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LLC v. Oatis

Court of Appeals of Connecticut

August 23, 2016

DIAMOND 67, LLC
v.
DEREK V. OATIS ET AL.

          Argued April 18, 2016

         Appeal from Superior Court, judicial district of Hartford, Complex Litigation Docket, Wahla, J. [motion to cite in]; Miller, J. [motions for summary judgment; judgment].)

          Richard P. Weinstein, with whom, on the brief, was Sarah Black Lingenheld, for the appellant (plaintiff).

          James F. Sullivan, for the appellees (named defendant et al.).

          Joseph J. Arcata III, with whom, on the brief, was Daniel P. Scapellati, for the appellee (defendant James D. Batchelder).

          Jared M. Alfin and Cristin E. Sheehan, with whom, on the brief, was Robert W. Cassot, for the appellee (defendant Amy Blaymore-Paterson).

          Reed A. Slatas, for the appellee (defendant Ann Letendre).

          Jeffrey G. Schwartz, for the appellee (defendant John Summers).

          Christopher P. Kriesen, for the appellee (defendant Deborah Wilson).

          Alvord, Sheldon and Mihalakos, Js.

          OPINION

          SHELDON, J.

         The plaintiff, Diamond 67, LLC, appeals from the summary judgment rendered by the trial court in favor of the defendants, Derek V. Oatis, Lobo & Associates, LLC, James D. Batchelder, Glenn Montigny, Amy Blaymore-Paterson, Ann Letendre, John Summers, and Debra Wilson. The plaintiff sought to develop a Home Depot store in the town of Vernon that the defendants, a group of concerned citizens and their attorneys, opposed for environmental reasons. Certain defendants, allegedly acting with the support of their codefendants, thus sought to intervene in various administrative and mandamus actions between the plaintiff and the Planning and Zoning Commission of the Town of Vernon (planning and zoning commission). Thereafter, the plaintiff brought this action, sounding in vexatious litigation, claiming that the defendants’ conduct in intervening or supporting other defendants’ interventions in the planning and zoning actions, and their appeals from the denials thereof, had delayed it in obtaining the necessary final approval from the planning and zoning commission. The plaintiff claimed that because those appeals delayed the approval of the Home Depot development project by the planning and zoning commission until after the deadline agreed to for that purpose in the plaintiff’s agreement with Home Depot, Home Depot abandoned the development project to the plaintiff’s great financial loss. The trial court granted all of the defendants’ motions for summary judgment on the ground that the plaintiff could not establish that the defendants’ actions had caused Home Depot to abandon the development project, or thus to sustain any compensable losses. The plaintiff appeals, claiming that genuine issues of material fact remain as to the causation of damages. The defendants argue that summary judgment was appropriately rendered, and raise various alternative grounds for affirmance as well. We agree with the plaintiff that summary judgment was improperly granted, and decline to affirm the court’s judgment on any of the alternative grounds proposed by the defendants.

         The facts of this case are closely related to those at issue in three other cases: Batchelder v. Planning & Zoning Commission, 133 Conn.App. 173, 34 A.3d 465, cert. denied, 304 Conn. 913, 40 A.3d 319 (2012), Diamond 67, LLC v. Planning & Zoning Commission, 127 Conn.App. 634, 15 A.3d 1112, cert. denied, 301 Conn. 915, 19 A.3d 1261 (2011), and Diamond 67, LLC v. Planning & Zoning Commission, 117 Conn.App. 72, 978 A.2d 122 (2009). We set forth the following relevant facts in Batchelder. ‘‘In 2003, [the plaintiff] applied to the Vernoninland wetlands commission (wetlands commission) for a wetlands permit and to [the planning and zoning commission] for site plan approval and related permits in connection with its proposed development [of a Home Depot]. Diamond 67, LLC v. Planning & Zoning Commission, [supra, 75]. In 2007, after the wetlands commission issued [the plaintiff] a wetlands permit, [the plaintiff] filed a renewed application for approval of a site plan and related permits with [the planning and zoning commission]. Id. While the renewed application was pending, [the plaintiff] brought a mandamus action, claiming that [the planning and zoning commission] had failed to act on the 2003 application [by] the time limits set forth in General Statutes § 8-3 (g) and General Statutes (Rev. to 2003) § 8-7d. Id., 75-76. [The plaintiff] argued that it was therefore entitled to have the 2003 application automatically approved. Subsequently, [the planning and zoning commission] denied [the plaintiff’s] renewed application, and [the plaintiff] filed an administrative appeal to the trial court from the denial, in addition to the mandamus action. Id., 76.

