kenney v. Weaving,
supra, 216. Accordingly, we must determine whether
‘‘(1) a state official has been sued; (2) the suit concerns
some matter in which that official represents the state;
(3) the state is the real party against whom relief is
sought; and (4) the judgment, though nominally against
the official, will operate to control the activities of the
state or subject it to liability.’’ Spring v. Constantino,
supra, 568.
Beginning with the first criterion, it is undisputed
that the defendants are both state officials, satisfying
the first criterion.6 With respect to the second criterion,
the action against the defendants stems from their inter-
view with Ramos. The defendants interviewed Ramos
in connection with a joint investigation initiated by the
Office of the Child Advocate and the Office of the Attor-
ney General. Although it appears that any claim arising
from the defendants’ interview with Ramos would
plainly concern a matter in which they were acting on
behalf of the state, the plaintiff argues that when the
defendants asked Ramos what he intended to do about
the depictions in the photographs, they implicitly urged
him to take action against the plaintiff. In doing so, the
plaintiff argues that the defendants acted beyond the
scope of their official functions and, consequently, the
suit is not directed at a matter in which the defendants
were acting on behalf of the state. The plaintiff’s argu-
ment fails, however, as the statutorily authorized7 joint
investigation ‘‘included an in-depth examination of five
school districts in Connecticut,’’ including Bridgeport,
and sought to explore both ‘‘the manner in which allega-
tions that school employees have abused and/or
neglected children are addressed,’’ and ‘‘the responses
of local school districts, [the department], and the State
Department of Education.’’ When the defendants asked
Ramos what he intended to do about the depictions in
the photographs, they were acting in furtherance of a
joint investigation authorized by statute and initiated
by the state agencies that employed them. Accordingly,
because the action against the defendants concerns a
matter in which they represented the state, the second
criterion is satisfied.
Turning to the third criterion, the plaintiff argues that
he unequivocally sued the defendants in their individual
capacities only and that these allegations establish ‘‘that
the state is not the real party against whom relief is
sought.’’ The plaintiff seeks damages allegedly caused
by the conduct of the defendants in the discharge of
their official duties, namely, conducting a joint investi-
gation into ‘‘the manner in which allegations that school
employees have abused and/or neglected children are
addressed.’’ That the plaintiff purports to sue the defen-
dants only in their individual capacities is not, in itself,
determinative of whether the state is the real party in
interest. See Sullins v. Rodriguez, 281 Conn. 128, 136,
913 A.2d 415 (2007) (‘‘test set forth in Spring and Miller
is an appropriate mechanism . . . to determine the
capacity in which the named defendants are sued in
actions asserting violations of state law’’); Kenney v.
Weaving, supra, 123 Conn. App. 215–16 (we do not
determine whether action is against state solely by
referring to parties of record). The damages sought by
the plaintiff are premised entirely on injuries alleged
to have been caused by the defendants in performing
acts that were part of their official duties. We conclude
that the state is the real party in interest and, accord-
ingly, the third criterion is satisfied. See Somers v. Hill,
supra, 143 Conn. 480 (state real party in interest where
damages sought for injuries allegedly caused by com-
missioner in carrying out acts for which state employed
him); Macellaio v. Newington Police Dept., 142 Conn.
App. 177, 181, 64 A.3d 348 (2013) (‘‘third criterion [of
Spring test] . . . met because damages are sought for
injuries allegedly caused by the defendant for per-
forming acts that are a part of his official duties such
that the state is the real party against whom relief is
sought’’); Kenney v. Weaving, supra, 216–17 (same).
Finally, the fourth criterion, that the judgment,
though nominally against state officials, will operate to
control the activities of the state, is also satisfied. Any
judgment against the defendants would impact the man-
ner in which state officials conduct investigations.8
Hultman v. Blumenthal, 67 Conn. App. 613, 621, 787
A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253(2002).
In sum, because the criteria in Spring are satisfied,
we conclude that the plaintiff’s complaint alleged claims
against the defendants in their official capacities. The
action against the defendants is, in effect, against the
state. This conclusion does not end our inquiry, how-
ever, as ‘‘[t]he sovereign immunity enjoyed by the state
is not absolute.’’ (Internal quotation marks omitted.)
Macellaio v. Newington Police Dept., supra, 142 Conn.
