Opinion
No. CV06-5001886S
May 5, 2010
MEMORANDUM OF DECISION
FACTS
The plaintiff, Wiacek Farms, LLC, brings this action against the City of Shelton and four individuals, Mayor Mark Lauretti, City Engineer Robert Kulacz, John Anglace, the President of the Board of Aldermen, and Zoning Enforcement Officer Thomas Dingle.
The individual defendants have been sued both in their individual capacities, and in their capacity as officials, officers and/or employees of the City of Shelton.
The three-count complaint concerns the plaintiff's attempt to develop a 24-lot subdivision, and the City of Shelton's subsequent condemnation of the property, in order to preserve it as open space.
In October of 2003, Wiacek Farms, LLC submitted a 24-lot residential subdivision to the Shelton Planning and Zoning Commission, concerning approximately 41 acres which abuts Shelton High School. The commission approved the subdivision proposal in March of 2004.
According to the complaint, following the posting of a subdivision bond by the Plaintiff with the city of Shelton, the Defendant John Anglace announced that he hoped the city could acquire the property, and would begin negotiations with the property owner. Failing that, the Board of Alderman's president expressed the hope that Shelton would condemn the property, pursuant to statute.
Section 48-6, C.G.S. — "(a) Any municipal corporation having the right to purchase real property, for its municipal purposes which has, in accordance with its charter or the general statutes, voted to purchase the same shall have the power to take or require such real property . . . and if the municipality cannot agree with any owner upon the amount to be paid . . . it shall proceed in the manner provided by Section 48-12 . . ."
The Plaintiff claims that Mark Lauretti, who has served as mayor of the City of Shelton since 1991, attempted to thwart the Plaintiff's subdivision development, because of a financial interest he maintained in property consisting of 9.3 acres, which bordered the Housatanic River, and was subdivided. It further claims that the various defendants conspired to deny a necessary excavation permit, without which the Wiacek Farms, LLC subdivision could not proceed.
The City of Shelton, acting through its Board of Aldermen, voted to condemn the property, and the Plaintiff, Wiacek Farms, LLC, sought an injunction, in order to block the condemnation action. Those efforts were unsuccessful.
The earlier action, Wiacek Farms. LLC v. City of Shelton, 2005 WL 1023152 (Conn.Super.) (Stevens, J.), named only the City of Shelton as a defendant.
In its verified complaint, the Plaintiff claimed that the Board of Aldermen adopted a resolution in April of 2005, which sought to condemn the property. The reason given for the municipal use of eminent domain, was "for open space and recreational purposes consistent with such open space." The fair market value of the property as of the date of taking was pegged at $2.5 million dollars.
A notice of the filing of a statement of condemnation was tendered, after the city's failure to negotiate a purchase price, consistent with § 48-6 of the General Statutes.
In the injunction action, the Plaintiff alleged that the City of Shelton had condemned the property in bad faith, and for the primary purpose of halting progress on its approved subdivision. Wiacek Farms, LLC claimed that it would suffer irreparable harm, if the injunctive relief it requested was denied.
The Plaintiff alleged, in its complaint, that Lauretti entered into a contract to purchase property known as 550 River Road, Shelton, which property, if subdivided, would be in competition with the Plaintiff's subdivision. Wiacek Farms further claimed that the City of Shelton made no effort to acquire the River Road property, as support for its claim of bad faith.
In his decision, Judge Stevens pointed out that the land owned by Wiacek Farms, LLC, had been identified as a potential acquisition by the City of Shelton, many years prior to the institution of the condemnation action. He further found that the Board of Aldermen had authorized Mayor Lauretti to pursue negotiations aimed at acquiring the parcel, and that there was no evidence that the mayor misled or pressured the Board of Aldermen prior to its unanimous vote. Wiacek Farms, LLC v. City of Shelton, supra.
In addition to finding that the mayor had not pressured the Board of Aldermen prior to its vote to condemn the Wiacek Farms, LLC property, Judge Stevens determined that the condemnation action involved a legislative function, not an executive function.
He denied the request for injunctive relief, and the City of Shelton proceeded to acquire the parcel.
This action involves claims of tortious interference with business and contractual expectations, and violations of the applicable Connecticut Anti-Trust statutes, in the first two counts. These counts are addressed to all defendants.
In addition, in count three, the Plaintiff has pled a claim of estoppel against the City of Shelton.
