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Wellswood Columbia, LLC v. Town of Hebron

Supreme Court of Connecticut

November 7, 2017

WELLSWOOD COLUMBIA, LLC, ET AL.
v.
TOWN OF HEBRON

          Argued January 25, 2017

          Kerry M. Wisser, with whom, on the brief, was Sarah Black Lingenheld, for the appellants (plaintiffs).

          Thomas R. Gerarde, with whom, on the brief, was Emily E. Holland, for the appellee (defendant).

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js. [*]

         Syllabus

         The plaintiffs, who owned property in a town adjoining the defendant town, commenced the present action seeking to recover damages for, inter alia, a temporary taking, temporary nuisance, and tortious interference with business expectancies after the defendant's Board of Selectmen closed the road that provided the only access to the plaintiffs' property. The plaintiffs previously commenced an action seeking a temporary and permanent injunction, and the trial court rendered judgment in favor of the defendant. The plaintiffs appealed from that judgment to this court, which concluded that the defendant had exceeded its authority in closing the road and remanded the case to the trial court with direction to render judgment in favor of the plaintiffs. In the present action, the defendant moved for summary judgment on the basis of res judicata. The trial court granted the motion, concluding that the damages claims arose out of the same operative facts as the claim for injunctive relief in the first action. The plaintiffs appealed, claiming that the trial court incorrectly determined that their damages claims in the present action were barred by the principles of res judicata.

         Held:

         1. The plaintiffs' argument that their takings claim did not accrue and thus could not have been brought until after the injunction had been issued in the first action was unavailing; a temporary takings claim accrues when the regulatory action that is alleged to have effected the taking becomes final, and the accrual of the plaintiffs' takings claim was not postponed for res judicata purposes by virtue of the fact that the extent of their damages was uncertain because the permanent or temporary nature of the taking was unknown, as it was clear at the time the road was closed that the plaintiffs had sustained some damages.

         2. The road closure did not constitute a temporary nuisance or continuing wrong such that the plaintiff's damages claim fell within the exception to res judicata for continuing or recurrent wrongs: the plaintiffs did not allege that the defendant committed additional, wrongful acts during or subsequent to the injunction action but, rather, claimed that they were entitled to recover damages on the basis of the defendant's single, wrongful act of closing the road; moreover, even if the road closure was properly characterized as a nuisance, because it was the sort of harm that the plaintiffs were required to presume would continue indefinitely, it would have been a permanent nuisance for which the cause of action would have accrued upon the closure of the road.

         3. The trial court properly granted the defendant's motion for summary judgment with respect to the plaintiffs' claim for tortious interference with business expectancies, there having been no genuine issue of material fact as to whether the plaintiffs sustained losses prior to the commencement of the first action; the plaintiffs having lost access to their property and having presented expert testimony in the first action regarding the diminution in value of that property, it was apparent that the plaintiffs had suffered immediate and cognizable losses resulting from the closure of the road, and, therefore, the trial court properly concluded that the claim for tortious interference with business expectancies could have been brought in the prior action.

         4. The policies underlying res judicata strongly supported the doctrine's application in the present case, as allowing this case to proceed would run counter to the minimization of repetitive litigation, the promotion of judicial economy, and repose to the parties: although further proceedings as to the damages claims would have been required following this court's reversal of the trial court's judgment in the first action, those proceedings would have concluded several years ago and would have conserved the considerable resources expended by the parties and the court in that time; moreover, the plaintiffs would have been aggrieved for purposes of an appeal even if they had requested both injunctive relief and damages in the first action and the trial court denied their request for an injunction but awarded damages.

         Procedural History

         Action to recover damages for the defendant's allegedly improper temporary closure of a public road, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the case was removed to the United States District Court for the District of Connecticut, which retained jurisdiction over certain of the plaintiffs' claims and remanded certain of the plaintiffs' claims to the Superior Court in the judicial district of Hartford; thereafter, the court, Elgo, J., granted the defendant's motion for summary judgment and rendered judgment thereon, from which the plaintiffs appealed. Affirmed.

          OPINION

          PALMER, J.

         In Wellswood Columbia, LLC v. Hebron, 295 Conn. 802, 804-805, 825, 992 A.2d 1120 (2010) (Wellswood I), this court reversed the judgment of the trial court, which denied the application of the plaintiffs, Wellswood Columbia, LLC (Wellswood), and its managing partner, Ronald Jacques, for a permanent injunction barring the defendant, the town of Hebron (town), [1] from closing a road that provided the sole existing access to a property that Wellswood owned in the adjoining town of Columbia. Shortly after the trial court issued the injunction upon remand from this court, the plaintiffs commenced the present action against the town seeking damages for, inter alia, a temporary taking, temporary nuisance and tortious interference with the plaintiffs' business expectancies. The trial court, Elgo, J., granted the town's motion for summary judgment on the ground that the plaintiffs' claims were barred by the doctrine of res judicata because they arose out of the same operative facts as the plaintiffs' claim for injunctive relief and, therefore, should have been brought in Wells-wood I. On appeal, [2] the plaintiffs claim that the trial court incorrectly determined that their claims in the present action are barred by the principles of res judicata. We disagree and, accordingly, affirm the judgment of the trial court.[3]