App. 183 n.6. There are three exceptions to the doctrine
of sovereign immunity: ‘‘(1) when the legislature, either
expressly or by force of a necessary implication, statu-
torily waives the state’s sovereign immunity . . . (2)
when an action seeks declaratory or injunctive relief
on the basis of a substantial claim that the state or one
of its officers has violated the plaintiff’s constitutional
rights . . . and (3) when an action seeks declaratory
or injunctive relief on the basis of a substantial allega-
tion of wrongful conduct to promote an illegal purpose
in excess of the officer’s statutory authority.’’ (Internal
quotation marks omitted.) Id. In the present case, the
plaintiff seeks money damages for harm caused by the
defendants in the discharge of their official duties. The
plaintiff has not directed us to any statute indicating
that the legislature has waived sovereign immunity for
this action. Moreover, the plaintiff does not seek declar-
atory or injunctive relief. The action does not fall within
any recognized exception to the doctrine of sovereign
immunity and is, therefore, barred. Accordingly, the
trial court improperly denied the defendants’ motion
to dismiss for want of subject matter jurisdiction.
The judgment denying the defendants’ motion to dis-
miss is reversed and the case is remanded with direction
to grant the motion, and to render judgment dismissing
counts seven, eight, nine, and ten of the complaint.
In this opinion the other judges concurred.
1
Although there are additional defendants before the trial court, the
motion to dismiss brought by Ghio and Teitelman is the subject of the
present appeal. In this opinion, we refer to Ghio and Teitelman collectively
as the defendants, and to them individually by name where appropriate.
2
In light of this conclusion, we need not address whether the defendants
were entitled to the defense of statutory immunity pursuant to General
Statutes § 4-165. ‘‘[I]f sovereign immunity does not apply to the claim against
[a state official] in her official capacity, the statutory immunity may then
apply to the claim against her in her individual capacity. Thus, before
determining whether and to what extent the defendants are shielded by
the statutory immunity provided by § 4-165, it is appropriate to determine
whether the claims against them are barred by the common-law doctrine
of sovereign immunity.’’ Shay v. Rossi, 253 Conn. 134, 162–63, 749 A.2d 1147(2000), overruled in part on other grounds by Miller v. Egan, 265 Conn.
301, 325, 828 A.2d 549 (2003).
3
The eighth amended complaint is the operative complaint. For purposes
of clarity, we refer in this opinion to the operative complaint as the complaint.
4
‘‘The general rule is that the denial of a motion to dismiss is an interlocu-
tory ruling and, therefore, is not a final judgment for purposes of appeal. . . .
The denial of a motion to dismiss based on a colorable claim of sovereign
immunity, by contrast, is an immediately appealable final judgment because
the order or action so concludes the rights of the parties that further proceed-
ings cannot affect them.’’ (Citation omitted; internal quotation marks omit-
ted.) Miller v. Egan, 265 Conn. 301, 303 n.2, 828 A.2d 549 (2003). There is
no dispute that the defendants’ claim of sovereign immunity is colorable.
Accordingly, we consider the merits of the defendants’ claim that the court
improperly denied their motion to dismiss.
5
In his complaint, the plaintiff alleged that neither Marcoccia nor Lyddy
were employed by Bridgeport Public Schools in July, 2009. Tiedman, how-
ever, was employed by Bridgeport Public Schools when the group
approached DiDonato in July, 2009.
6
In his brief before this court, the plaintiff concedes that the defendants
are state officials. In addition, the complaint alleges that the defendants,
‘‘at all times relevant herein,’’ have been attorneys and agents for ‘‘the
Office of the Child Advocate’’ and ‘‘the Connecticut Office of the Attorney
General,’’ respectively.
7
The joint investigation was initiated pursuant to General Statutes §§ 3-
125 (a) and 46a-13l (a). Section 46a-13l (a) provides in relevant part: ‘‘The
Child Advocate shall . . . (1) Evaluate the delivery of services to children
by state agencies and those entities that provide services to children through
funds provided by the state . . . (3) Review complaints of persons concern-
ing the actions of any state or municipal agency providing services to chil-
dren . . . .’’
8
The complaint alleges that the defendants caused harm to the plaintiff
when they asked Ramos, the superintendent of Bridgeport public schools,
what he intended to do about depictions of alleged child abuse in certain
photographs. We agree with the defendants that holding state actors liable
for inquiring whether schools are adequately addressing allegations of inap-
propriate conduct within their districts, especially when such inquiries are
part of an investigation authorized by statute, would inhibit the efforts of
the Office of the Child Advocate to discharge its statutory mandate.