Connecticut Appellate Decisions

CHERYL TERRY ENTERPRISES, LTD. v. HARTFORD, 270 Conn. 619
(2004) 854 A.2d 1066 CHERYL TERRY ENTERPRISES, LTD. v.
CITY OF HARTFORD (SC 17067) Supreme Court of Connecticut

Sullivan, C.J., and Borden, Norcott, Katz, Palmer,
Vertefeuille and Zarella, Js.[fn1]

[fn1] This case was argued on May 19, 2004, before a panel
of this court consisting of Chief Justice Sullivan and
Justices Norcott, Katz, Vertefeuille and Zarella.
Thereafter, the court, pursuant to Practice Book §
70-7 (b), sua sponte, ordered that the case be considered
en banc. Justices Borden and Palmer were added to the
panel, and they have read the record and the briefs, and
have listened to the tape recording of the original oral
argument.

Syllabus

The plaintiff bus company, which had submitted the lowest
bid on a school transportation contract for the defendant
city sought, inter alia, to enjoin the defendant from
awarding the contract to any other bidder. The plaintiff
also sought damages for violation of its equal protection
rights and the Connecticut Antitrust Act (§ 35-24 et
seq.) (act). After a jury trial, the court directed a
verdict for the defendant on the equal protection claim
and the jury awarded the plaintiff $500,000 on its
antitrust claim. Subsequently, the trial court granted the
defendant’s motion to set aside the verdict, finding that
pursuant to this court’s decision in Lawrence Brunoli,
Inc. v. Branford ( 247 Conn. 407), the plaintiff lacked
standing to bring an antitrust claim against the
defendant. Thereafter, the plaintiff appealed from the
judgment of the trial court setting aside the verdict on
the antitrust claim, and this court dismissed the appeal,
concluding that the plaintiff had not appealed from a
final judgment because its claim for permanent injunctive
relief had not been resolved. The case thereafter was
reclaimed to the trial list and the trial court denied the
plaintiff’s request for a mandatory injunction to prevent
the defendant from awarding the contract to another
bidder, and the plaintiff again appealed. Held:

1. The trial court improperly granted the defendant’s motion
to set aside the verdict on the plaintiff’s antitrust
claim on the ground that Lawrence Brunoli, Inc., precludes
a plaintiff from pursuing a statutory antitrust claim for
damages against a municipality arising out of a municipal
bidding process, that case having been limited to actions
that were based on common-law breach of contract claims or
the municipal bidding statutes, and not to actions, which,
as here, seek relief under the act; pursuant to the act,
the legislature conferred standing to a broad class of
persons, including unsuccessful bidders in a municipal
bidding process, and the term “person,” as used to identify
an individual or Page 620 entity that may bring an
action or be held liable under the act, was defined
broadly to include a municipality.

2. The trial court abused its discretion in setting aside
the verdict on the ground that the plaintiff had failed to
prove its claim of damages for lost profits to a
reasonable degree of certainty, a review of the record
having revealed that the jury’s award of damages was
reasonably supported by the evidence; on the basis of the
evidence presented and any assumptions reasonably drawn
therefrom, the jury reasonably could have concluded that
in the absence of the defendant’s antitrust violation, the
plaintiff would have performed the school transportation
contract for the amount of its bid of approximately $5.9
million, the jury was entitled to credit the testimony of
T, the plaintiff’s president, who was competent to testify
as to the methods she used in projecting an 8 to 10
percent profit in the plaintiff’s bid, and the jury’s
damage award of $500,000 was well within that anticipated
profit range.

3. This court, having concluded that the trial court’s
judgment setting aside the verdict on the antitrust claim
was improper, did not consider the plaintiff’s claim that
the trial court improperly directed a verdict for the
defendant on the equal protection claim because the
plaintiff could recover just damages only once.

4. The trial court did not abuse its discretion in denying
the plaintiff’s request for a mandatory injunction
requiring the defendant to enter into a prospective five
year school transportation contract with the plaintiff;
the present case did not present the compelling
circumstances required for the issuance of a mandatory
injunction, the plaintiff had an adequate remedy under the
act in its action for damages against the defendant, and
the granting of the plaintiff’s request for an injunction
would lead to the bizarre result of having two contracts
in effect for the same project, the defendant already
having entered into a subsequent five year contract with the
bidder that had been awarded the contract.

(Two justices concurring and dissenting in one opinion).

