Bellsite Development, LLC v. Monroe ( 2015 )

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BELLSITE DEVELOPMENT, LLC v. TOWN OF
MONROE ET AL.
(AC 35433)
Gruendel, Alvord and West, Js.
Argued October 15, 2014—officially released January 27, 2015
(Appeal from Superior Court, judicial district of
Hartford, Peck, J.)
Richard C. Robinson, with whom were John P. Fra-
cassini, Nathaniel J. Gentile, and on the brief, Benja-
min B. Manchak, for the appellants (defendants).
Jack G. Steigelfest, with whom was Thomas P. Cella,
for the appellee (plaintiff).
Opinion
GRUENDEL J. The defendants, the Town of Monroe
(town) and Andrew J. Nunn,1 appeal from the judgment
of the trial court denying their motion to set aside a
jury verdict awarding the plaintiff, Bellsite Develop-
ment, LLC, damages on claims of breach of contract and
negligent misrepresentation. On appeal, the defendants
claim that the court abused its discretion when it denied
the motion to set aside the verdict because the jury’s
findings of a breach of contract and negligent misrepre-
sentation were unsupported by the evidence. We agree
and accordingly reverse the judgment of the trial court.
In reviewing the evidence in the light most favorable
to sustaining the verdict, the jury reasonably could have
found the following facts. In 2000, the town sought
to improve the communications systems of its police
department. Due to the topography of the town, the
existing communication network suffered from ‘‘dead
spots,’’ which were areas of town where the communi-
cation equipment could not receive a signal. In response
to this problem, the town created an ad hoc committee
tasked with the responsibility of evaluating potential
sites for a new communications tower. The hope was
that the new tower would improve the signal coverage
and eliminate ‘‘dead spots’’ throughout the town. Some-
time in early to mid-2001, the ad hoc committee pre-
sented the Monroe town council with a report, which
included potential locations for a new tower, cost esti-
mates, and height requirements.
After some discussion, the town officials determined
that there were three potential locations for the new
communications tower. Two of the potential sites were
later eliminated from consideration, however, because
they were located within the town’s historic district.
The remaining potential site was on property owned
by the Monroe Volunteer Fire Department (fire depart-
ment). The fire department was an independent organi-
zation and was not affiliated with the town.
In the spring of 2001, Karen Burnaska, the town’s first
selectman,2 met several times with William Bellrock,
the manager of the plaintiff. According to both parties,
Burnaska was interested in having the tower built at
the fire department location and the plaintiff was inter-
ested in working on the project. Both parties acknowl-
edged that prior to the start of construction at the fire
department location, a ground lease would need to be
obtained, specific radio frequency tests would need to
be conducted, and a zoning application would need to
be approved.
After some discussion, Burnaska suggested to Bell-
rock that the plaintiff could construct and own the
communications tower, while reserving space on the
tower for the Monroe Police Department’s communica-
tion equipment.3 Under such an arrangement, the plain-
tiff would derive revenue by renting tower space to
various private communications companies. This meant
that the plaintiff would need to submit the application
and enter into the ground lease with the fire department
on its own behalf, rather than as a representative of
the town. The plaintiff needed the town to locate its
equipment on the tower so that it could qualify as a
municipal tower. According to Bellrock, plans to build
municipal towers only required approval of a special
permit application by the Monroe Planning and Zoning
Commission (zoning commission).4 By contrast, non-
municipal tower applications were required to be filed
with the Connecticut Siting Council. Bellrock testified
that siting council applications were ‘‘extremely expen-
sive’’ and that he had no prior experience with the siting
council’s process. Bellrock believed he needed the town
to locate its equipment on the tower; otherwise he
would have abandoned the plan altogether. Ultimately,
Bellrock told Burnaska that if the town would locate
its equipment on the tower, then the plaintiff would not
charge rent for the space. Bellrock testified that in the
spring of 2001, Burnaska agreed.
After reaching an agreement with Burnaska, the
plaintiff began pursuing the construction of the tower.
It obtained a ground lease from the fire department,
conducted surveys and tests on the property, and sub-
mitted an application to the Federal Aviation Adminis-
tration. The plaintiff then completed the special permit
application and submitted it to the zoning commission.
The application was submitted on behalf of the fire
department, as it was the owner of the property. In
support of the application, Burnaska submitted a letter
on behalf of the town that stated: ‘‘[p]lease be advised
that the town would be willing to [locate] its public
safety communications systems on the tower, provided
the town’s needs and requirements will be met.’’
