241 Conn. 546 | Conn. | 1997
Lead Opinion
Opinion
This appeal arises from an action seeking injunctive and declaratory relief brought by Alma Maya, as cochairperson of and in the name of the plaintiff, Community Collaborative of Bridgeport, Inc. (CCB), against the defendants, Joseph P. Ganim, mayor of the city of Bridgeport, and the city council of the city of Bridgeport (council). The trial court, Moran, J., granted the defendants’ motion to dismiss, concluding that Maya did not have the authority unilaterally to file the action against the defendants. We conclude that Maya lacked standing to bring this action and, therefore, we affirm the judgment of the trial court.
The following undisputed facts are relevant to this appeal. In order to apply for a grant from the federal Department of Housing and Urban Development (department) under the “Empowerment Zone/Enterprise Community” program, the council established an organization known as the Interim Community Collaborative of Bridgeport (interim CCB). The interim CCB consisted of approximately thirty representatives of various community service and business organizations, the mayor’s office and the council. Maya, Mary McDuffie and Joshua Nessen acted as its cochairpersons. The
In January, 1995, the interim CCB was incorporated as the CCB, a nonprofit corporation, as the official organization established for the administration of the grant funds. As authorized by the CCB’s bylaws, Maya, McDuffie and Nessen, as the incorporators of the CCB, consented to their appointment as the CCB’s initial officers.
On January 23, 1996, in response to the defendants’ objections to the amended budget, the board of directors of the CCB (board) passed the following authorization: “The [board] gives authority to the CCB chairpersons to investigate and if necessary initiate legal action, including retention of legal counsel, on behalf of the [b]oard to prevent a City of Bridgeport takeover of the federal Enterprise Community funds and process.” At the time that the authorization was passed, Maya and McDuffie were the cochairpersons of the CCB. See footnote 4 of this opinion. On February 5, 1996, the council passed a resolution to amend the plan, which purported to alter the composition of the board and diminish its role in formulating the CCB’s budget. Subsequently, Maya, as cochairperson of the board, unilaterally filed an action in the trial court. She sought declaratory relief, alleging that the council’s
During a seven day hearing before the trial court, the parties presented testimony and evidence with respect to Maya’s authority to file the present action. Although Maya claimed in the verified complaint that she was authorized to file suit as a “duly authorized representative of the [CCB], as its cochairperson,” her authority was challenged by McDuffie, the other cochairperson.
The trial court granted the motion to dismiss, concluding that a clear reading of the CCB’s January 23, 1996 authorization required all of the chairpersons to act jointly with respect to any decision to bring an action and, therefore, Maya’s unilateral action was not authorized by the board. Furthermore, in its oral memorandum of decision, the trial court made the factual finding that “the court is not convinced whether there was ample evidence to indicate that an emergency, urgent, or critical situation existed which would have
On appeal, Maya argues that the trial court improperly concluded that she lacked standing to bring an action on behalf of the CCB because: (1) as president of the corporation, she had the inherent authority to initiate this action to preserve the corporate interest; (2) she also had the authority to bring this action to preserve the corporate interest because the two officers expressly authorized to bring suit were deadlocked in opposition to each other; and (3) the members of the CCB acquiesced in the filing of the action at a subsequent meeting, and thus ratified the action. We disagree with each of these claims.
We begin by recognizing the well settled principles with respect to a trial court’s power to determine its own jurisdiction. “As we have held repeatedly, the power to determine its jurisdiction is one of the core inherent powers of a court. [0]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case. ... [A] court must have jurisdiction to determine its own jurisdiction once that has been put in issue. . . . Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988); accord Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 227, 429 A.2d 478 (1980); Aaron v. Conservation Commission, 178 Conn. 173, 178, 422 A.2d 290 (1979).