         ‘‘During the pendency of the mandamus action and the administrative appeal, Montigny filed motions, pursuant to [General Statutes] § 22a-19 (a), [1] to intervene in each proceeding. Id. Batchelder, however, did not seek to intervene in either proceeding. On October 17, 2007, the court, Sferrazza, J., granted Montigny’s motion to intervene in the administrative appeal but denied his motion to intervene in the mandamus action. Id.

         ‘‘In November, 2007, [the plaintiff and the planning and zoning commission] engaged in mediation and settlement discussions, from which Montigny and Batchelder were excluded. Id., 77. The discussions led to a possible agreement on a new site plan, which was scheduled to be discussed at a public forum held by [the planning and zoning commission] on November 19, 2007. Id. Prior to November 19, 2007, [Montigny and Batchelder] petitioned, pursuant to § 22a-19, to intervene in the public forum, but [the planning and zoning commission] denied their petitions. On December 4, 2007, [Montigny and Batchelder] filed [an] administrative appeal from the denial of their requests to intervene in the public forum.

         ‘‘FIRST TWO APPEALS [ENTITLED DIAMOND 67, LLC v. PLANNING & ZONING COMMISSION]

         ‘‘Following the public forum, [the planning and zoning commission] voted to approve the settlement, and [the plaintiff] filed a motion in the mandamus action for judgment in accordance with the settlement agreement. [Id.] On February 13, 2008, before the court took any action on [the plaintiff’s] motion, Montigny filed a renewed motion to intervene in the mandamus action, claiming that the court was required to consider the environmental impact of the new plan in its review of the settlement agreement, and that he therefore was entitled to intervene pursuant to § 22a-19. Id.

         ‘‘On February 14, 2008, Judge Sferrazza held a hearing on [the plaintiff’s] motion for judgment in accordance with the settlement agreement. Id. At the hearing, Judge Sferrazza denied Montigny’s renewed motion to intervene and rendered judgment in accordance with the terms of the settlement agreement. Id., 77-78. Montigny appealed from that judgment, claiming that the trial court improperly denied his renewed motion to intervene. Id., 79. [On September 15, 2009, in] Diamond 67, LLC v. Planning & Zoning Commission, supra, 117 Conn.App. 84, this court reversed the judgment of the trial court, concluding that ‘the substance of the settlement . . . focused on the issues of the administrative appeal and not solely on the issues of the mandamus action.’ This court held that Judge Sferrazza ‘improperly denied Montigny’s renewed motion to intervene and failed to conduct a hearing compliant with [General Statutes] § 8-8 (n).’ Id., 85. Accordingly, this court remanded the case with direction to grant Montigny’s motion to intervene and to ‘conduct a hearing compliant with § 8-8 (n) to review the settlement, in which Montigny is entitled to participate for the purpose of raising environmental issues.’ Id.

         ‘‘On October 21, 2009, Hon. Lawrence C. Klaczak, judge trial referee, held a hearing pursuant to the remand order. Montigny, who appeared through counsel but did not personally attend, was granted intervenor status. Diamond 67, LLC v. Planning & Zoning Commission, supra, 127 Conn.App. 642 and n.6. Batchelder did not seek to intervene. Montigny’s counsel, however, failed to present any evidence concerning environmental issues. Id., 643. On December 3, 2009, Judge Klaczak approved the settlement proposal and rendered judgment in accordance with its terms. Id., 643-44.

