April 18, 2016
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).
F. Sullivan, for the appellees (named defendant et al.).
J. Arcata III, with whom, on the brief, was Daniel P.
Scapellati, for the appellee (defendant James D. Batchelder).
M. Alfin and Cristin E. Sheehan, with whom, on the brief, was
Robert W. Cassot, for the appellee (defendant Amy
A. Slatas, for the appellee (defendant Ann Letendre).
Jeffrey G. Schwartz, for the appellee (defendant John
Christopher P. Kriesen, for the appellee (defendant Deborah
Alvord, Sheldon and Mihalakos, Js.
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.
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.
the pendency of the mandamus action and the administrative
appeal, Montigny filed motions, pursuant to [General
Statutes] § 22a-19 (a),  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.
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
TWO APPEALS [ENTITLED DIAMOND 67, LLC v.
PLANNING & ZONING COMMISSION]
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.
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.
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.
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.
APPEAL, ENTITLED BATCHELDER v. PLANNING &
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.
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.,
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
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 . . . .’’
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
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 ...