Argued May 19, 2004

Officially released August 31, 2004

Procedural History

Action in four counts to enjoin the defendant from, inter
alia, awarding the contract for the transportation of
schoolchildren within the city of Hartford to any bidder
other than the plaintiff, and for other relief, brought to
the Superior Court in the judicial district of New London,
where the court, Hurley, J., granted in part the
defendant’s motion to dismiss as to one count; thereafter,
the case was tried to the jury before Corradino, J.;
verdict in part for the plaintiff; subsequently, Page 621
the court, Corradino, J., granted the defendant’s motion to
set aside the verdict and rendered judgment thereon, and
ordered that Laidlaw Transit, Inc., be joined as a
necessary party within thirty days; the plaintiff
thereafter appealed from the judgment setting aside the
verdict, and this court rendered judgment dismissing the
appeal for lack of final judgment; thereafter, the case was
reclaimed to the trial list and was tried to the court,
Corradino, J., on the request for permanent injunctive
relief; judgment denying the injunctive relief, from which
the plaintiff appealed. Reversed in part; judgment
directed.

Ralph J. Monaco, with whom was Thomas J. Londregan, for the
appellant (plaintiff).

Ann F. Bird, assistant corporation counsel, with whom, on
the brief, was Alexander Aponte, corporation counsel, for
the appellee (defendant).

Richard D. O’Connor, with whom, on the brief, was George J.
Kelly, Jr., for the appellee (Laidlaw Transit, Inc.).

Opinion

KATZ, J.

In Cheryl Terry Enterprises, Ltd. v. Hartford, 262 Conn.
240, 242, 811 A.2d 1272 (2002), the plaintiff, Cheryl Terry
Enterprises, Ltd., appealed from the judgment of the trial
court setting aside the jury’s verdict for the plaintiff on
its antitrust claim against the defendant, the city of
Hartford. We concluded therein that the plaintiff had not
appealed from a final judgment because the trial court had
not yet resolved the plaintiff’s remaining claim for
permanent injunctive relief. The case thereafter was
reclaimed to the trial list and, following additional
hearings and briefing from the parties, the trial court
denied the plaintiff’s request for a mandatory injunction.
Thereafter, the plaintiff appealed from the judgment of the
trial court to the Page 622 Appellate Court, and we
transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book §
65-1.

In the present appeal, the plaintiff claims that the trial
court improperly: (1) set aside the jury’s verdict on its
antitrust claim on the ground that, under our decision in
Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 722 A.2d
271 (1999), the plaintiff, an unsuccessful lowest bidder in
a municipal bidding process, lacked standing to bring an
antitrust claim against the defendant; (2) determined that
it could effectively repeal Connecticut’s antitrust statute
in cases involving municipal bidding; (3) set aside the
jury’s verdict on the plaintiff’s antitrust claim on the
ground that the plaintiff had failed to present sufficient
proof of damages; (4) directed a verdict for the defendant
on the plaintiff’s equal protection claims; and (5) failed
to award the plaintiff mandatory injunctive relief.

We conclude that the trial court improperly set aside the
verdict on the ground that the plaintiff lacked standing to
bring an antitrust claim for damages against a municipality
arising out of the municipal bidding process. We conclude
further that the trial court improperly set aside the
verdict on the ground that the plaintiff had not proved its
damages to a reasonable certainty. In light of that
conclusion, we need not address the plaintiff’s claim that
the trial court improperly granted the defendant’s motion
for a directed verdict on its equal protection claims.
Finally, we conclude that the trial court properly denied
the plaintiff’s request for injunctive relief. Accordingly,
we reverse in part the judgment of the trial court.

The relevant facts and procedural history are set forth in
our opinion in Cheryl Terry Enterprises, Ltd. v. Hartford,
supra, 262 Conn. 240. “The plaintiff is a school bus
company based in Hartford. The president of the Page 623
company, Cheryl Terry, has worked in the school
transportation business for more than thirty years. The
plaintiff was one of three vendors who had submitted sealed
bids to the defendant in response to an invitation to bid
for a proposed five year contract to provide bus
transportation services for the Hartford public schools,
commencing with the 1998-1999 school year. The plaintiff’s
bid was lower than either of the other vendors, Laidlaw
Transit, Inc. (Laidlaw), and Dattco, Inc. (Dattco). Despite
being the highest bidder, Laidlaw was awarded the five year
contract.