The defendant Mark Lauretti has moved for summary judgment. He claims that the decision by Judge Stevens in the prior action based, upon consideration of collateral estoppel, prevents the Plaintiff from pursuing its claims in this action. He also alleges that Wiacek Farms, LLC seeks a double recovery, in light of the decision in City of Shelton v. Wiacek Farms, LLC, 2009 WL 765398 (Conn.Super.) (Levin, J.), and that he cannot be held liable in his personal or official capacity, since the condemnation action, and the decision to acquire the property, was a legislative decision made by the Shelton Board of Aldermen.
STANDARD OF REVIEW — SUMMARY JUDGMENT
A trial court may properly render summary judgment when documentary and other evidence demonstrate that no genuine issue of material fact remains between the parties, and the moving party is entitled to judgment as a matter of law. Daily v. New Britain Machine Corporation, 200 Conn. 562, 568 (1986); Bartha v. Waterbury House Wrecking Corporation, 190 Conn. 8, 11 (1983).
The party seeking summary judgment, in this case the defendant Mark Lauretti, had the burden of showing the absence of any genuine issue as to any material fact. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994); D.H.R. Construction Corporation v. Donnelly, 180 Conn. 430, 434 (1980). A material fact has been defined as one which will make a difference in the result of the case. United Oil Corporation v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969). In determining a motion for summary judgment the court is required to view all of the evidence in the light most favorable to the non-moving party. Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202 (1995).
Although the purpose of a motion for summary judgment is to test for the presence of contested factual issues, the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate, when the defect cannot be cured through re-pleading. Larobina v. McDonald, 274 Conn. 392, 401 (1995).
PRIOR ACTIONS DO NOT DEFEAT THIS ACTION BASED UPON APPLICATION OF PRINCIPLES OF COLLATERAL ESTOPPEL
The defendant, Mark Lauretti, claims that Wiacek Farms, LLC cannot maintain this action, because the same issues were previously determined in Wiacek Farms, LLC v. City of Shelton, supra, and in City of Shelton v. Wiacek Farms, LLC, supra.
Collateral estoppel, or issue preclusion, embodies a judicial policy which favors judicial economy, the stability of former judgments and finality. Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 58 (2002). Flexibility is encouraged, since the application of the doctrine has dramatic consequences for the party against whom it is applied. Courts must be careful, to see that the impact of the doctrine does not work an injustice. Gladysz v. Planning Zoning Commission, 256 Conn. 249, 261 (2001).
Collateral estoppel prevents a party from relitigating an issue which was actually and necessarily determined in an earlier proceeding, between the same parties, or those in privity with them, upon a different claim. Weiss v. Statewide Grievance Committee, 227 Conn. 802, 818 (1993). To successfully assert the doctrine of issue or fact preclusion, a party must establish that the issue sought to be foreclosed actually was litigated and determined in a prior action between the parties or their privies, and that the resolution of the issue was essential to the decision in the prior case. Scalzo v. Danbury. 224 Conn. 124, 128 (1992); Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 592, 600-01 (1996).
If an issue has been determined, but the judgment is not dependent upon the determination of that issue, then the parties may relitigate the issue in a subsequent action. Dowling v. Finley Associates, Inc, 248 Conn. 364, 374 (1999).
Wiacek Farms, LLC v. City of Shelton. supra, sought to enjoin the City of Shelton from taking the Plaintiff's 41-acre parcel, through the exercise of its power of eminent domain. Mark Lauretti, either individually or in a representative capacity, was not a party to this action.
Judge Stevens was not called upon to determine whether Mark Lauretti had attempted to obstruct the Plaintiff in its attempt to proceed with the approved subdivision, because only the action of the Board of Aldermen, was at issue. The challenged action was the decision to proceed with the taking of the Plaintiff's property.
While Judge Stevens found that Mayor Lauretti did not exert pressure on the Board of Aldermen to reach its determination, he made no such findings regarding the allegations in this case, concerning the issuance of the excavation permit, or the alleged conspiracy between the individual defendants.
The mayor's ownership of an interest in the River Road property played at best a tangential role in the action seeking an injunction, and was never fully litigated or explored.
Furthermore, neither Judge Stevens or the parties had the benefit of extensive discovery, because the issue concerned allegations or irreparable harm which Wiacek Farms, LLC would suffer, in the absence of an injunction.
Count one of the Plaintiff's complaint involves a claim of tortious interference with business advantage, a claim that was not pled, and could not have been raised, in either prior action.