In the fall of 2001, the zoning commission held two
public hearings to consider the special permit applica-
tion. At the first meeting, Bellrock explained to the
zoning commission that the plaintiff had only reserved
space for the town and that ‘‘they may or may not
choose to relocate on the tower.’’ Furthermore, John
Fallon, an attorney representing the fire department,
but who was hired by the plaintiff, told the zoning com-
mission that ‘‘[t]here is no agreement in place with
the Police Department. They’ve made no representation
about actually using the height, but the height has been
reserved for their use.’’ Finally, Daniel Tuba, the Monroe
Town Planner, explained to the zoning commission that
the town could not officially commit to locating on
the tower because ‘‘whatever happens with the police
communications at this point requires authorization
through the Board of Finance, lease authorizations
through the town council, and a number of other steps
which have not been taken at this point.’’ Upon the
conclusion of the second public hearing, the zoning
commission voted to approve the application.
Shortly after the special permit application was
approved, a contiguous landowner filed a timely appeal
to the Superior Court, challenging the issuance of the
special permit. The appeal process took more than two
years, with the court denying the appeal in March, 2004.
See Hurley v. Monroe Planning & Zoning Commis-
sion, Superior Court, judicial district of Fairfield,
Docket No. CV-02-0389661 (March 8, 2004) (36 Conn.
L. Rptr. 598).5
After the denial of the appeal, the plaintiff sought
to begin construction of the communications tower.
Bellrock sent an e-mail communication to Nunn, the
town’s first selectman at the time, requesting a meeting
to ‘‘outline the town’s position.’’ Nunn responded by
e-mail, stating that ‘‘at this time, the town will not need
this tower to accommodate our police communications
needs. The long waiting period forced us to pursue
other avenues.’’ Bellrock then sent a formal letter to
Nunn requesting that the town ‘‘honor their commit-
ment to locate on the tower.’’ By that point, however,
the town had abandoned its plan to locate on the plain-
tiff’s tower and had decided to pursue other alter-
natives.
On April 5, 2006, the plaintiff filed this civil action
against the town and Nunn. In the operative complaint,
the plaintiff alleged three counts: breach of contract,
promissory estoppel, and negligent misrepresentation.
Following a trial, the jury returned a verdict in favor
of the plaintiff on the first (breach of contract) and third
counts (negligent misrepresentation), and a verdict in
favor of the defendants on the second count (promis-
sory estoppel). The jury awarded the plaintiff $700,000
in damages for count one and no additional damages
for count three.6 After receiving the jury verdict, the
defendants filed a motion to set aside the verdict, which
was denied by the court in February, 2013. This appeal
followed. After the defendants filed a motion for articu-
lation, the court issued a memorandum of decision on
the motion to set aside the verdict in December, 2013.
On appeal, the defendants claim that the court erred
in denying the motion to set aside the jury’s verdict on
the first and third counts. Specifically, the defendants
claim that the jury’s findings of a breach of contract
and negligent misrepresentation were not supported by
the evidence adduced at trial.
‘‘The standard of review governing our review of a
trial court’s denial of a motion to set aside the verdict
is well settled. The trial court possesses inherent power
to set aside a jury verdict which, in the court’s opinion,
is against the law or the evidence. . . . [The trial court]
should not set aside a verdict where it is apparent that
there was some evidence upon which the jury might
reasonably reach [its] conclusion, and should not refuse
to set it aside where the manifest injustice of the verdict
is so plain and palpable as clearly to denote that some
mistake was made by the jury in the application of legal
principles . . . . Ultimately, [t]he decision to set aside
a verdict entails the exercise of a broad legal discretion
. . . that, in the absence of clear abuse, we shall not
disturb.’’ (Internal quotation marks omitted.) Embalm-
ers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 32–33,
929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d
246 (2007).
I
The defendants first claim that the jury’s finding that
they breached a contract was not supported by the
evidence and was contrary to law. The plaintiff con-
tends that the evidence reasonably supported the con-
clusion that the parties entered into an express or
implied contract. The defendants, on the other hand,
argue that the plaintiff failed to present evidence which
could reasonably support the jury’s finding that there
was a contract between the parties. We agree with
the defendants.
We now set forth the applicable legal standard gov-
erning breach of contract claims involving municipali-
ties. ‘‘A contract is an agreement between parties . . . .
Contracts may be express or implied. . . . If the
agreement is shown by the direct words of the parties,
spoken or written, the contract is said to be an express
one. But if such agreement can only be shown by the
acts and conduct of the parties, interpreted in the light
of the subject matter and of the surrounding circum-
stances, then the contract is an implied one.’’ (Internal
quotation marks omitted.) Boland v. Catalano, 202
Conn. 333, 336–37, 521 A.2d 142 (1987). ‘‘To form a valid
and binding contract in Connecticut, there must be a
mutual understanding of the terms that are definite and
certain between the parties. . . . To constitute an offer
and acceptance sufficient to create an enforceable con-
tract, each must be found to have been based on an
identical understanding by the parties. . . . If the
minds of the parties have not truly met, no enforceable
contract exists. . . . [A]n agreement must be definite
and certain as to its terms and requirements. . . . So
long as any essential matters are left open for further
consideration, the contract is not complete.’’ (Internal
quotation marks omitted.) Duplissie v. Devino, 96
Conn. App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn.