“As we also have held, [i]t is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the
“To fulfill these goals, the standing doctrine requires a plaintiff to demonstrate two facts. First, the complaining party must be a proper party to request adjudication of the issues. Nye v. Marcus, 198 Conn. 138, 141, 502 A.2d 869 (1985). Second, the person or persons who prosecute the claim on behalf of the complaining party must have authority to represent the party. See, e.g., Orsi v. Senatore, 230 Conn. 459, 470, 645 A.2d 986 (1994) (standing of foster parent to sue child’s guardian on behalf of child); State v. Nardini, 187 Conn. 109, 112-16, 445 A.2d 304 (1982) (standing of state’s attorney to challenge recommendation of sentence review division on behalf of state); Barrett v. Southern Connecticut Gas Co., 172 Conn. 362, 370, 374 A.2d 1051 (1977) (standing of shareholder to file derivative action on behalf of corporation); Vaitekunene v. Budrys, 156 Conn. 547, 554, 244 A.2d 408 (1968) (standing of legatee’s purported attorney to appeal order of Probate Court on behalf of legatee).
“A complaining party ordinarily can show that it is a proper party when it makes a colorable claim of [a]
“To demonstrate authority to sue, however, it is not enough for a party merely to show a colorable claim to such authority. Rather, the party whose authority is challenged has the burden of convincing the court that the authority exists. See Orsi v. Senatore, supra, 230 Conn. 470; Vaitekunene v. Budrys, supra, 156 Conn. 554; see also Meredith v. Ionian Trader, 279 F.2d 471, 474 (2d Cir. 1960) (A party to ... a suit may by motion or pleading dispute the authority of the opposing party to act for the party in whose name he is proceeding, and, if the authority is not shown, the court will dismiss the action for want of parties before it.). The burden of proof for questions of authority is higher than that for questions of propriety because the former questions are more important. Lawsuits must be authorized not only to ensure that the litigants fairly and vigorously represent the party’s views; Rose v. Freedom of Inf ormation Commission, supra, 221 Conn. 223; but also because, if unauthorized lawsuits were allowed to proceed, future rights of the named parties might be severely impaired. Because of the doctrines of collateral estoppel (issue preclusion) and res judicata (claim preclusion), parties named in an unauthorized suit might later be unable to relitigate issues decided in that suit or to bring new claims. Barrett v. Southern Connecticut Gas Co., supra, 172 Conn. 371.” (Internal quotation marks omitted.) Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 570-573, 651 A.2d 1246 (1995). Because it is undisputed that the CCB is
II
A
Maya first argues that, as the president of the CCB, she had the inherent authority to initiate this action to preserve the corporate interest.
It is well settled in Connecticut law that “[corporate presidency per se does not confer inherent authority to commit the corporation. The corporation is only liable for the acts of its president if it is shown that [her] acts are so related to [her] duties as president that they may reasonably be held to have been done in the prosecution of the business of the corporation and while [she] was acting within the scope of [her] employment. Baptist v. Shanen, 145 Conn. 605, 608-609, 145 A.2d 592 (1958); Cohen v. Holloways’, Inc., 158 Conn. 395, 406-407, 260 A.2d 573 (1969); Perry v. Simpson Waterproof Mfg. Co., 37 Conn. 520, 534 (1871). The liability of the corporation therefore depends upon whatever specific powers of agency have been conferred upon the president. See Kempin, ‘The Corporate Officer and the Law of Agency,’ 44 Va. L. Rev. 1273 (1958).” Lettieri v. American Savings Bank, 182 Conn. 1, 7-8, 437 A.2d 822 (1980); see also S. Cross, Connecticut Corporation Law and Practice (1989) § 5.6, p. 256 n.75. Maya relies principally on Zaubler v. West View Hills, Inc., 148 Conn. 540, 172 A.2d 604 (1961), in arguing that, as president of the CCB, she had the authority to initiate this action to preserve the corporate interest. We disagree that Zaubler provides precedent for concluding that her unilateral action was valid.
