Chief Information Officer v. Computers Plus Center, Inc.
CourtSupreme Court of Connecticut
Date FiledSeptember 3, 2013
DocketSC19029, SC19030, SC19031
JudgeNorcott; Palmer; Zarella; Eveleigh; Robinson
StatusPublished
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Full Opinion
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CHIEF INFORMATION OFFICER
ET AL. v. COMPUTERS PLUS
CENTER, INC., ET AL.
(SC 19029)
(SC 19030)
(SC 19031)
Norcott, Palmer, Zarella, Eveleigh and Robinson, Js.
Argued January 3—officially released September 3, 2013
Robert J. Deichert, assistant attorney general, with
whom were Peter R. Huntsman, assistant attorney gen-
eral, and, on the brief, George Jepsen, attorney general,
and Gregory T. D’Auria, solicitor general, for the appel-
lants-appellees (plaintiffs).
Brett J. Boskiewicz and James A. Wade, for the appel-
lees-appellants (defendants).
Opinion
NORCOTT, J. The principal issue in this appeal is
whether, by bringing a cause of action against a private
party, the state of Connecticut waives its sovereign
immunity for all counterclaims against it, including
those seeking monetary damages. The plaintiffs, the
Department of Information Technology and its Chief
Information Officer,1 appeal2 from the judgment of the
trial court, rendered after a jury trial, awarding the
named defendant, Computers Plus Center, Inc.,3 $18.3
million on a counterclaim alleging that the department
had violated its right to procedural due process. On
appeal, the department claims, inter alia, that the trial
court: (1) should not have allowed the defendant to
proceed with any counterclaim seeking monetary dam-
ages because sovereign immunity deprived the court
of subject matter jurisdiction over such counterclaims;
and (2) made several improper evidentiary rulings dur-
ing the trial. The defendant cross appeals, claiming that
the trial court improperly: (1) reduced the amount of
the jury’s verdict in its favor from $18.3 million to $1.83
million; and (2) determined that the doctrine of absolute
immunity bars common-law defamation claims against
government officials. We conclude that the trial court
improperly determined that the department had waived
the state’s sovereign immunity regarding the defen-
dant’s counterclaims and, accordingly, reverse the judg-
ment of the trial court in favor of the defendant on
the procedural due process counterclaim. We further
conclude that the trial court’s evidentiary rulings were
not improper and, therefore, affirm the judgment of the
trial court in all other respects. Finally, because we
conclude that the trial court lacked subject matter juris-
diction over the defendant’s counterclaims, we dismiss
the defendant’s cross appeals as moot.
The record reveals the following facts, which the jury
reasonably could have found, and relevant procedural
history. The present case arises from disputes between
the department and the defendant, a computer equip-
ment supplier, in connection with two contracts under
which the defendant had agreed to provide computer
servers for the department and the Department of
Transportation (server contracts), and a contract under
which the defendant had agreed to provide personal
computers to state agencies on an as needed basis (com-
puter contract). After the memory in the servers that
the defendant had supplied under the server contracts
malfunctioned in the summer of 2002, the department
began to suspect that the defendant deliberately sup-
plied equipment that failed to comply with the relevant
contract specifications, despite the defendant’s prompt
remediation of the memory malfunctions.
In August, 2002, the department determined that the
defendant was not a ‘‘responsible’’ bidder as that term
is defined in General Statutes § 4a-59 (a),4 rejected its
pending invitation to the defendant seeking a bid on a
contract to provide an additional computer server for
the Department of Education, and requested that the
defendant certify that all of the equipment supplied to
the state by the defendant over the previous four years
complied with the relevant contract specifications.
Because the defendant was not able to complete its
review of all of the contract awards and purchase orders
from the requested time period in the time frame that
the department had set forth, however, it simply replied
that it believed that it ‘‘ha[d] always . . . adhered to
all the terms and conditions of each contract award’’
and requested the department, ‘‘[s]hould [it] find any
other violations other than [the server memory viola-
tion],’’ to ‘‘bring them to [the defendant’s] attention and
[it would] take immediate action.’’ (Emphasis in
original.)