916, 908 A.2d 536 (2006).
In breach of contract claims involving a municipality,
the plaintiff has the additional burden of proving that
the government official entering into the contract had
the authority to do so. Norwalk v. Board of Labor Rela-
tions, 206 Conn. 449, 452, 538 A.2d 694 (1988) (‘‘it fol-
lows that if the . . . agent had in fact no power to bind
the municipality, there is no liability on the express
contract’’ [internal quotation marks omitted]). This
power flows from the municipal charter. ‘‘It has been
well established that a city’s charter is the fountainhead
of municipal powers . . . . The charter serves as an
enabling act, both creating power and prescribing the
form in which it must be exercised. . . . Agents of a
city . . . have no source of authority beyond the char-
ter. . . . In construing a city charter, the rules of statu-
tory construction generally apply. . . .
‘‘The officer, body or board duly authorized must
act [on] behalf of the municipality, otherwise a valid
contract cannot be created. Generally the power to
make contracts on behalf of the municipality rests in
the council or governing body . . . . Generally, no offi-
cer or board, other than the common council, has power
to bind the municipal corporation by contract, unless
duly empowered by statute, the charter, or authority
conferred by the common council, where the latter may
so delegate its powers . . . . 10 E. McQuillin, Munici-
pal Corporations (3d Ed. Rev. 1990) § 29.15, p. 315. . . .
It follows that agents of a city, including its commis-
sions, have no source of authority beyond the charter.
[T]heir powers are measured and limited by the express
language in which authority is given or by the implica-
tion necessary to enable them to perform some duty
cast upon them by express language. . . . All who con-
tract with a municipal corporation are charged with
notice of the extent of . . . the powers of municipal
officers and agents with whom they contract, and hence
it follows that if the . . . agent had in fact no power
to bind the municipality, there is no liability on the
express contract . . . . Thus, every person who deals
with [a municipal corporation] is bound to know the
extent of its authority and the limitations of its powers.’’
(Citations omitted; internal quotation marks omitted.)
Fennell v. Hartford, 238 Conn. 809, 813–14, 681 A.2d
934 (1996).
The town’s charter establishes the organizational
structure of the local government. This organizational
structure divides power between a first selectman
(executive branch) and a nine-person town council (leg-
islative branch). The charter allocates specific powers
and responsibilities to each branch. Among the powers
and duties of the town council is ‘‘[t]he power to
approve and authorize contracts to which the town is
a party or in which the town has an interest.’’ Charter
of the Town of Monroe, ch. II, § 4. Among the powers
and duties of the first selectman is the power to act as
‘‘the purchasing agent of the town,’’ to make ‘‘recom-
mendations to the Council for legislative action,’’ and
to attend ‘‘Council meetings with full right of participa-
tion in the discussion of the Council but without the
right to vote.’’ Charter of the Town of Monroe, ch.
III, § 2.
In the present case, the plaintiff does not allege to
have formed a contract with the town council,7 but
rather alleges that a contract was formed with Bur-
naska, the first selectman at the time.8 As Burnaska
lacked direct authority to bind the town to a contract,
the plaintiff bore the burden of establishing that the
town council had delegated its contracting authority to
Burnaska. As agency authority can be established both
expressly and apparently, we consider each in turn.
A
We first turn to the defendants’ claim that the jury’s
verdict was clearly erroneous because there was no
evidence to substantiate a finding of express authority
from the town council to the first selectman. The plain-
tiff argues that the jury could have reasonably con-
cluded on the basis of the town council’s actions that
express authority had been provided. We disagree and
conclude that the evidence is insufficient to support a
finding of express authority.
‘‘Agency is defined as the fiduciary relationship which
results from manifestation of consent by one person to
another that the other shall act on his behalf and subject
to his control, and consent by the other so to act . . . .
Restatement (Second), 1 Agency § 1 [1958]. . . . Thus,
the three elements required to show the existence of
an agency relationship include: (1) a manifestation by
the principal that the agent will act for him; (2) accep-
tance by the agent of the undertaking; and (3) an under-
standing between the parties that the principal will be in
control of the undertaking.’’ (Citation omitted; internal
quotation marks omitted.) Beckenstein v. Potter & Car-
rier, Inc., 191 Conn. 120, 132–33, 464 A.2d 6 (1983).
‘‘Moreover, it is a general rule of agency law that the
principal in an agency relationship is bound by, and
liable for, the acts in which his agent engages with
authority from the principal, and within the scope of the
[agency relationship]. . . . An agent’s authority may be
actual or apparent. . . . Actual authority may be
express or implied. . . . Implied authority is actual
authority circumstantially proved. It is the authority
which the principal intended his agent to possess. . . .