In Zaubler, the plaintiff, as president of the corporation, sought to enjoin the defendant directors and shareholders from withdrawing an action that the plaintiff had brought in New York to prevent the defendants’ diversion of corporate assets. Id., 542-43. This court noted, in dicta, the holding of the New York Court of Appeals in West View Hills, Inc. v. Lizau Realty Corp., 6 N.Y.2d 344, 160 N.E.2d 622, 189 N.Y.S.2d 863 (1959), which stated that the plaintiff, as president of the corpo
Even if we were to find this dicta persuasive, we conclude that, in light of the board’s January 23, 1996 authorization as informed by the relevant provision in the bylaws governing the president’s authority, Maya did not have the authority to initiate this action. The bylaws of the CCB specifically provided that “[t]he president shall be the principal executive officer of the [CCB] and, subject to the control of the [board], shall in general supervise and control all of the business and affairs of the [CCB] and the [board].” (Emphasis added.) On January 23, 1996, the board clearly articulated that the cochairpersons, if acting jointly, could initiate a lawsuit against the defendants: “The [board] gives authority to the CCB Chaiipersons to investigate and if necessary initiate legal action . . . .” In other words, the board’s authorization effectively invalidated any presumptive authority that the president may have had to initiate legal action on her own accord. Accordingly, even if we were to assume that Maya was the official president of the CCB, her position alone does not confer the inherent authority to bind the CCB.
B
Maya next argues that she had the authority to bring this action to preserve the corporate interest because she and McDuffie, the two officers who were expressly authorized to bring an action, were deadlocked in disagreement. We disagree.
The following additional facts are relevant to this claim. During the evidentiary hearing, the trial court heard testimony that, subsequent to the council’s February 5, 1996 resolution, the mayor contacted Maya to request her presence at a meeting to discuss CCB issues.
Maya argued that McDuffie’s silence represented a deadlock situation. The trial court was unpersuaded. Instead, the trial court found that “[t]he fact that [Maya] contacted . . . McDuffie who did not really respond either affirmatively or negatively to the bringing of the action will not permit the court to infer that she acquiesced in the action. . . . The court will make one other finding that the court is not convinced whether there was ample evidence to indicate that an emergency, urgent, or critical situation existed . . . nor was there a deadlock situation.”
We recognize that Maya, as a cochairperson and a director of the board, could initiate an action on behalf of the CCB if deadlock had existed and the need for action to preserve vital corporate interests had been urgent. See Conlee Construction Co. v. Cay Construction Co., 221 So. 2d 792, 795 (Fla. App. 1969); cf. Covington Housing Development Corp. v. Covington, 381 F. Sup. 427, 430 (E.D. Ky. 1974), aff'd, 513 F.2d 630 (6th
“[O]ur role is not to retry the facts. . . . [W]e will upset a factual determination of the trial court only if it is clearly erroneous. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole .... We cannot retry the facts or pass on the credibility of the witnesses. A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 301, 685 A.2d 305 (1996).
On appeal, Maya argues that “[t]he trial court erred in failing to infer that McDuffie’s silence created a deadlock with Maya, the two authorized by the corporation to make the decision to initiate a lawsuit on its behalf.” We are not persuaded. Because silence, as we have stated in another context, is “ ‘insolubly ambiguous’ ”; see State v. Taitón, 197 Conn. 280, 295, 497 A.2d 35 (1985); we must construe such silence narrowly. On the basis of a narrow reading of silence, we cannot conclude that McDuffie’s silence during the conversation with Maya regarding the possibility of bringing a lawsuit caused a deadlock situation that warranted Maya’s unilateral initiation of this action in contraven
C
Maya’s final claim is that, at a subsequent meeting of the CCB board, the members of the CCB acquiesced in the filing of this lawsuit and thus ratified her action. We disagree.
The following additional facts are relevant to the disposition of this issue. On March 20, 1996, the CCB held its first board meeting subsequent to the initiation of this action. The first order of business at that meeting was a motion to approve the minutes from the previous board meeting, which took place on January 23, 1996. Another board member, Rosa Correa, moved to amend the minutes from the previous meeting because it was her understanding that the motion passed at that meeting empowered the chairpersons to investigate the possibility of legal action, but not to initiate it. The amendment failed, and the board subsequently approved the minutes of January 23, 1996, as written.