“After Laidlaw was awarded the contract, the plaintiff
brought the action underlying this appeal, claiming
violations of its equal protection rights and state
antitrust law.[fn2] . . . The plaintiff also claimed that,
by awarding the contract to an entity other than the lowest
responsible bidder, the defendant violated § 2-548 of
the Hartford municipal code.[fn3] The plaintiff’s complaint
alleged a violation of the Connecticut Antitrust Act (act);
General Statutes § 35-24 et seq.; in that it was not
awarded the contract due to a conspiratorial agreement
between a [labor] union and the defendant, with the purpose
of obtaining a union contract.[fn4] The plaintiff sought
temporary Page 624 and permanent injunctive relief
relating to the contract, monetary damages and equitable
relief. At trial, the defendant acknowledged that the
plaintiff’s bid was the lowest submitted, but it maintained
that the plaintiff was not awarded the contract because the
defendant had been informed that the plaintiff had a
pending labor case with the National Labor Relations Board,
and because its bid did not conform to the specifications
of the bid request. Terry testified, however, that the
plaintiff had `fully complied with each and every material
term of [the] defendant’s bid specifications. . . .’

“Thereafter, the trial court held a hearing on the
plaintiff’s motion for a temporary restraining order. On
August 4, 1998, subsequent to the completion of the
hearing, but prior to the issuance of the trial court’s
decision, the defendant executed its contract with Laidlaw.
The trial court issued a decision denying the plaintiff’s
motion for a temporary restraining order on August 7, 1998.

“After a trial on the plaintiff’s equal protection and
state antitrust claims, the trial court granted the
defendant’s motion for a directed verdict as to the
plaintiff’s equal protection claims, and submitted to the
jury only the claim alleging an antitrust violation.
Ultimately, the jury returned a verdict for the plaintiff
in the amount of $500,000 on that claim. The defendant then
filed a motion to set aside the verdict. The trial court
granted this motion and, thereafter, set aside the verdict
for the plaintiff. The trial court reserved the question as
to whether Laidlaw was a necessary party on the injunction
portion of the claim and noted that it would hold a hearing
on the plaintiff’s request for permanent injunctive relief
ab initio if it were to decide that Laidlaw was indeed a
necessary party. The court ultimately determined that
Laidlaw was a necessary party and that it should be joined
as a party within thirty days of that order. Prior to a
resolution of the claim for permanent Page 625 injunctive
relief, [however] the plaintiff appealed from the judgment
of the trial court setting aside the verdict on its
antitrust claim.”[fn5] Cheryl Terry Enterprises, Ltd. v.
Hartford, supra, 262 Conn. 243-45.

As we noted previously, we dismissed the plaintiff’s first
appeal, concluding that the plaintiff had not appealed from
a final judgment because the claim for injunctive relief
had not been determined. Id., 242. Due to the trial court’s
subsequent resolution of the plaintiff’s remaining claim
for injunctive relief, we now address the merits of the
plaintiff’s claims.

I

We address the plaintiff’s first two claims together
because they are interrelated. The plaintiff claims that
the trial court improperly granted the defendant’s motion
to set aside the verdict on the ground that Lawrence
Brunoli, Inc. v. Branford, supra, 247 Conn. 407, precludes
a plaintiff from pursuing a statutory antitrust claim for
damages against a municipality arising out of a municipal
bidding process. The defendant contends that the trial
court properly found that, under Lawrence Brunoli, Inc.,
the plaintiff lacked standing to pursue its antitrust
claim, and, therefore, that the trial court lacked subject
matter jurisdiction. We agree with the plaintiff.

The following additional facts are relevant to our
resolution of this claim. Prior to trial, the plaintiff
was Page 626 warned by the trial court that it would allow
the anti-trust claim to go to the jury because the court
was unprepared to rule on its ultimate viability, but that
the court would “closely examine that issue if the jury
were to return a verdict in the plaintiff’s favor.”
Ultimately, the jury did return a verdict in the
plaintiff’s favor, and awarded the plaintiff $500,000 in
damages. The defendant filed a motion to set aside the
verdict, claiming, inter alia, that the court lacked subject
matter jurisdiction to award damages on the antitrust
claim.[fn6] The trial court agreed, and granted the
defendant’s motion to set aside the verdict.

“The trial court’s subject matter jurisdiction is a matter
of law and, therefore, our review is plenary. If a party is
found to lack standing, the court is without subject matter
jurisdiction to determine the cause. . . . A determination
regarding a trial court’s subject matter jurisdiction is a
question of law.” Cadle Co. v. D’Addario, 268 Conn. 441,
446, 844 A.2d 836 (2004).