Implied authority is a fact to be proven by deductions
or inferences from the manifestations of consent of the
principal and from the acts of the principal and [the]
agent.’’ (Citations omitted; internal quotation marks
omitted.) Gordon v. Tobias, 262 Conn. 844, 849–50, 817
A.2d 683 (2003). In present case, the plaintiff alleges that
an oral agreement was reached at some time between
March, 20019 and September, 2001.10 We review the
record to determine if, prior to the alleged agreement,
the town council authorized Burnaska to contract on
its behalf.
A review of the record and transcripts confirm that
the plaintiff presented no evidence from which a jury
reasonably could have found, or reasonably inferred,
that express authority had been delegated from the
town council to Burnaska. At trial, the plaintiff pre-
sented four witnesses: Bellrock, Burnaska, Nunn, and
Marc Gottesdiener,11 who testified only on the issue of
damages. Burnaska was the first selectman at the time
of the purported agreement. She testified that as first
selectman, she had the power to recommend that the
town council enter into a contract, but did not have the
power to enter into a contract for the town unilaterally.12
Furthermore, she testified that she never actually prom-
ised Bellrock that the town would locate on the pro-
posed tower.13 Nunn, who later became first selectman,
was on the town council at the time the alleged
agreement took place. He testified that First Selectman
Burnaska had no authority to enter into a contract on
behalf of the town. Nunn testified that, as a member
of the town council, he was present at the meeting that
authorized Burnaska to contact the fire department to
initiate discussions about locating on the proposed
tower. He testified that, although the plaintiff’s proposal
had strong support among town officials, any contrac-
tual agreement would require the holding of a town
meeting to address any concerns, as well as formal
approval from the town council and the board of
finance. Burnaska and Nunn never testified that the
town council had delegated the authority to contract
to Burnaska.
Bellrock also testified at trial, but was unable to pro-
vide any testimony that could allow for a reasonable
inference that actual authority had been given to Bur-
naska as first selectman. Bellrock testified that he dealt
exclusively with members of the town’s executive
branch. He initially met with Sherwood Lovejoy, the
town engineer and director of public works for the
town. He later had several meetings with Burnaska.
Under the town charter, neither of these individuals
had the power to enter into a contract on behalf of
the town. Furthermore, Bellrock testified that on two
occasions, the town council did expressly authorize
Burnaska to act. In April, 2001, Burnaska was author-
ized to begin initial discussions and negotiations with
the fire department regarding the locating of communi-
cation equipment on the proposed tower. Secondly, in
July, 2001, the town council authorized Burnaska to
send a letter to the fire department president notifying
him that the town was willing to ‘‘co-locate its public
safety communications system on the tower provided
the town’s needs and requirements will be met.’’ Bell-
rock never testified, however, that the town council
had delegated its powers to Burnaska in any of her
dealings with Bellrock. As a result, there is nothing in
the trial transcript that supports a finding that Burnaska
had actual authority, either express or implied, to enter
into a contract on behalf of the town.
Finally, a thorough review of the trial exhibits reveals
no evidence from which a reasonable inference could
be made that Burnaska had been given the power to
contract. In fact, the evidence tends to suggest just the
opposite. In two separate instances, the town council
authorized Burnaska to pursue initial discussions
regarding the plaintiff’s tower. In each instance, Bur-
naska officially requested authorization in writing, the
town council responded in writing, and the authoriza-
tion was voted on at a town meeting and was recorded
in the town meeting minutes. This evidence strongly
suggests that if Burnaska had been given express
authority to contract on behalf of the town, then that
authorization would have been readily available in the
public records.
The plaintiff alleged a breach of agreement by the
town, but claimed that the agreement was made with
the first selectman and not the town council. As the
town charter does not empower the first selectman to
authorize contracts on behalf of the town, the plaintiff
was required to present evidence showing the existence
of an express or implied14 agency relationship between
the town council and the first selectman. As there was
no evidence presented indicating a delegation of author-
ity, we find any jury verdict that relies on such a finding
to be based on pure speculation. See Echavarria v.
National Grange Mutual Ins. Co., 275 Conn. 408, 419,
880 A.2d 882 (2005).
B
In light of the general verdict in this case,15 we must
now address the possibility that the jury found that
Burnaska had apparent authority to enter into a con-
tract. At trial, the court expressly instructed the jury
that it could find that a contract had been formed if
Burnaska had either express or apparent authority.16
On appeal, the defendants argue that principles of
municipal law do not allow for a claim of apparent
authority. We agree.