Unsatisfied with the defendant’s response, the
department performed a physical audit of all of the
computers that the defendant had supplied under the
computer contract. In conducting this audit, the depart-
ment discovered that many of those computers con-
tained only an integrated network interface card while,
in the department’s view, the contract specifications
required both an integrated and a stand alone network
interface card. On the basis of its findings during its
audit, in December, 2002, the department notified the
auditor of public accounts and the state comptroller of
‘‘apparently pervasive contract irregularities’’ with the
defendant, and also requested that the Commissioner
of Public Safety ‘‘conduct a more thorough review’’ of
the defendant’s activities in relation to the computer
contract.
Shortly thereafter, the department terminated the
computer contract with the defendant, citing, as rea-
sons for the contract termination, that it was a financial
burden to the state and that the purchasing process
had not achieved the expected cost savings.5 Over the
following several months, the department began refus-
ing to award contracts to the defendant, even when it
was the lowest bidder and, in some cases, refused even
to acknowledge the defendant’s bids. When the defen-
dant asked the department to clarify its status as a
bidder during this time period, the department indicated
that the defendant was ‘‘not prohibited from
responding’’ to invitations to bid, but emphasized that
the standard bid terms and conditions indicated that
‘‘[a]ward[s] will be made to the lowest responsible quali-
fied bidder.’’ In addition, in March, 2003, the department
issued a notice to ‘‘[a]ll [u]sing [s]tate [a]gencies’’ indi-
cating that it had discovered ‘‘certain performance fail-
ures’’ because the defendant had deviated from certain
contract specifications, ‘‘charged the [s]tate for parts
ordered but not delivered . . . and failed to properly
credit the [s]tate for substitute parts.’’ The department
further stated, in that notice, that the ‘‘substitution of
generic parts . . . also occurred on a prior contract
involving servers,’’ and the state, therefore, ‘‘recom-
mend[ed] that [the agencies] exercise appropriate cau-
tion if [they] contemplate[d] purchasing from [the
defendant] under [their] direct purchasing authority.’’
Around the same time, state police officers obtained
and executed search warrants at the defendant’s office
and the personal residence of Gina Kolb, the defen-
dant’s president.6 On the basis of evidence obtained
during those searches, and the department’s internal
audit and investigations, in April, 2004, the department
decided to bring the present litigation against the defen-
dant. The department held a press conference with the
attorney general and the chief state’s attorney announc-
ing the commencement of this civil action against the
defendant and issued a press release to similar effect.
This announcement received significant media atten-
tion, and the defendant’s other customers thereafter
began cancelling their contracts with the defendant.
Given that the department also declined to award the
defendant bids on new contracts during this time
period, the defendant was unable to continue operating
its business, and ultimately ceased operations in 2005.
On April 8, 2004, the department filed this action
against the defendant,7 alleging breach of contract and
fraud claims premised on allegations that the defendant
intentionally provided computers that did not comply
with the specifications set forth in the computer con-
tract. The department also asserted claims for breach
of contract and fraud premised on allegations that the
defendant provided the state with computer servers
that contained generic, after market memory when the
server contracts required factory- installed memory.8
The defendant filed an amended counterclaim in
response, wherein it alleged that the department: (1)
took the defendant’s property, namely its business
expectancy in the computer contract, without just com-
pensation in violation of article first, § 11, of the Con-
necticut constitution (takings counterclaim); (2)
deprived the defendant of its liberty interest to pursue
its business without due process of law in violation
of article first, § 10, of the Connecticut constitution
(procedural due process counterclaim); and (3)
defamed the defendant by publicly suggesting that it
had engaged in improper conduct in its dealings with
the department (defamation counterclaim), and sought,
inter alia,9 monetary damages and a jury trial. The
department then moved to dismiss the defendant’s tak-
ings and procedural due process counterclaims on the
basis of the state’s sovereign immunity, and the defama-
tion counterclaim on the basis of absolute immunity.