During the evidentiary hearing before the trial court, Maya clearly raised and briefed the issue of ratification. Although the trial court did not specifically find that the CCB board had failed to ratify Maya’s unilateral action at the March 20, 1996 meeting, such a finding is implicit in the trial court’s conclusion that the action should be dismissed for lack of standing. See 24 Leggett
As a general rule, “[ratification is defined as the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account. . . . Ratification requires acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances.” (Citation omitted; internal quotation marks omitted.) Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 185, 510 A.2d 972 (1986). “In order to ratify the unauthorized act of an agent and make it effectual and obligatory upon the principal, the general rule is that the ratification must be made by the principal with a full and complete knowledge of all the material facts connected with the transaction to which it relates; and this rule applies, of course, to ratification by a corporation of an unauthorized contract or other act by its officers or agents, whether the ratification is by the stockholders or by the directors, or by a subordinate officer having authority to ratify.” (Internal quotation marks omitted.) Cohen v. Holloways’, Inc., supra, 158 Conn. 408.
We recognize that “[ajuthority in the agent of a corporation may be inferred from the conduct of its affairs, or from the knowledge of its directors and their neglect to make objection.” Mahoney v. Hartford Investment Corp., 82 Conn. 280, 286, 73 A. 766 (1909). Indeed, we have stated that “[s]ilence, as well as affirmative acts,
Maya asserts that, at the time of the March 20, 1996 meeting, the CCB members had full knowledge of the pending action, and their failure to repudiate her actions constituted ratification. We disagree. The only question raised at that meeting with respect to the pending litigation was whether to amend the minutes of the previous meeting or to approve them as written. The board ultimately approved the minutes of the previous meeting, at which the board authorized the cochairpersons to investigate or, if necessary, to initiate litigation, provided that the cochairpersons act jointly. “An accurate copy of the minutes is important, since a corporation is deemed to speak officially only through its records, which includes the minutes. The minutes are generally prima facie evidence of the facts stated therein . . . .” 3 Z. Cavitch, Business Organizations (1997) § 62.05 [2], The minutes that the board approved were the same
The judgment is affirmed.
In this opinion CALLAHAN, C. J., and PALMER and MCDONALD, Js., concurred.
Article seven, § 1, of the CCB bylaws provides: “Initial Board Officers. Upon incorporation, the initial Officers of the Corporation shall be as follows. Officers will consist of the [interim CCB] chairpersons of the interim CCB, one of whom shall function as President, one of whom shall function as Vice-President, and one of whom shall function as Treasurer, as well as the current Secretary of the interim CCB.”
Article seven, § 2, of the CCB bylaws provides: “Election of Subsequent Officer. At the annual meeting of the CCB to be held after August 1, 1995 and no later than December 31, 1995, the following new officers will be elected by simple majority vote of the CCB Board of Directors: President, First Vice-President, Second Vice-President, Treasurer and Secretary. Additional officers may be elected as the CCB Board deems necessary. Nominations for officers may be made from the floor and individuals representing duly recognized CCB member organizations may self-nominate if they so choose.”
Article seven, § 6, of the CCB bylaws provides: “Duties of the President. The president shall be the principal executive officer of the Association and,
On September 26,1995, approximately five months prior to the initiation of this action, Karen Daden, another cochairperson, had tendered her resignation as cochairperson “[effective immediately.” Accordingly, for the purposes of this appeal, the only relevant cochairpersons are Maya and McDuffie.
On December 3, 1996, the defendants filed a motion to dismiss this appeal as moot because, on June 3, 1996, the council passed a resolution “thereby amending the Enterprise Community Strategic Plan Governance Structure so as to delete the [CCB] and create the Bridgeport Enteiprise Community Partnership.” Subsequent to the council’s resolution, Wilfredo Matos, Nirma Reyes and Thelma Perkins, CCB board members, filed an action in federal District Court against the department, requesting a declaratory judgment that the CCB “is the permanent governance structure for implementing the plan.”