         I

         FACTS AND PROCEDURAL HISTORY

         This court's opinion in Wellswood I sets forth the following relevant facts and procedural history. ‘‘In early 2004, the plaintiffs were considering the purchase of the property, which consisted of approximately 188 acres of land in the town of Columbia, for purposes of constructing a six phase residential retirement community. The only . . . existing access to the property [was] Wellswood Road in Hebron, [4] which runs from Route 66 to the town line between Hebron and Columbia. At that point, Wellswood Road becomes Zola Road, which continues into the property and terminates in a dead end. . . .

         ‘‘Because the only access to the property was by way of Wellswood Road, the plaintiffs requested a meeting with Hebron town officials to discuss the proposed development. During a meeting on April 21, 2004, Hebron town officials expressed several concerns about the proposed development, including concerns about storm water runoff from Wellswood Road, the adequacy of the water supply and the feasibility of septic services. The parties also discussed whether access to the property would be through private or public roads. . . . Hebron town officials indicated that, because the sole access to the development, at least initially, would be Wellswood Road, the development did not comply with that town's subdivision regulations.

         ‘‘After several additional meetings with the Hebron town officials to discuss the development, Wellswood purchased the property in August, 2004, and decided to go forward with its development plans despite knowing of [those] concerns. In October, 2004, the plaintiffs began the subdivision approval process in Columbia. On December 9, 2004, Paul Mazzaccaro, then the town manager for Hebron, sent a letter to the Columbia [P]lanning and [Z]oning [C]ommission in which he raised several concerns regarding the proposed development. Mazzaccaro stated that, as depicted in the plans that the plaintiffs had submitted, the proposed development ‘never could have access to other . . . development [in Columbia] or be connected to the present Columbia street system.' He requested that future plans provide for such connection. Thereafter, the plaintiffs met separately with officials of both towns and it was determined that Mazzaccaro's letter had been based on outdated plans. Later subdivision plans showed several proposed new streets running from Zola Road to the property line. None of these streets, however, connected with existing roads in Columbia.

         ‘‘Over the next several months, the plaintiffs continued the subdivision approval process in Columbia. On September 13, 2005, the Columbia [P]lanning and [Z]oning [C]ommission conducted a public hearing on the proposed subdivision. Several town officials from Hebron attended the hearing and voiced concerns over the remote location of the subdivision, the difficulty of responding to emergencies at that location, the effect of additional traffic on the safety of Wellswood Road and the increased cost to Hebron of maintaining the road and providing emergency services.

         ‘‘On October 6, 2005, the Hebron [P]lanning and [Z]oning [C]ommission held a special meeting and recommended closing and barricading Wellswood Road at the town line. The Hebron [B]oard of [S]electmen adopted the recommendation that night. Thereafter, the plaintiffs brought [an] action seeking a temporary and permanent injunction to prevent [Hebron] from closing Wellswood Road. After the plaintiffs filed the action, [Hebron] . . . posted a ‘road closed' sign at the end of Wellswood Road. [Hebron] then filed a motion to dismiss the action for lack of subject matter jurisdiction, claiming, inter alia, that the plaintiffs' lacked standing, which the trial court, Peck, J., denied.

         ‘‘In April, 2006, the town of Columbia approved the plaintiffs' subdivision application. The parties subsequently entered into a stipulation for a temporary injunction pursuant to which the town of Hebron was enjoined from obstructing the plaintiffs' use of Wells-wood Road for access to their property pending resolution of the action. Thereafter, the action was tried to the court, Hon. Lawrence C. Klaczak, judge trial referee . . . .'' (Footnotes altered.) Wellswood Columbia, LLC v. Hebron, supra, 295 Conn. 805-808.

         On July 21, 2008, the trial court issued a memorandum of decision in which it concluded, inter alia, that the plaintiffs were not entitled to a permanent injunction because they had failed to demonstrate that they were without an adequate remedy at law or that they would suffer irreparable harm in the absence of an injunction.[5]Wellswood Columbia, LLC v. Hebron, Superior Court, judicial district of Tolland, Docket No. TTD-CV-05-4003914-S (July 21, 2008) (46 Conn.L.Rptr. 69, 76), rev'd, 295 Conn. 802, 992 A.2d 1120 (2010). In reaching its determination, the trial court noted that ‘‘the plaintiffs have argued that they have suffered irreparable harm because [the town's] actions have injured them in such a way that money damages cannot compensate them. However, the plaintiffs have contradicted this position through the evidence they provided at trial, namely, the expert testimony of their appraiser. While this fact may preclude them from seeking injunctive relief, it does not prevent them from seeking money damages. Yet, in order to recover such money damages . . . the plaintiffs must show a total and permanent loss of the right of access to public roads, and presently the plaintiffs have failed to prove such a loss based on the evidence presented at trial.'' (Emphasis omitted; internal quotation marks omitted.) Id., 74.[6]