Under municipal law, the plaintiff is charged with
constructive knowledge of the extent and limitations
of the powers of municipal officers. Fennell v. Hartford,
supra, 238 Conn. 814. Thus, the plaintiff was charged
with the knowledge that the town council held the
power to contract on behalf of the town. The law also
charged the plaintiff with the knowledge that the first
selectman did not have such authority and was thus,
limited to making recommendations to the council.
‘‘Apparent authority is th[e] semblance of authority
which a principal, through his own acts or inadver-
tences, causes or allows third persons to believe his
agent possesses.’’ (Internal quotation marks omitted.)
Ackerman v. Sobol Family Partnership, LLP, 298 Conn.
495, 508, 4 A.3d 288 (2010). It logically follows that,
when charged with knowledge of a municipal officer’s
actual power, a party cannot then argue that they
believed the officer’s power to be something different.
We therefore conclude that claims of apparent authority
are inconsistent with established municipal law and
cannot logically form the basis of a valid municipal
contract. To the extent the jury’s general verdict was
based on apparent authority, we find it to be clearly
erroneous.
Although our state courts have not previously
rejected the doctrine of apparent authority in the munic-
ipal contract setting,17 we find broad support for the
proposition in federal and state law. It is a well estab-
lished principle in federal law that the United States
government cannot be held liable for claims of apparent
authority or estoppel. See Federal Crop Ins. Corp. v.
Merrill, 332 U.S. 380, 383, 68 S. Ct. 1, 92 L. Ed. 10 (1947)
(holding that ‘‘anyone entering into an arrangement
with the Government takes the risk of having accurately
ascertained that he who purports to act for the Govern-
ment stays within the bounds of his authority . . .
[a]nd this is so even though . . . the agent himself may
have been unaware of the limitations upon his author-
ity’’); United States v. Flemmi, 225 F.3d 78, 85 (1st Cir.
2000) (‘‘[a]s a general rule, doctrines such as estoppel
and apparent authority are not available to bind the
federal sovereign’’), cert. denied, 531 U.S. 1170, 121 S.
Ct. 1137, 148 L. Ed. 2d 1002 (2001); Ferguson v. Fed.
Deposit Ins. Corp., 164 F.3d 894, 898 (5th Cir.) (‘‘the
Government is not bound by the actions of agents acting
outside the scope of their authority’’), cert. denied, 528
U.S. 819, 120 S. Ct. 61, 145 L. Ed. 2d 53 (1999); Hachikian
v. Fed. Deposit Ins. Corp., 96 F.3d 502, 505–506 (1st
Cir. 1996) (‘‘apparent authority cannot serve as a means
of holding the federal sovereign to a contract’’); Thomas
v. Immigration & Naturalization Service, 35 F.3d 1332,
1338 (9th Cir. 1994) (‘‘[e]stoppel and apparent authority
normally will not substitute for actual authority to bind
the United States government’’).
Furthermore, many of our sister states have also
rejected claims of apparent authority in the context of
municipal contracts. See Dagastino v. Commissioner
of Correction, 52 Mass. App. 456, 458, 754 N.E.2d 150
(2001) (‘‘[i]n short, the doctrine of apparent authority
does not apply to the government, its agencies, or its
officials’’); Sinclair v. Bow, 125 N.H. 388, 391–92, 480
A.2d 173 (1984) (holding local governments as excluded
from application of doctrine of apparent authority);
Zanesville v. Mohawk Data Sciences Corp., 97 A.D.
2d 64, 66, 468 N.Y.S.2d 271 (1983) (‘‘[t]hose dealing with
officers or agents of municipal corporations must at
their peril see to it that such officers or agents are acting
within their authority . . . and they have no right to
presume the persons with who they are dealing are
acting within the line of their authority’’ [citation omit-
ted]); Casa DiMario, Inc. v. Richardson, 763 A.2d 607,
610 (R.I. 2000) (rejecting claim of apparent authority
on basis that ‘‘ ‘the authority of a public agent to bind
a municipality must be actual’ ’’); but see Wiggins v.
Barrett & Associates, Inc., 295 Or. 679, 692, 669 P.2d
1132 (1983) (allowing application of doctrines of appar-
ent authority and estoppel in municipal contracts).18 We
are persuaded by the broad support for this proposition.
The aforementioned applicable principle, as well as
a review of the well reasoned decisions of the federal
courts and the courts of our sister states, compel the
conclusion that a party charged with knowledge of a
government official’s actual authority cannot assert a
belief that the official’s authority was something
greater. We therefore conclude that the doctrine of
apparent authority is inapplicable in the context of a
municipal contract.
C
Lastly, we recognize that ‘‘a municipality may become
bound to an agreement, despite its agent’s lack of
authority, by a subsequent ratification of the
agreement.’’ Norwalk v. Board of Labor Relations,
supra, 206 Conn. 453. A municipality ratifies an other-
wise invalid contract when it later accepts the benefits
of the contract. Pepe v. New Britain, 203 Conn. 281,
294, 524 A.2d 629 (1987). We now consider whether the
record supports a finding that a contract was formed
by way of ratification.