On November 27, 2007, the trial court, Shortall, J.,
denied the department’s motion to dismiss both the
takings and the procedural due process counterclaims,
concluding that, by asserting claims against the defen-
dant, the department had waived the state’s sovereign
immunity for any related counterclaims. Judge Shortall
cited State v. Kilburn, 81 Conn. 9, 12, 69 A. 1028 (1908),
and noted that, ‘‘[f]or almost 100 years, it has been the
law that, when the state sues a party, it ‘open[s] the
door to any defense or cross complaint germane to the
matter in controversy.’ ’’ Judge Shortall further stated
that, ‘‘[t]his rule was announced in Kilburn, an equitable
action, but no reason appears why it should be limited
to suits in equity and not actions at law, and other
courts have not so limited it.’’10 Because Judge Shortall
determined that the defendant’s constitutional counter-
claims arose out of the same controversy giving rise
to the department’s action against the defendant, he
concluded that the department had waived the state’s
sovereign immunity regarding those claims. Judge
Shortall also denied the department’s motion to dismiss,
on the basis of absolute immunity, the defendant’s defa-
mation counterclaim because the majority of the alleg-
edly false statements made by the department were
alleged to have been made outside of judicial proceed-
ings and, therefore, were not entitled to absolute
immunity.
Thereafter, the defendant filed a second amended
counterclaim, wherein it reiterated its takings and pro-
cedural due process counterclaims, recharacterized its
defamation counterclaim as one for trade libel, and
added claims that the department: (1) breached the
computer contract by terminating it early when the
defendant was ready, willing and able to perform; (2)
breached the covenant of good faith and fair dealing by
terminating the computer contract early and engaging in
conduct that impugned the defendant’s integrity and
reputation; and (3) violated the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110 et seq., by terminating the computer contract early
and impugning the defendant’s integrity and reputa-
tion.11 On May 13, 2008, the department moved to strike
the defendant’s second amended counterclaim in its
entirety.12 On September 16, 2008, the trial court,
Shortall, J., granted the department’s motion to strike
the defendant’s second amended counterclaim with
respect to both the takings counterclaim and the
CUTPA counterclaim, but denied the motion regarding
the remainder of the claims presented therein.13
The defendant then filed a fourth amended counter-
claim,14 removing its takings and CUTPA counterclaims,
and leaving its procedural due process, trade libel,
breach of contract, and breach of good faith and fair
dealing counterclaims. Thereafter, this case was trans-
ferred to the complex litigation docket in the judicial
district of Waterbury, where the department’s claims
alleging breach of contract and fraud, along with the
defendant’s counterclaims alleging deprivation of pro-
cedural due process, trade libel, breach of contract, and
breach of the covenant of good faith and fair dealing,
were tried before the jury. After the presentation of
evidence, during the charging conference, the trial
court, Stevens, J.,15 granted the department’s motion
for a directed verdict as to the defendant’s trade libel
counterclaim, concluding that the allegedly defamatory
statements were made by agency heads of the executive
branch in the performance of their official duties and,
therefore, protected under the doctrine of absolute
immunity.
The remainder of the department’s claims and the
defendant’s counterclaims were then submitted to the
jury. The jury found in favor of the defendant on all of
the department’s claims except for the claim that the
defendant had breached the server contract regarding
the servers that it had agreed to provide for the Depart-
ment of Transportation. Although the jury found that
the defendant had breached the Department of Trans-
portation server contract by failing to provide the con-
tractually required factory installed, Dell certified
memory in the computer servers, however, it did not
award the department any damages on that claim.
Regarding the defendant’s counterclaims, the jury
found that the department had violated the defendant’s
liberty interest in pursuing its business in violation of
the defendant’s procedural due process rights by effec-
tively disqualifying it from bidding on state contracts
without providing the opportunity to contest the
removal of its ‘‘responsible bidder’’ status. The jury then
awarded $18.3 million in damages, the full value of the
defendant’s business, on the procedural due process
counterclaim.16 The jury also found that the department
had breached the covenant of good faith and fair dealing
‘‘by refusing to meet [with the defendant] to discuss any
alleged issues or concerns . . . about [the defendant’s]
performance of the [computer] contract’’ and by ‘‘engag-
ing in a pattern of conduct that harmed [the defendant’s]
reputation and impugned [the defendant’s] integrity,’’
but did not award the defendant any damages on that
counterclaim. Finally, the jury found in favor of the
department on the defendant’s breach of contract coun-
terclaim, determining that the department had not
breached the computer contract by terminating it early.