         ‘‘Furthermore, the plaintiffs have not demonstrated that they are without an adequate remedy at law. [On the basis of] their allegations, the plaintiffs could have sought damages based on a taking[s] theory of recovery, yet they chose not to seek such a remedy in their prayer for relief or otherwise during the course of this litigation. While both parties provided expert appraisal testimony at trial, each [appraiser] provided significantly different opinions regarding the diminution of value resulting from the closure of Wellswood Road, such evidence was presented with respect to the issue of irreparable harm, not money damages. This court disagrees with the plaintiffs' assertion that the availability of money damages is not relevant to determining whether an adequate remedy at law exists. . . . Based on the expert appraisal testimony of the parties, the legal remedy of money damages would be available to the plaintiffs . . . as each appraiser testified to specific estimates of economic loss that would result from the closure of Wellswood Road. Because both parties provided expert testimony that offered specific amounts of compensable injury, the court finds that the plaintiffs have not sufficiently demonstrated that they are without an adequate remedy at law, and as such, an injunction should not issue in the present action.'' Id.

         Finally, the trial court observed that ‘‘the plaintiffs argue in their [post trial] brief that, should the court find [that] injunctive relief is not the proper remedy . . . they are entitled to money damages and a temporary injunction until such damages are paid . . . .'' Id., 76 n.2. The court explained, however, that ‘‘the plaintiffs have not provided sufficient evidence on this issue. In fact, this alternative theory of recovery was never brought up in any of the plaintiffs' pleadings, nor in their prayer for relief. Because they have failed to properly bring this issue before the court, the issue of money damages will not be addressed; the only issue presently before the court is whether the plaintiffs are entitled to injunctive relief.'' Id.

         On appeal to this court in Wellswood I, the plaintiffs challenged the trial court's denial of their request for a permanent injunction but not the court's denial of their request for damages. Specifically, the plaintiffs argued that the trial court ‘‘improperly denied their request for a permanent injunction barring the [town] from closing Wellswood Road because: (1) barring the road was an unreasonable and arbitrary exercise of police power; (2) equitable relief is an appropriate remedy for the destruction of access even without a showing of irreparable harm; (3) even if a showing of irreparable harm is required, the plaintiffs were irreparably harmed by the road closure because there is no other access to the property; (4) the road closure was inconsistent with the public policy underlying General Statutes § 13a-55; and [5] contrary to the trial court's finding, the plaintiffs cannot use the property for purposes other than the subdivision if the road is closed.'' (Footnote omitted.) Wellswood Columbia, LLC v. Hebron, supra, 295 Conn. 808-809. We agreed with the plaintiffs' first contention, concluding that the town had exceeded its authority in closing Wellswood Road; id., 809; and, therefore, that ‘‘the resolution of the [town's] [B]oard of [S]electmen to close and barricade Wells-wood Road was void ab initio . . . .'' Id., 824. Accordingly, we remanded the case to the trial court with direction to ‘‘render judgment in favor of the plaintiffs . . . voiding the . . . action of the [town's] [B]oard of [S]electmen adopting the recommendation of the [town's] [P]lanning and [Z]oning [C]ommission to close and barricade Wellswood Road.'' Id., 824-25.

         In reaching our determination, we rejected the town's contention that the plaintiffs were not aggrieved by its decision to close the road, and, therefore, the plaintiffs lacked standing to bring the injunction action. Id., 809, 813. We concluded that the plaintiffs were classically aggrieved by the town's decision because they had established a specific personal and legal interest that had been injuriously affected by the town's actions. In particular, we explained that, ‘‘[i]n the course of exercising the powers expressly granted to it, such as the power to discontinue a road and to lay out a new road, a municipality may deprive a landowner of an access easement''; (footnotes omitted) id., 815; but, ‘‘in such cases, the elimination of the access easement constitutes a constitutional taking entitling the landowner to compensation.'' Id., 815 n.16.

         Shortly after the trial court issued the injunction, as directed by this court on remand, the plaintiffs brought the present action seeking damages for, inter alia, a temporary taking. In their complaint, the plaintiffs alleged that, as a result of the temporary closure of Wellswood Road, ‘‘[they] were prevented from developing the property and deprived of the economic value and income to be derived from the property and from [the] development. When the . . . [t]own . . . posted and maintained the ‘road closed' sign, it knew or should have known that any potential buyer with respect to [the residential retirement community] would become aware of the ‘road closed' sign, and that [the] sign would have the effect of driving away potential buyers with respect to [the residential retirement community].'' Thereafter, the town removed the case to the United States District Court for the District of Connecticut, and that court, Bryant, J., subsequently ...


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