Connecticut has long recognized a cause of action for tortious interference with contract rights and business relations. Blake v. Levy, 191 Conn. 257, 260 (1983). Of course, not every act which disturbs a business relationship is actionable. The plaintiff must prove that the conduct of a particular defendant was tortious. Kakadelis v. DeFabritis, 191 Conn. 276, 279 (1983). This element is satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation, or that he acted maliciously. Kecko Piping Co. v. Monroe, 172 Conn. 197, 201-02 (1972); Busker v. United Illuminating Co., 156 Conn. 456, 461 (1968).
The law forbids unjustifiable interference with any person's right to pursue a lawful occupation or business and to secure the earnings of his industry. Full, fair and free competition is necessary to the economic life of a community, but no person can, by unlawful means, prevent another from obtaining the fruits of his labor. Goldman v. Feinberg, 130 Conn. 671, 674 (1944).
In an action for tortious interference with business or commercial advantage, a plaintiff may not recover nominal damages. He must demonstrate that he has suffered actual loss. Herman v. Endriss, 187 Conn. 374, 377 (1982); Taylor v. Sugar Hollow Park, Inc., 1 Conn.App. 38, 39 (1983). Loss of profit may constitute an actual loss. Finman Sons, Inc. v. Connecticut Truck Trailer Service Co., 169 Conn. 407, 415 (1975). It must appear that, except for the tortious interference of the particular defendant, there was a reasonable probability that the plaintiff would have made a profit. Selby v. Pelletier, 1 Conn.App 320, 323 (1984); Goldman v Feinberg, supra, 674-75.
It is not, however, essential that a Plaintiff prove that there has been a breach of contract, in order to recover for a claim of tortious interference with business expectancy. Sportsmen's Boating Corporation v. Hemsley, 192 Conn. 747, 754 (1984).
In City of Shelton v. Wiacek Farms, LLC, supra, Judge Levin utilized the subdivision development method when determining the fair market value of the Wiacek Farms, LLC property, on the date of taking.
Because the buyer, under this method, is a hypothetical buyer, who seeks to develop the subdivision and make a profit, Judge Levin did not include "entrepreneurial profit" which the Plaintiff might have realized, had he developed the property.
Nor was consideration given to the expenses which Wiacek Farms, LLC incurred in preparing the subdivision, seeking financing to proceed with development, or attorneys fees, among other costs.
Assuming arguendo, that the Plaintiff in this action can prove that one or more of the individual defendants tortiously interfered with the commercial and business dealings of Wiacek Farms, LLC, the Plaintiff will be required to prove damages, and to remove those claims from the realm of speculation.
However, for purposes of the Defendant's motion for summary judgment, the damages claimed in this action, and those recoverable for tortious interference with business or commercial expectation, are not synonymous with those considered by Judge Levin, in an action brought to determine the fair market value of the property on the date of the taking by the City of Shelton.
The fact that the City of Shelton acquired the property through the use of its power of eminent domain, does not serve as a bar to this action.
While an examination of the voluminous material supplied along with the motion for summary judgment demonstrates that the Plaintiff's ability to prevail is somewhat problematic, genuine issues of fact remain, which prevent the granting of Mayor Lauretti's motion for summary judgment.
Whether the alleged conspiracy involving the mayor, the city engineer, the president of the Board of Aldermen, and the zoning enforcement officer was the legal cause of the Plaintiff's injury, in light of the votes of the non-defendant members of the Board of Aldermen and the Conservation Commission, along with the actions of other officials, cannot be determined via summary judgment.
The trier of fact may well find that the unanimous vote of the Shelton Board of Aldermen, which authorized Mayor Lauretti to open negotiations with Wiacek Farms, LLC, and the Board of Aldermen's subsequent vote to condemn the property, after negotiations failed, were the result of independent judgment exercised by volunteer office holders, not the result of some sinister conspiracy.
What role, if any Mayor Lauretti's interest in the River Road property played in the decision to condemn the Wiacek Farms, LLC property, will have to be substantiated by more than vague allegations, and innuendo.
Wiacek Farms, LLC must prove its claims, in light of the 1993 open space plan adopted by the City of Shelton, which called for the acquisition of property in and around Shelton High School. The Wiacek Farms, LLC property abuts the high school.
Furthermore, the Wiacek property was identified as a property subject to acquisition in the Conservation Commission's 1999 Comprehensive Plan, a document which was completed and adopted before Mayor Lauretti acquired an interest in the River Road property, and five years before the Board of Aldermen sought to condemn the property.
However, notwithstanding the daunting task facing the Plaintiff, Wiacek Farms, LLC, questions of credibility are for the trier of fact, and are ill-suited to the summary judgment procedure.
Because genuine issues of material fact remain between the parties, along with credibility issues, the Defendant Mark Lauretti's motion for summary judgment must be DENIED.