This court denied the defendants’ motion without prejudice to renewal at oral argument. Additionally, this court ordered supplemental briefing to include consideration of: “(1) the incorporated status of the CCB, including any effect that the June 3, 1996 resolution may have on this status; and (2) the status of the pending federal court action . . . regarding the validity of the June 3, 1996 resolution.”
Specifically, the defendants argue in their motion to dismiss that, as a result of the June 3,1996 resolution, the issues raised by Maya are now moot because the CCB no longer has any involvement in the plan. We disagree.
“Mootness implicates the court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. . . . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot ques
What is determined in the federal court action regarding the June 3, 1996 resolution will necessarily implicate the validity of the February 5, 1996 resolution, which is the subject of this appeal. The District Court may hold that the June 3,1996 resolution is valid, concluding that the council properly altered the role of the CCB in the implementation of the plan, and thereby render moot the issue of the February 5, 1996 resolution. In the event, however, that the District Court concludes that the June 3, 1996 resolution was invalid, the propriety of the February 5, 1996 resolution would still be in controversy. Therefore, we conclude that because there remains the possibility that the June 3, 1996 resolution was invalid, Maya’s claims are not rendered moot as a result of that resolution. Accordingly, we address her standing claims.
It is undisputed that Maya was appointed as the initial president of the CCB in January, 1995. Furthermore, the CCB bylaws provided that succeeding officers would be elected at the first annual meeting, which would take place no later than December 31, 1995. The first annual meeting, however, never occurred and, therefore, the election of succeeding officers never took place. Accordingly, after December 31, 1995, Maya was no longer the de jure president of the CCB. Welch v. Seymour, 28 Conn. 387, 392 (1859).
At oral argument, the issue was raised with respect to whether Maya, as a de facto officer of the CCB, had the authority to file this action. Although this court has articulated the de facto doctrine in the context of public officers; see, e.g., Sansone v. Clifford, 219 Conn. 217, 227, 592 A.2d 931 (1991); we have never discussed the parameters of the doctrine with respect to private corporations. Other jurisdictions have held that a de facto officer or director of a private corporation is one in possession of and exercising the powers of the office under the claim and color of an election or appointment, although he or she is not a de jure officer. Prickett v. American Steel & Pump Corp., 253 A.2d 86, 88 (Del. 1969); Forest Home Cemetery Assn. v. Dardanella Financial Corp., 329 N.W.2d 885, 888 (S.D. 1983); see also 18B Am. Jur. 2d 308-309, Corporations § 1414 (1985). A de facto officer is one whose acts, though not those of a lawful officer, are such that the law will hold them valid, upon principles of policy and justice, insofar as they involve the interest of the public and third persons. Jack v. Oakbrook Terrace Community Park District, 31 Ill. 2d 390, 392, 202 N.E.2d 7 (1964); Smith v. Bayou Rentals, Inc., 345 So. 2d 1229, 1231 (La. App. 1977). Thus, aperson held out by the corporation as its officer may become a de facto officer, provided that he or she holds office under some degree of notoriety or color of title. Beraksa v. Stardust Records, Inc., 215 Cal. App. 2d 708, 714-15, 30 Cal. Rptr. 504 (1963). Furthermore, the mere assumption of title to office on one occasion cannot clothe a person with the title of a de facto officer; instead, there must be a continuing exercise of the functions of the office. Deal v. Johnson, 362 So. 2d 214, 219 (Ala. 1978); Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 764 n.7 (Alaska 1977). Without deciding whether the trial court properly found that Maya acted as the de facto president of the CCB, we conclude, based on the reasons set forth below, that Maya did not have the authority to initiate this action.
In order for Maya to have had the authority to initiate this action on behalf of the CCB, she needed to demonstrate at trial both deadlock and urgency. See Conlee Construction Co. v. Cay Construction Co., supra, 221 So. 2d 795. In light of our conclusion that no deadlock existed, we need not address the propriety of the trial court’s determination regarding urgency or the dissenting opinion in this respect.