Thereafter, the department made several motions to
set aside the verdict, including a motion to set aside
the verdict regarding all of the department’s claims on
which the jury had found in favor of the defendant
and regarding the defendant’s procedural due process
counterclaim, arguing that the trial court had improp-
erly: (1) allowed the presentation of prejudicial and
irrelevant evidence to the jury; and (2) precluded the
department from presenting evidence that Kolb applied
for and accepted accelerated rehabilitation as a means
of resolving the criminal charges against her. The trial
court denied these motions.
The department also made a number of other post-
verdict motions regarding the defendant’s procedural
due process counterclaim, including: (1) a renewed
motion to dismiss, arguing, inter alia, that sovereign
immunity deprived the court of subject matter jurisdic-
tion over that counterclaim; (2) a motion to set aside the
verdict and for judgment notwithstanding the verdict,
arguing, inter alia, that any waiver of the state’s sover-
eign immunity was limited to counterclaims sounding
in recoupment and did not permit an affirmative award
of damages against the department; and (3) a motion
to reduce the $18.3 million verdict, arguing, inter alia,
that the award was not supported by the evidence and
was the result of the jury’s inflammation and prejudice,
as evidenced by its attempt to award ‘‘plus punitive
damages,’’ despite the trial court’s specific instruction
not to consider punitive damages for that counterclaim.
See footnote 16 of this opinion. The trial court denied
the department’s renewed motion to dismiss and the
motion to set aside the verdict and for judgment not-
withstanding the verdict, but granted its motion to
reduce the verdict.
Accordingly, the trial court ordered a remittitur
reducing the jury’s damages award to $1.83 million,
concluding that the $18.3 million award ‘‘manifest[ed]
a shocking injustice indicating that the jury’s award
. . . was influenced by partiality or mistake. The sense
that the jury was moved by an erroneous or inflamed
view in regard to . . . damages [was] further evi-
denced by the jury’s conclusion that punitive damages
should be imposed in addition to the $18.3 million com-
pensatory award.’’ The defendant refused to accept the
reduced award and, on July 12, 2010, the trial court
rendered judgment in accordance with the jury’s verdict
on all of the department’s claims and the defendant’s
counterclaims, with the exception of the jury’s determi-
nation of damages as to the defendant’s procedural due
process counterclaim. The trial court then set aside the
jury’s $18.3 million damages verdict and ordered a new
trial on the defendant’s procedural due process counter-
claim as to damages only. The present appeals and cross
appeals followed.
On appeal, the department claims, inter alia,17 that: (1)
sovereign immunity bars awards of monetary damages
against the state and jury trials on claims against the
state without statutory authority; and (2) the trial
court’s admission of evidence that was irrelevant and
prejudicial to the department, coupled with its exclu-
sion of crucial evidence that was favorable to the
department, likely inflamed the jury and tainted its ver-
dict. We address these claims in turn.18 Additional facts
will be set forth as necessary.
I
We begin with the department’s claim that the trial
court improperly determined that, by initiating the pres-
ent action against the defendant, it waived the state’s
sovereign immunity for all counterclaims, including
those seeking monetary damages. Specifically, the
department claims that the trial court improperly
expanded the judicially created exception to sovereign
immunity set forth in State v. Kilburn, supra, 81 Conn.
12, wherein this court allowed a defendant to advance
equitable counterclaims in response to the state’s equi-
table foreclosure action.19 The department argues that,
not only are courts required to construe exceptions to
sovereign immunity narrowly—which would limit the
application of Kilburn to equitable actions—but the
adoption of article eleventh, § 4, of the Connecticut
constitution20 and the subsequent creation of the Office
of the Claims Commissioner also indicate that the legis-
lature did not intend state agencies to have the authority
to waive the state’s sovereign immunity as to any and
all counterclaims for monetary damages simply by ini-
tiating litigation against private parties. Finally, citing
Beecher v. Mohegan Tribe of Indians, 282 Conn. 130,
918 A.2d 880 (2007), the department argues that any
waiver of the state’s sovereign immunity by an agency’s
initiation of litigation should be limited to ‘‘counter-
claims that arise out of the same transaction or occur-
rence as the sovereign’s suit but only to the extent [that]
those counterclaims are used to offset the government’s
affirmative claims and limit its recovery.’’21
In response, the defendant argues that, despite this
court’s acknowledgment of the equitable nature of the
claims presented in State v. Kilburn, supra, 81 Conn.
