Argued
September 25, 2018
Procedural
History
Action
to recover damages for, inter alia, fraud, and for other
relief, brought to the Superior Court in the judicial
district of Hartford, where the court, Wiese, J.,
granted the defendant's motion to dismiss and rendered
judgment thereon, from which the plaintiff appealed to this
court, which reversed the judgment of the trial court and
remanded the case for further proceedings; thereafter, the
court, Hon. A. Susan Peck, judge trial referee,
denied the plaintiff's motion for partial summary
judgment and granted the defendant's motion for summary
judgment and rendered judgment thereon, from which the
plaintiff appealed to this court. Affirmed.
Gwendolyn S. Bishop, for the appellant (plaintiff).
Kristan M. Maccini, for the appellee (defendant).
Keller, Elgo and Eveleigh, Js.
OPINION
ELGO,
J.
The
plaintiff, Villages, LLC, appeals from the summary judgment
rendered by the trial court in favor of the defendant, Lori
Longhi, who at all relevant times was a member of the Enfield
Planning and Zoning Commission (commission). The plaintiff
claims on appeal that the court improperly concluded that (1)
the defendant was not collaterally estopped from disputing
liability, and (2) the defendant was entitled to summary
judgment on the plaintiff's claims for fraudulent
misrepresentation and intentional interference with a
business expectancy. We affirm the judgment of the trial
court.
The
parties appear before this court for the third time. The
underlying facts previously were set out in Villages, LLC
v. Longhi, 166 Conn.App. 685, 142 A.3d 1162, cert.
denied, 323 Conn. 915, 149 A.3d 498 (2016). ‘‘In
May, 2009, the plaintiff filed an application for a special
use permit and an application to develop an open space
subdivision for residential housing on property it owned in
Enfield. . . . The commission held a public hearing on the
plaintiff's applications on July 9, 2009, July 23, 2009,
September 3, 2009, and October 1, 2009, and closed the public
hearing on October 1, 2009. . . . On October 15, 2009, the
commission met and voted to deny both applications. . . .
‘‘The
plaintiff filed an appeal with respect to each application
(zoning appeals). In its appeals, the plaintiff alleged that
the commission illegally and arbitrarily predetermined the
out come of each of its applications prior to the public
hearing and was motivated by improper notions of bias and
personal animus when it denied each of the applications. . .
.
‘‘Following
a trial, the court, Hon. Richard M. Rittenband,
judge trial referee, found that the plaintiff's
allegations of bias and exparte communication arose from the
actions of [the defendant], amember of the commission. More
specifically, the court found that [the defendant] took part
in the hearing on the plaintiff's applications, played a
significant role in the deliberations, and voted to deny the
plaintiff's applications. [The defendant] had been a
social friend of one of the plaintiff's owners, Jeannette
Tallarita, and her husband, Patrick Tallarita. . . . There
was a falling out among the friends, and the court found that
[the defendant] was biased against Patrick Tallarita, who
represented the plaintiff at the hearing before the
commission. The court also found that [the defendant]
engaged in an ex parte communication regarding the
applications. . . .
‘‘The
court found two instances of conduct by the defendant that
gave rise to the plaintiff's claim of bias against her,
only one of which was relevant tothe zoning appeals. . . . In
the incident described by the court, the defendant had stated
that she wanted [Patrick Tallarita] to suffer the same fate
of denial by the commission that she had suffered. . . . At
trial, Anthony DiPace testified that [the defendant] had
stated to him that the commission, when it previously
considered an application that she had submitted, had screwed
her and treated her unfairly when it denied that application.
She was unhappy with [Patrick] Tallarita, who was then mayor,
because he did not intervene on her behalf. She stated in the
presence of DiPace that she wanted [Patrick] Tallarita to
suffer the same fate, i.e., that the commission deny the
plaintiff's applications. [Patrick] Tallarita did not
become aware of [the defendant's] statement regarding the
fate of the plaintiff's applications until after the
commission had closed the public hearing [on the
plaintiff's applications]. The court found that [the
defendant's] comments were blatantly biased [against
Patrick] Tallarita and should not be tolerated. The court
also found that it had not been possible for the plaintiff to
bring [the defendant's] comments regarding [Patrick]
Tallarita to the attention of the commission because he
learned of them after the hearing had closed and the
commission had denied the plaintiff's applications.
‘‘Credibility
was a deciding factor in the court's decision regarding
[the defendant's] ex parte communication. [Patrick]
Tallarita, DiPace, and Bryon Meade testified during the
trial. The court found that each of the men was a credible
witness. [The defendant] also testified at trial, but the
court found that her testimony was filled with denials of the
allegations and concluded that her comments did not ring
true. The court found that Meade, a representative of the
Hazardville Water Authority, testified with confidence that
[the defendant] had met with him in person regarding the
plaintiff's applications during the first week of
October, 2009. [The defendant] testified, however, that Meade
must have been confused because she met with him regarding
another property. The court stated that [the defendant's]
testimony was just not credible.
‘‘In
addressing the plaintiff's claim that [the defendant]
improperly engaged in ex parte communications with Meade, the
court noted that [o]ur law clearly prohibits the use of
information by a municipal agency that has been supplied to
it by a party to a contested hearing on an ex parte
basis. . . . The court found that it was clear that [the
defendant] had an ex parte communication with Meade. Once the
plaintiff had proven that the ex parte communication had
occurred, the burden shifted to the commission to demonstrate
that such communication was harmless. . . . The court found
that the commission had not met its burden to prove that [the
defendant's] ex parte communication was harmless. . . .
‘‘The
court reviewed the transcript of the commission's October
15, 2009 meeting when it considered the plaintiff's
applications. It found that the transcript was twenty-three
pages long and that [the defendant's] comments appeared
on every page but one, and that on most pages, [the
defendant's] comments were the most lengthy. Her comments
raised many negative questions about the plaintiff's
applications. Moreover, in offering her comments, she cited
her experience as an appraiser. The court found that [the
defendant] dominated the meeting and that she intended to
have a major effect on the commission's deliberations and
subsequent votes. The court found ...