The dissent makes much of the fact that, at the March 20 meeting, the board defeated a motion to correct the minutes of the January 23 meeting that would have rescinded authority to institute this action. The dissent’s argument, however, depends upon a finding by the trial court that the board intended to ratify this action. Intention is “[a]n essential element in the doctrine of ratification . . . Gallon v. Lloyd-Thomas Co., 264 F.2d 821, 826 (8th Cir. 1959). Although intent may be inferred from unexplained silence; Hartford Accident & Indemnity Co. v. South Windsor Bank & Trust Co., supra, 171 Conn. 72; the trial court never found that the board intended to ratify this action. “While it is the duty of the judge who tried the case to set forth the basis of that decision; Powers v. Powers, 183 Conn. 124, 125, 438 A.2d 845 (1981); if the . . .appellant. . . claims that the court’s memorandum of decision lacks a sufficient factual basis or is unclear or incorrect,, it is that party’s burden to have corrected or perfected that record.” Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 543, 651 A.2d 1302 (1995).
Furthermore, the board’s vote defeating the motion to correct the minutes of the January 23 meeting was entirely consistent with the trial court’s order that the status quo be maintained during the pendency of this action. Finally, contrary to the dissent’s argument, the board’s adoption of the January 23 minutes can hardly constitute implied ratification of the present action because the vote accepted the minutes only as an accurate statement of what had transpired at the January 23 meeting. See S. Cross, supra, (Sup. 1990) § 5.3 (C), p. 243.
Dissenting Opinion
dissenting. The sole issue before this court is whether this action, brought in the name of
I
Maya and her cochairperson, McDuffie, were authorized by the board, at its January 23, 1996 meeting, “to investigate and if necessary initiate legal action, including retention of legal counsel, on behalf of the Board to prevent a City of Bridgeport takeover of the federal Enterprise Community funds and process.” Although Maya, on her own, initiated this action for that purpose on behalf of the CCB, the law is clear that she had the authority to do so in order to protect vital corporate interests. The majority concedes “that Maya, as a cochairperson and a director of the board, could initiate an action on behalf of the CCB if deadlock had existed and the need for action to preserve vital corporate interests had been urgent.” See Conlee Construction Co. v. Cay Construction Co., 221 So. 2d 792, 795 (Fla. App. 1969); cf. Covington Housing Development Corp. v.
I would find that there was a deadlock for two reasons. First, the fact that McDuffie signed a letter that gave the mayor and the city council carte blanche to take the actions passed in the city council’s resolution of February 5, 1996, which would enable the city of Bridgeport to diminish the CCB’s role in formulating its own budget — the subject matter of this litigation — points to the irrefutable conclusion that McDuffie and Maya were deadlocked. This is buttressed by the fact that Maya requested McDuffie to rescind her acquiescence in the mayor’s fiscal plans for the CCB, but McDuffie refused to do so. Second, it is undisputed that Maya then sought McDuffie’s approval to initiate this litigation, but McDuffie refused to respond. McDuffie’s refusal to rescind her signature on the letter and her subsequent silence constituted an outright disagreement with Maya over whether to initiate litigation.
As far as the need to preserve vital corporate interests is concerned, the urgency is clear because the city council’s resolution would alter the composition of the board and would diminish the board’s role in formulating its budget. It is clear that the mayor and the city council were attempting to wrestle away substantial fiscal control from the board.