12, the application of that case has never been expressly
limited to equitable causes of action. The defendant
further asserts that the creation of the Office of the
Claims Commissioner, and the procedure for seeking
permission from the legislature to bring claims against
the state as a plaintiff—in the absence of litigation
initiated by the state—is irrelevant to whether the state
waives its sovereign immunity for counterclaims
asserted by a defendant when the state initiates litiga-
tion. We agree with the department, and conclude that
the state does not waive its sovereign immunity for
counterclaims seeking monetary damages simply by
initiating litigation against a private party. Accordingly,
we conclude that the trial court improperly denied the
department’s motions to dismiss the defendant’s proce-
dural due process counterclaim on the basis of sover-
eign immunity.
‘‘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 [determi-
nation] of the motion to dismiss will be de novo.’’ (Inter-
nal quotation marks omitted.) Gold v. Rowland, 296
Conn. 186, 200, 994 A.2d 106 (2010). In addition, ‘‘[s]ov-
ereign immunity relates to a court’s subject matter juris-
diction 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 correct
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 recog-
nized 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.’’ (Emphasis added;
internal quotation marks omitted.) Columbia Air Ser-
vices, Inc. v. Dept. of Transportation, 293 Conn. 342,
349, 977 A.2d 636 (2009).
Finally, we observe that, ‘‘[i]n its pristine form the
doctrine of sovereign immunity would exempt the state
from suit entirely, because the sovereign could not be
sued in its own courts and there can be no legal right
as against the authority that makes the law on which
the right depends. . . . This absolute bar of actions
against the state [however] has been greatly modified
both by statutes effectively consenting to suit in some
instances as well as by judicial decisions in others.’’
(Citations omitted; internal quotation marks omitted.)
Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987).
For example, we have held that the doctrine of sover-
eign immunity does not prevent a claimant from seeking
declaratory or injunctive relief for allegations that a
state official is acting either pursuant to an unconstitu-
tional statute or in excess of his authority. See, e.g.,
Gold v. Rowland, supra, 296 Conn. 212; Doe v. Heintz,
supra, 31. This is so because individuals have an
important interest in being protected from improper
governmental action and the state has no interest in
allowing such activity to continue such that a court’s
action to curb that activity would interfere with the
state’s legitimate governmental functions. See Gold v.
Rowland, supra, 214; see also Antinerella v. Rioux, 229
Conn. 479, 487–88, 642 A.2d 699 (1994), overruled on
other grounds by Miller v. Egan, 265 Conn. 301, 325,
828 A.2d 549 (2003).
We have expressly limited the exceptions to sover-
eign immunity for when a state official acts pursuant
to an unconstitutional statute or in excess of his author-
ity to actions seeking declaratory or injunctive relief,
however, because ‘‘a court may fashion these remedies
in such a manner as to minimize disruption to govern-
ment and to afford an opportunity for voluntary compli-
ance with the judgment. . . . We have adjudicated the
rights of the parties in such cases acting on the presump-
tion that other governmental departments will accede
to our interpretation of the applicable law.’’ (Citation
omitted.) Doe v. Heintz, supra, 204 Conn. 32. In contrast,
‘‘[a] money judgment . . . is directly enforceable, with-
out further court intervention, against any property of
the judgment debtor that is not statutorily exempt. . . .