         ‘‘Montigny also appealed from that judgment. See id., 637. Montigny claimed, in part, that Judge Klaczak improperly approved the settlement proposal because he, Montigny, did not consent to it. Id., 650. On April 5, 2011, this court released its decision in Diamond 67, LLC v. Planning & Zoning Commission, supra, 127 Conn.App. 634, affirming the judgmentofthe trial court. Id., 651. This court concluded, in relevant part, that ‘Montigny abdicated his right of approval by abandoning his responsibility to raise environmental issues as an intervenor pursuant to § 22a-19’ at the remand hearing. Id.

         ‘‘[THIRD APPEAL, ENTITLED BATCHELDER v. PLANNING & ZONING COMMISSION]

         ‘‘Meanwhile, on February 25, 2010, [the planning and zoning commission] moved for summary judgment in the administrative appeal filed by [Montigny and Batchelder] from [the planning and zoning commission’s] denial of their petitions to intervene in the public forum held on November 19, 2007. On June 10, 2010, Judge Sferrazza granted [the planning and zoning commission’s] motion for summary judgment as to Montigny’s claim on the basis of collateral estoppel and dismissed Batchelder’s appealas moot. Judge Sferrazza concluded that Judge Klaczak’s ruling, rendered on December 3, 2009, approving the settlement proposal following the remand from Diamond 67, LLC v. Planning & Zoning Commission, supra, 117 Conn.App. 85, disposed of [Montigny’s and Batchelder’s] claims.’’ (Footnotes altered.) Batchelder v. Planning & Zoning Commission, supra, 133 Conn.App. 176-79.

         In the third appeal of these related cases, Batchelder and Montigny appealed from Judge Sferrazza’s rendering of summary judgment. On January 24, 2012, this court held that the appeal was moot: ‘‘Boiled down to its essence, [Montigny and Batchelder] were provided the opportunity to raise environmental concerns at the October 21, 2009 hearing held by Judge Klaczak, but failed to do so. They were offered, but failed to avail themselves of, the very thing they sought to attain by seeking to intervene in the November 19, 2007 public forum. Accordingly, we cannot afford [Montigny and Batchelder] any practical relief, and, therefore, their appeal is moot.’’ Id., 182.

         THE PRESENT APPEAL

         The gravamen of the current action is the plaintiff’s claim that the defendants’ conduct in intervening or supporting their codefendants’ interventions in the administrative and mandamus actions described previously caused a delay in its obtaining the necessary final approvals for the Home Depot development project from the planning and zoning commission, which ultimately led Home Depot to abandon the project.

         The plaintiff had entered into a sale-leaseback agreement with Home Depot on March 9, 2006, in contemplation of its development of the Home Depot store. Under the terms of that agreement, Home Depot’s duty to construct the Home Depot was conditioned on the plaintiff’s obtaining all ‘‘final approvals, ’’ including all permits, licenses, variances, and approvals necessary for the construction and operation of the development, by the deadline of March 9, 2010. The contract provided that approvals would not be considered ‘‘final approvals’’ thereunder until they ‘‘[are] received and are valid, irrevocable, unqualified and unconditioned (except for such qualifications and/or conditions that are acceptable to Home Depot in its sole and absolute discretion), and are no longer subject to appeal or litigation . . . .’’

         The defendants objected to the proposed development for environmental reasons. In the petitions to intervene filed by Montigny and Batchelder, the defendants claimed, inter alia, that the proposed site for the Home Depot was located three hundred feet from the

         Walker Reservoir, a source of public drinking water, and that the construction and operation of the Home Depot was ‘‘unreasonably likely to result in the unreasonable disruption, pollution, impairment and destruction of the ...


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