I would hold that there was a deadlock, that vital corporate interests were at stake and that, based on the
II
Notwithstanding that Maya had the authority to institute the litigation, the board implicitly ratified the bringing of this action. This court has held that “[i]f the officers or the agents of a corporation assume to act for the corporation without any authority at all, or if they exceed their authority or act irregularly, and the act is one which could have been authorised in the first instance by the stockholders, board of directors or subordinate officers, as the case may be, it may be expressly or impliedly ratified by them, and thus be rendered just as binding, except as to intervening rights of third persons, as if it had been authorized when done, or done regularly.” (Emphasis added; internal quotation marks omitted.) Cohen v. Holloways’, Inc., 158 Conn. 395, 407-408, 260 A.2d 573 (1969). Stated another way, and as applied to this case, if a corporation, with knowledge of the facts, does not repudiate litigation brought on its behalf, it thereby impliedly ratifies the action of its officer in bringing the litigation. Id., 409; see also Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 185, 510 A.2d 972 (1986).
After this action was instituted and the defendants had filed their motion to dismiss, and after the trial court had commenced hearings on the motion, the board impliedly ratified the bringing of this action at its meeting of March 20, 1996. Maya presided over that meeting. The following excerpts from the minutes of the March 20 meeting reveals that the board was cognizant of the CCB’s pending litigation with the mayor and the city council.
The city attorney, whose office was representing the defendants in this case, had the audacity to attend the March 20 meeting in order to attempt to undermine
After a motion was made to approve the minutes of the January 23 board meeting, Rosa Correa, a director of the board, questioned whether authority was granted to the chairpersons of the CCB, which included Maya, to institute this litigation. Although Correa failed formally to move to correct the minutes of the January 23 meeting, the city attorney stated “that unless Correa’s statement is treated as a motion to correct, then [the city attorney] was making a motion to correct.”
Thereafter, the minutes of the March 20 meeting reflect the following discussion: “Christopher Caruso [a director of the board] then made a point of order. He queried whether it was [the city attorney] or [Dennis Murphy, another director of the board] who was representing the city at this meeting. If Murphy was, then he should be raising these points. Caruso added that [the city attorney] is also counsel for the City of Bridgeport. It was very important for the record to reflect that the City Attorney’s office is involved in litigation with the [CCB] in court. [Caruso] asked who was representing the city. Upon further inquiry by Maya, Murphy responded that he was representing the City at this meeting.” (Emphasis added.)
Correa’s objection to the approval of the January 23 minutes was then considered to be a motion to amend the minutes by deleting the authority to institute “legal action from the January 23, 1996 minutes.” The motion was seconded, but was defeated in a roll call vote (14 in favor, 18 against and 2 abstentions). The board then approved the January 23 minutes.
The board, at its March 20 meeting, not only defeated a motion to correct the minutes of the January 23 meeting that would have rescinded the authority to institute this action, but, also, with full knowledge that Maya instituted this litigation, impliedly ratified the bringing of this action.
The majority colors this case with the underlying substance of the dispute — that is, an adoption of a budget by the CCB that, according to the defendants, authorized excessive amounts for the administration of the CCB. But that issue is not before this court and should not be dispositive of this appeal.
In my view, Maya, as a cochairperson of the CCB, had the authority to initiate this action because of the deadlock situation that existed with her cochairperson, McDuffie, and because of the vital corporate interests
Accordingly, I dissent.
The majority, in response to this dissent, asserts that the ratification I depend upon was the adoption of the motion to approve the minutes of the January 23 meeting. That simply misconstrues this dissent. I rely on the March 20 meeting because the board had full knowledge of the litigation and impliedly ratified it by taking no action to disaffirm the initiation of the litigation. In a case relied upon by the majority, with respect to the law of ratification, this court adopted the rule set forth in the Restatement (Second) as follows: “We have frequently held that: Ratification is defined as the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account. Restatement (Second), 1 Agency § 82 (1958).” (Internal quotation marks omitted.) Russell v. Dean Witter Reynolds, Inc., supra, 200 Conn. 185. Implied ratification is “sometimes put upon the ground that ratification of the unauthorized act is presumed from failure to disaffirm.” (Emphasis added; internal quotation marks omitted.) Cohen v. Holloways’, Inc., supra, 158 Conn. 408. Thus, based on the undisputed facts of this case, and contrary to the majority’s conclusion, ratification is presumed.