[Therefore, even] where the monetary award is so mini-
mal as the sum a prevailing party would be entitled to
receive as taxable costs . . . this court has refused to
sanction a monetary judgment against the state in the
absence of explicit statutory authority.’’ (Citation omit-
ted; emphasis added.) Id.; see also, e.g., Miller v. Egan,
supra, 265 Conn. 321 (‘‘the exception to sovereign
immunity for actions in excess of statutory authority
or pursuant to an unconstitutional statute, applies only
to actions seeking declaratory or injunctive relief, not
those seeking monetary damages’’). Because there is
no dispute that there is no applicable statutory waiver
of immunity in the present case, we must determine
whether the department waived the state’s sovereign
immunity by initiating the present litigation and volunta-
rily invoking the jurisdiction of the courts.
A
We begin with the department’s contention that the
trial court, Shortall, J., improperly concluded that State
v. Kilburn, supra, 81 Conn. 12, articulated a rule under
which the state subjects itself to any and all related
counterclaims that a defendant may wish to bring when
it initiates litigation. Specifically, the department takes
issue with Judge Shortall’s conclusion that, although
Kilburn involved an equitable action, ‘‘no reason
appears why it should be limited to suits in equity and
not actions at law, and other courts have not so limited
it.’’ The department argues that, by emphasizing the
equitable nature of the claims presented in Kilburn and
the equitable principles underlying the rationale for the
exception to sovereign immunity recognized in that
case, this court intended to limit the application of
that exception to cases involving equitable claims. The
defendant responds, however, that this court’s recogni-
tion of the equitable nature of the claims presented in
Kilburn did nothing to abridge our conclusion that, by
bringing a foreclosure action against a city, the state
‘‘opened the door to any defense or cross-complaint
germane to the matter in controversy, that the city may
see fit to interpose.’’ (Emphasis added.) State v. Kil-
burn, supra, 12.
In Kilburn, the state had obtained a mortgage on a
parcel of property located in city of Hartford (city)
to secure a loan from the state’s school fund. Id., 11.
Thereafter, the city obtained liens upon the same prop-
erty for a sewer assessment and an assessment for the
expense of removing snow from the sidewalks on the
property, which, pursuant to General Statutes (1902
Rev.) § 1954, had priority over mortgages to private
individuals previously existing and recorded. Id. When
the state sought to foreclose its mortgage upon the
property, the city, which, as a lienholder on the prop-
erty, was made a defendant in the foreclosure action,
filed a cross complaint claiming that its sewer and snow
removal assessment liens had priority over the state’s
mortgage under § 1954. Id., 10. The state moved to dis-
miss the city’s cross complaint on the basis of sovereign
immunity. Id. This court concluded that, ‘‘[t]his action
being an equitable one, the [s]tate, by bringing it, opened
the door to any defense or cross-complaint germane to
the matter in controversy, that the city might see fit to
interpose. A sovereign who asks for equity must do
equity.’’ Id., 12. The court further concluded, however,
that there was ‘‘no equity in favor of the city’’ and that
liens for municipal assessments may override a prior
mortgage to a private individual, but they could not
take priority over a prior mortgage to the state. Id.,
12–13. The court, therefore, ordered the trial court to
grant the state’s motion to dismiss the city’s cross com-
plaint. Id., 13.
In our view, this court’s emphasis on the equitable
nature of Kilburn provided the foundation for its will-
ingness to consider the defendant’s equitable counter-
claims in that case.22 Given that this court construes
exceptions to sovereign immunity narrowly; see, e.g.,
Columbia Air Services, Inc. v. Dept. of Transportation,
supra, 293 Conn. 349–50; and the emphasis that this
court placed on the equitable nature of the claims raised
in Kilburn by qualifying the sentence in which the court
set forth the items to which the state had ‘‘opened
the door’’ by initiating the foreclosure action with the
phrase: ‘‘[t]his action being an equitable one,’’ and fur-
ther justifying its conclusion by stating that ‘‘[a] sover-
eign who asks for equity must do equity’’; State v.
Kilburn, supra, 81 Conn. 12; we conclude that the appli-
cability of the exception to sovereign immunity recog-
nized in Kilburn was intended to extend only to suits
in equity and the related equitable counterclaims that
would allow the court to make a full determination of
the equities in that case.