In reviewing the record, we find no evidence that the
town council acted in any way that could reasonably
be interpreted as ratification of the agreement.19 The
town never accepted or received any benefit from the
purported agreement. Bellrock acknowledged at trial
that the plaintiff would build, own and operate the
tower itself. He also stated that the plaintiff would lease
the land directly from the fire department. Although
the plaintiff led efforts to obtain the special permit,
including defending an appeal in Superior Court, the
named permit applicant was the fire department. Thus,
the town would receive no tangible benefit from the
alleged agreement until the communications tower was
built and space was made available for its communica-
tions equipment. As the tower was never built, there
was no benefit received by the town and, therefore, no
basis to support a finding of ratification.
II
The defendants also claim on appeal that the court
erred in denying the motion to set aside the verdict with
respect to the count of negligent misrepresentation.
Specifically, the defendants claim that the jury’s verdict
in favor of the plaintiff on the claim of negligent misrep-
resentation was against the evidence because the plain-
tiff did not prove the existence of a false statement.
We agree.
‘‘Whether evidence supports a claim of fraudulent or
negligent misrepresentation is a question of fact. . . .
[Our Supreme Court] has long recognized liability for
negligent misrepresentation. . . . The governing prin-
ciples are set forth in . . . § 552 of the Restatement
Second of Torts [1977]: One who, in the course of his
business, profession or employment . . . supplies
false information for the guidance of others in their
business transactions, is subject to liability for pecuni-
ary loss caused to them by their justifiable reliance
upon the information, if he fails to exercise reasonable
care or competence in obtaining or communicating the
information. . . . [T]he plaintiff need not prove that
the representations made by the [defendants] were
promissory. It is sufficient . . . that the representa-
tions contained false information. . . . There must be
a justifiable reliance on the misrepresentation for a
plaintiff to recover damages.’’ (Citation omitted; empha-
sis in original; internal quotation marks omitted.) Mips
v. Becon, Inc., 70 Conn. App. 556, 558, 799 A.2d 1093
(2002).
At the conclusion of trial, the jury returned a verdict
in favor of the plaintiff on the count of negligent misrep-
resentation, but did not enter a separate award on that
count because the alleged damages were the same as
the claim for breach of contract. As a result, we must
determine whether the record supports the jury’s find-
ing of negligent misrepresentation by the defendants.
In denying the defendants’ motion to set aside the
verdict, the court stated that the jury’s verdict was prop-
erly supported by evidence that the town, through Bur-
naska, made a false statement when she stated that
it would place its communications equipment on the
plaintiff’s tower. The court cited Burnaska’s statement
to the Connecticut Siting Council, in which she stated
‘‘[i]f this tower application is approved, and it meets
the needs of the town, the town of Monroe will locate
its public safety communications on it.’’ The plaintiff
argued, and the court agreed, that because the town
did not ultimately decide to locate its equipment on the
plaintiff’s tower, this statement was false and conse-
quently could support a claim of negligent misrepresen-
tation.
This analysis incorrectly applies the legal standard,
however. The correct standard is whether Burnaska
knew, or should have known, her statements were
untrue at the time they were made. See Glazer v. Dress
Barn, Inc., 274 Conn. 33, 74 n.32, 873 A.2d 929 (2005)
(noting general rule that misrepresentation must relate
to existing or past fact); see also Barry v. Posi-Seal
International, Inc., 36 Conn. App. 1, 21, 647 A.2d 1031
(1994), remanded for further reconsideration, 235 Conn.
901, 664 A.2d 1124 (1995). It is not enough to simply
present evidence of a statement of present intention
that, in retrospect, did not come to fruition. Rather,
the plaintiff must present evidence that indicates the
statement was false when made.20
On our careful review of the record, we find no evi-
dence to support the claim that Burnaska knew, or had
reason to know, her statements were false at the time
she made them. First, her statements must be consid-
ered within the context of the surrounding facts and
circumstances. Bellrock testified that he would pursue
the permit, lease the land, build the tower, and then
earn income by renting out space to private cell phone
carriers. Bellrock wanted to avoid having to apply for
a permit through the Connecticut Siting Council and,
therefore, needed the town’s commitment to locate the
communication equipment on the tower. As the town
was interested in the plaintiff’s plan and was hopeful
it would receive zoning approval, it authorized Bur-
naska to send a letter to the zoning commission express-
ing its intention to locate on the tower. The town also
authorized Burnaska to express the town’s intention to
the fire department, who was the named applicant on
the special permit application. There is no evidence in
the record that even remotely suggests that Burnaska,
or any other town official, knew or should have known
these statements were not true at that time. In fact, all
of the evidence indicates that the town fully intended
to locate on the plaintiff’s tower. The town’s ad hoc
committee had recommended the fire department loca-
tion as a viable site for the tower. Burnaska and Nunn
testified that, at the time of the statements, they both
believed that the tower was the best possible solution
to the town’s safety communication problems. Further-
more, Nunn testified that in 2003, several years after
the statement was made, the town council was still
requesting updates on the status of the permit applica-
tion, indicating a continued interest in the plaintiff’s
plan. Nunn also testified that the town did not consider
alternative solutions until the winter of 2003 to 2004.