In its memorandum of decision on the defendant’s motion to
set aside the verdict, the trial court analyzed the act and
determined that “it seems clear that a municipality can be
sued under [the] act.” We agree. The act provides, inter
alia, that “[e]very contract, combination, or conspiracy in
restraint of any part of trade or commerce is unlawful.”
General Statutes § 35-26. For purposes Page 627 of
the act, “`[p]erson'” is defined broadly as “any
individual, proprietorship, corporation, limited liability
company, firm, partnership, incorporated and unincorporated
association, or any other legal or commercial entity. . .
.” General Statutes § 35-25 (b). We consistently
have stated that a municipality is a legal entity that can
sue and be sued. See, e.g., Murphy v. Ives, 151 Conn. 259,
264, 196 A.2d 596 (1963) (“[t]owns have no sovereign
immunity, and are capable of suing and being sued . . . in
any action” [internal quotation marks omitted]). Therefore,
the plain language of the statutory definition of “person”
is broad enough to include municipalities, such as the
defendant in the present case.

This broad definition of “person” is then utilized by the
legislature to define both who may be liable for
anticompetitive behavior, and who has standing to recover
damages for such behavior. In regard to standing, General
Statutes § 35-35 provides in relevant part that “any
person . . . injured in its business or property by any
violation of the provisions of this chapter shall recover
treble damages, together with a reasonable attorney’s fee
and costs.” See also General Statutes § 35-34 (“any
person . . . may sue for injunctive relief, both temporary
or permanent, against threatened loss or damage to its
property or business by any violation of this chapter”).

Conversely, the legislature also has used that same broad
definition of “person” to define any individual or entity
that may be liable under the act for anticompetitive
behavior. See, e.g., General Statutes § 35-38
(“[a]ny . . . person who has been held to have violated any
of the provisions of this chapter shall forfeit and pay to
the state a civil penalty of not more than two hundred
fifty thousand dollars”); General Statutes § 35-39
(“[a] corporation, association, firm, partnership,
proprietorship, or any other legal or commercial entity is
liable under this chapter for the acts of its . . .
agents”). Page 628 Indeed, the only express limitation on
the act’s applicability is set forth in General Statutes
§ 35-31,[fn7] which contains four classes of
exceptions from liability under the act. None of these
exceptions is applicable to the facts of the present case.
See also Mazzola v. Southern New England Telephone Co., 169
Conn. 344, 355, 363 A.2d 170 (1975) (“[§ 35-31]
exceptions are to be strictly construed”). Thus, although
the legislature has excluded certain organizations and
activities from liability under the act, it has not
excluded municipalities, or the municipal bidding process,
from its provisions.[fn8] Page 629 See Doucette v. Pomes,
247 Conn. 442, 457, 724 A.2d 481 (1999) (“[u]nless there is
evidence to the contrary, statutory itemization indicates
that the legislature intended [a] list to be exclusive”
[internal quotation marks omitted]). Although the defendant
may be correct that there are significant public policy
reasons to exclude the municipal bidding process from the
act, that is a change that must be made by the legislature,
not this court. See State v. Hanson, 210 Conn. 519, 529,
556 A.2d 1007 (1989) (“It is axiomatic that the court itself
cannot rewrite a statute to accomplish a particular result.
That is the function of the legislature.” [Internal
quotation marks omitted.]); see also State v. Luurtsema,
262 Conn. 179, 202, 811 A.2d 223 (2002) (rejecting argument
imputing temporal requirement to restraint element of
kidnapping statute). In sum, we conclude that the trial
court properly determined that a municipality can be sued
for violations of the act.[fn9]

Despite having reached this conclusion, however, the trial
court granted the defendant’s motion to set aside Page
630 the judgment, determining that in light of our decision
in Lawrence Brunoli, Inc. v. Branford, supra, 247 Conn.
416, the act was “effectively repealed” in actions arising
from the municipal bidding process because “[t]o allow
antitrust damages here would be repugnant to the public
benefit purposes of the municipal competitive bidding laws
and would not therefore comport with the similar objectives
of the antitrust laws to benefit the public, not
competitors, and lead to results the legislature could not
have intended.” We disagree.

To begin with, we already have concluded that the trial
court properly determined that the definition of “persons”
subject to liability under the act is broad enough to
include municipalities. Once the trial court made this
determination, it should have denied the defendant’s motion
to set aside the verdict, and declined to apply the policy
reasons set forth in Lawrence Brunoli, Inc., in order to
alter the plain language of the act. State v. Hanson,
supra, 210 Conn. 529.

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