The defendant contends, however, that subsequent
cases citing Kilburn demonstrate that the applicability
of the exception to sovereign immunity set forth in
that case has not been limited to actions in equity or
equitable counterclaims, and argues that it should also
apply to counterclaims for monetary damages. For this
proposition, the defendant relies on Lacasse v. Burns,
214 Conn. 464, 468–70, 572 A.2d 357 (1990), State v.
Hartford Accident & Indemnity Co., 136 Conn. 157,
160 n.1, 70 A.2d 109 (1949), Reilly v. State, 119 Conn.
217, 219–20, 175 A. 582 (1934), overruled on other
grounds by Cannavo Enterprises, Inc. v. Burns, 194
Conn. 43, 46, 478 A.2d 601 (1984), Isaacs v. Ottaviano,
65 Conn. App. 418, 421–23, 783 A.2d 485 (2001), Univer-
sity of Connecticut v. Wolf, Superior Court, judicial
district of New Haven, Docket No. CV-XX-XXXXXXX-S
(October 26, 2004) (38 Conn. L. Rptr. 148), and State
v. Lex Associates, Superior Court, judicial district of
Hartford-New Britain at Hartford, Docket No. 4259
(December 1, 1995) (15 Conn. L. Rptr. 611). None of
the cases on which the defendant relies, however, sup-
port its argument that Kilburn provides the authority
under which its counterclaims survive sovereign
immunity.
First, the defendant contends that Reilly v. State,
supra, 119 Conn. 219–20, ‘‘first applied Kilburn in an
action for money damages . . . .’’ In Reilly, the state
brought an action against a trustee who had failed to pay
the state for the support of an inmate of the Connecticut
state hospital as required by the trust. Id., 218–19. The
trustee refused to participate in the litigation, and the
state obtained a default judgment against the trustee in
the amount of the state’s expenditures for the inmate’s
support plus costs. Id., 219. Thereafter, the trustee
brought a writ of error attacking the judgment of the
trial court. Id. In response, the state filed a plea in
abatement claiming that the writ of error was barred
by sovereign immunity because a writ of error, as
opposed to an appeal, is a new cause of action, and
the state had not agreed to become a party in that
‘‘new’’ case. Id. This court rejected the state’s claims,
concluding that a writ of error is, like an appeal, a direct
attack on the underlying judgment and, therefore, was
not a new action for which the trustee, as the plaintiff
in error, was required to obtain the state’s consent to
be sued. Id., 220. Accordingly, the court concluded that
‘‘[w]hen the [s]tate brought the original action it waived
its [sovereign] immunity as regards this writ of error
just as much as it would have waived it had the plaintiff
in error appealed.’’ Id., 221.
In reaching its conclusion, the court in Reilly
observed that Kilburn had indicated that, ‘‘if the [s]tate
itself invokes the jurisdiction of the court to secure
affirmative relief, it subjects itself to any proper cross
demand involved in the subject-matter of the action.’’
(Emphasis added.) Reilly v. State, supra, 119 Conn.
219. This observation, however, was unnecessary to
its conclusion that, ‘‘by bringing an action, the [s]tate
subjects itself to the procedure established for its final
and complete disposition in the courts, by way of appeal
or otherwise.’’ Id., 220. Therefore, not only was the
Reilly court’s reference to Kilburn dicta, but its use of
the term ‘‘proper cross demands’’ to describe the court’s
holding in Kilburn, did not extend the type of allowable
counterclaims beyond the equitable counterclaim that
did not impact the state fisc approved of in Kilburn.
This is particularly true given that the state, not the
defendant, sought monetary damages in Reilly. Accord-
ingly, Reilly does not, as the defendant contends, stand
for the proposition that, when the state initiates a cause
of action—legal or equitable—it opens the door to any
and all potential counterclaims. On the contrary, all
that Reilly stands for is the proposition that, when the
state brings a cause of action, it waives its sovereign
immunity with respect to the procedure established for
the action’s final and complete disposition in the courts,
including an appeal or a writ of error.
Next, the defendant argues that this court again relied
on Kilburn in recognizing ‘‘the significance of the state
having commenced suit against a contractor and its
insurer for costs incurred to complete a road construc-
tion project’’ in State v. Hartford Accident & Indemnity
Co., supra, 136 Conn. 157. In Hartford Accident &
Indemnity Co., the Deliso Construction Company, Inc.