In conclusion, Burnaska’s statement constituted one
of present intention to act in the future. The town’s
later decision, based on new facts and circumstances,
to take action inconsistent with that intention does not
automatically render the original statement false. The
plaintiff was required to show evidence that indicated
Burnaska’s statements were knowingly false or could
have been found to be false through acts of reasonable
care. All of the evidence suggests that the statements
were truthful: the town was strongly interested in the
plaintiff’s proposal and made every effort to facilitate
the building of the communications tower. As a result,
we must conclude that the court abused its discretion
when it denied the defendants’ motion to set aside the
verdict on the claim of negligent misrepresentation.
As the record in this case is insufficient to support
a finding of breach of contract or negligent misrepresen-
tation, we must conclude that the court abused its dis-
cretion in denying the defendants’ motion to set aside
the verdict. In doing so, we recognize the tremendous
deference given to both the findings made by the trier
of fact, as well as the judgment of trial court. In this
case, however, even when we review the evidence in
the light most favorable to sustaining the verdict, the
plaintiff has not provided any evidence that could rea-
sonably support, through inference or otherwise, the
jury’s findings of a breach of contract or negligent mis-
representation by the defendants. Because the jury’s
findings were clearly erroneous, we therefore conclude
that the court abused its discretion in denying the defen-
dants’ motion to set aside the verdict.
The judgment is reversed and the case is remanded
with direction to grant the defendants’ motion to set
aside the verdict and to render judgment for the
defendants.
In this opinion the other judges concurred.
1
Andrew J. Nunn was the first selectman of the town from December,
2001, until 2007. The plaintiff, Bellsite Development, LLC, named Nunn as
a defendant in his official capacity only.
2
Karen Burnaska served as the town’s first selectman from December,
1995, until December, 2001.
3
At trial, Bellrock testified that ‘‘[w]hat I took from that was that rather
than [the town] incurring the cost and the risk, and part of the cost is hiring
someone like me to do the application, that I would step in their shoes, and
I would ground lease the property, and I would submit the application, and
I would take the risk of getting it approved.’’
4
At trial, Bellrock testified to the following:
‘‘[The plaintiff’s counsel]: It says there was a recent ruling of the U.S.
District Court—do you see that section?
‘‘[Bellrock]: Yes. Yup.
‘‘[The plaintiff’s counsel]: Jurisdiction over municipal public safety equip-
ment, including towers, remains under the municipal control of planning
and zoning; do you see that?
‘‘[Bellrock]: Yes . . . the [decision] clarified . . . that municipal towers
. . . did not have to go to the state siting council. . . .
‘‘[The plaintiff’s counsel]: And what is the significance of that? . . .
‘‘[Bellrock]: I would not have done a state siting council application.’’
5
In its memorandum of decision, the court stated that the record ‘‘estab-
lishes that the tower will be used for emergency communications by the
[Monroe Volunteer Fire Department] and, potentially, by the Monroe Police
Department.’’ (Emphasis added.) Hurley v. Monroe Planning & Zoning
Commission, supra, 36 Conn. L. Rptr. 599.
6
The jury was instructed by the court that if they were to award damages
under counts one or two, then they could not also award separate damages
on count three. Accordingly, although the jury found for the plaintiff on
count three, no separate damages were awarded.
7
During the trial, the plaintiff testified that he did not have an express
agreement with the town council.
‘‘[The defendants’ counsel]: So at that point, if not earlier, you knew that
there had to be some sort of formal process before the police could actually—
or the town, on behalf of the police, could actually enter into a contract
with you, right?
‘‘[Bellrock]: No.
‘‘[The defendants’ counsel]: Okay. But, in fact, as of September of—as of
2001, none of the steps that the town planner describes had taken place,
had they?
‘‘[Bellrock]: They’ve never taken place.’’
8
The plaintiff’s counsel stated, at closing argument: ‘‘Now, the town says
that there was no agreement. There was an agreement. We have evidence
in the record of an oral agreement between Karen Burnaska and Bill Bellrock
with regard to this.’’
9
The town council held a meeting on February 26, 2001, to discuss poten-
tial locations for the police communication equipment. At trial, Bellrock
testified that at that time he ‘‘still didn’t have a contract with them or a
consulting contract with them.’’ Bellrock also testified that the agreement
was reached after a crane test, scheduled for April 5th and 6th of 2001.