(Deliso Construction) had been contracted to perform
a road construction project for the state. Id., 164. After
Deliso Construction began work on the project, how-
ever, it discovered that the excavation required far
exceeded the estimate from the state on which its bid
was based. Id. When its efforts to revise the contract
price for the project failed, Deliso Construction stopped
work and rescinded the contract. Id., 165. Thereafter,
the state hired another contractor to complete the proj-
ect and brought an action against Deliso Construction
to recover the excess cost of completion. Id., 159, 165.
Deliso Construction filed a counterclaim in which it
sought to recover the reasonable value of work that
it had completed before rescinding the contract. Id.,
159–60. In a footnote, this court noted that Deliso Con-
struction ‘‘was authorized by the General Assembly to
sue the state on its claim’’ but opined that ‘‘[t]he special
authority so given was unnecessary . . . [because] ‘if
the [s]tate itself invokes the jurisdiction of the court to
secure affirmative relief, it subjects itself to any proper
cross demand involved in the subject-matter of the
action.’ Reilly v. State, [supra, 119 Conn. 219].’’ State
v. Hartford Accident & Indemnity Co., supra, 160 n.1.
The defendant contends that the statement contained
within the first footnote of Hartford Accident & Indem-
nity Co. indicates this court’s recognition of a waiver
of sovereign immunity for counterclaims for monetary
damages whenever the state brings an action. The
defendant, however, overstates the import of this foot-
note. First, because the question before the court in
that case was whether Deliso Construction was entitled
to rescind the contract on the ground that the state had
misrepresented the scope of the job, and because the
legislature had expressly waived sovereign immunity
regarding the counterclaim, giving the court subject
matter jurisdiction over that claim, our statement that
such permission was unnecessary was merely dicta.
Furthermore, although Deliso Construction sought to
obtain money from the state in its counterclaim, it
merely sought to recover the fair market value of work
that it had completed, a claim premised on quantum
meruit, an equitable theory of recovery. See Walpole
Woodworkers, Inc. v. Manning, 307 Conn. 582, 587 n.9,
57 A.3d 730 (2012) (‘‘[q]uantum meruit is an equitable
remedy to provide restitution for the reasonable value
of services despite an unenforceable contract’’). There-
fore, the statement made by this court in Hartford Acci-
dent & Indemnity Co. indicating that the legislative
permission for the counterclaim was unnecessary does
not support the defendant’s claim that there is an excep-
tion to sovereign immunity that permits legal counter-
claims seeking monetary damages.
Furthermore, Lacasse v. Burns, supra, 214 Conn.
468–70, is also inapposite to the present case. In
Lacasse, the question before the court was whether the
accidental failure of suit statute applied in a case where
the state had expressly waived its sovereign immunity
under the highway defect statute, General Statutes
§ 13a-144. Id., 468. Although this court quoted Kilburn
in Lacasse, that quotation was merely an example of
the concept that, once involved in a civil action, the
state enjoys the same procedural status as any other
litigant and, therefore, does not support the proposition
that the state waives sovereign immunity entirely by
initiating litigation.23 Indeed, given that the state was the
defendant in Lacasse, not only had sovereign immunity
been waived by statute, but there also was no question
as to whether the state could impliedly waive sovereign
immunity by initiating litigation. See id., 468–69.
The defendant’s reliance on Isaacs v. Ottaviano,
supra, 65 Conn. App. 423, is similarly misplaced.
Although, in Isaacs, the Appellate Court stated that,
‘‘[t]o allow the state to invoke the jurisdiction of the
court to seek to establish that a defendant is liable to
it and yet allow it to shield itself from a counterclaim by
way of sovereign immunity would be patently unfair,’’ it
went on to conclude that ‘‘[t]hat rationale simply does
not apply here . . . .’’ (Emphasis added.) Id. Indeed,
the state did not initiate the litigation in Isaacs either.
Thus, the Appellate Court’s observation regarding the
effect of bringing suit not only is not binding on this
court, but al