10
By September, 2001, the zoning commission held a hearing on the special
permit application to build the communications tower at the fire department.
11
Gottesdiener testified that he was a certified general appraiser and
licensed real estate agent and broker. He testified specifically as to the
appraised value of the plaintiff’s proposed communications tower and the
potential revenue stream that could have been derived from it.
12
On direct examination, the following exchange took place:
‘‘[The plaintiff’s counsel]: But if you said the town will go on the tower,
that would be different?
‘‘[Burnaska]: Well, I had no authority to say the town would go on the
tower.
‘‘[The plaintiff’s counsel]: All right.
‘‘[Burnaska]: I could not make that statement on my own, and there was
a lot of other information that was needed before a statement like that
could be made.’’
13
At trial, the following exchange took place:
‘‘[The defendants’ counsel]: Do you have a specific recollection of not
promising, contracting, assuring [Bellrock] that the town would locate con-
tractually with an intent to be bound, locate on a tower that he was going
to build?
‘‘[Burnaska]: I never said that and it never happened.’’
14
‘‘The existence of an implied agency is essentially a question of fact.
. . . The proof is generally found in the acts and conduct of the parties.’’
(Citation omitted.) Cleaveland v. Gabriel, 149 Conn. 388, 394, 180 A.2d
749 (1962).
15
The jury in this case rendered a general verdict and was not provided
any interrogatories. Typically in situations such as this we would apply the
general verdict rule. The rule states that ‘‘if a jury renders a general verdict
for one party, and no party requests interrogatories, an appellate court will
presume that the jury found every issue in favor of the prevailing party.’’
(Internal quotation marks omitted.) Fabrizio v. Glaser, 38 Conn. App. 458,
461, 661 A.2d 126 (1995) aff’d, 237 Conn. 25, 675 A.2d 844 (1996). In this
case, however, the trial court stated in its memorandum of decision that
the defendants did, in fact, request interrogatories but ‘‘ultimately did not
press this request.’’ The defendants stated in their appellate brief that the
court refused to allow interrogatories unless both parties could reach an
agreement on the specific language that would be presented to the jury.
Although the issue has not been raised on appeal, we recognize the inherent
unfairness in imposing the general verdict rule on a party that has requested,
but was denied, an opportunity to submit interrogatories to the jury. See
Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993) (‘‘[a] party desiring
to avoid the effects of the general verdict rule may elicit the specific grounds
for the verdict by submitting interrogatories to the jury’’).
16
The court provided, in part, the following jury instruction on the issue
of apparent authority: ‘‘Now, in order for you to find the defendant liable
on this theory, you must find that the defendant had either express authority,
as I previously instructed you, or apparent authority, and now I want to tell
you about apparent authority. . . .
‘‘There is a distinction, however, between the concept of agency and the
separate question or consideration as to whether at the times pertinent to
the plaintiff’s complaint, Karen Burnaska, as an agent of the Town of Monroe,
was acting with the authority required to bind her principal, either by virtue
of apparent or actual authority—or express—I don’t mean to switch language
on you—either by virtue of apparent or express authority.’’
17
Our Supreme Court did acknowledge the limitation of apparent authority
in the municipal context in Norwalk v. Board of Labor Relations, supra,
206 Conn. 452 (‘‘[t]he parameters of [the apparent authority] doctrine . . .
are sharply circumscribed when the principal is a municipal corporation’’).
Our Supreme Court also dealt with an apparent authority claim in John J.
Brennan Construction Corporation Inc. v. Shelton, 187 Conn. 695, 708–710,
448 A.2d 180 (1982), but chose to resolve the case on other grounds. In that
case, the court rejected the apparent authority claim on the grounds that
the trial court made no such specific finding and neither party had requested
an articulation on the matter. Id.
18
The Supreme Court of Oregon in Wiggins stated the reason for allowing
the apparent authority or estoppel doctrines in the municipal context is to
‘‘to prevent unjust enrichment and to accord fairness to those who bargain
with the agents of municipalities for the promises of the municipalities.’’
Wiggins v. Barrett & Associates, Inc., supra, 295 Or. 692. The court in
Wiggins cited several Oregon cases going back to 1903, where the doctrines
were applied to government parties. Id., 693. In contrast, our state does not
have such a history of allowing the application of these doctrines in munici-
pal cases. As a result, we find the reasoning in Wiggins to be particularly
unpersuasive.
19
We note that the trial court explicitly found that the plaintiff presented
‘‘no evidence of formal ratification of the agreement between the parties
by the town council.’’
20
This evidence may include subsequent conduct indicating the declarant
knew or should have known the falsity of the statement. Glazer v. Dress
Barn, Inc., supra, 274 Conn. 76.