Vills., LLC v. Longhi

187 Conn.App. 132

201 A.3d 1098

VILLAGES, LLC

v.Lori LONGHI

AC 40263

Appellate Court of Connecticut.

Argued September 25, 2018

Officially released January 15, 2019

Gwendolyn S. Bishop, Windsor Locks, for the appellant (plaintiff).

Kristan M. Maccini, Hartford, for the appellee (defendant).

Keller, Elgo and Eveleigh, Js.

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 outcome 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 ex parte communication arose from the actions of [the defendant], a member 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 to the 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 clear and egregious bias on [the defendant's] part, and that her impact on the commission's deliberations and votes alone were reason to sustain the plaintiff's appeals....

"Judge Rittenband concluded that, on the basis of the bias [the defendant] demonstrated against the plaintiff and her ex parte communication with Meade , along with her biased, aggressive, and vociferous arguments against the applications on October 15, 2009, the commission's action was not honest, legal, and fair. The court therefore sustained the plaintiff's appeals and remanded the matter to the commission for further public hearings .... The commission appealed, and this court affirmed the judgments of the trial court.... The commission's appeals to our Supreme Court were dismissed....

"The plaintiff commenced the present action on October 1, 2012. The two count complaint against the defendant alleged intentional fraudulent misrepresentation and intentional tortious interference with [a] business expectancy. The plaintiff alleged that it owns land in Enfield and that it had filed certain applications with the commission, seeking to develop the land. At all times relevant, the defendant was a member of the commission and engaged in ex parte communication with respect to the plaintiff's applications , yet participated in the public hearing in which the commission denied the plaintiff's applications.

"The defendant denied the material allegations of the complaint and alleged three special defenses as to each count, including that the action was barred by the doctrines of governmental immunity and absolute immunity. The plaintiff denied each of the special defenses.

"In December, 2013, the defendant filed a motion that the court either dismiss the plaintiff's cause of action or render summary judgment in her favor." (Citations omitted; emphasis in original; footnotes omitted; internal quotation marks omitted.) Id., 688–93, 142 A.3d 1162. In January, 2014, the plaintiff filed a motion for partial summary judgment as to liability only, arguing that the defendant was collaterally estopped from relitigating the issue of whether she was impermissibly biased against the plaintiff or whether she gathered ex parte evidence. As such, the plaintiff argued, there was no genuine issue of material fact as to the defendant's liability for its claims of tortious interference with a business expectancy and fraudulent misrepresentation.

In its May 7, 2014 memorandum of decision, the court granted the defendant's motion to dismiss, but declined to address either the plaintiff's motion for partial summary judgment or the defendant's motion for summary judgment on the ground that it lacked subject matter jurisdiction. "The court concluded that the commission was acting in a quasi-judicial capacity when it considered the plaintiff's applications and, therefore, its members were protected by the litigation privilege, a subset of absolute immunity." Id., 695–96, 142 A.3d 1162.

"The plaintiff appealed, claiming that the court erred in determining that it lacked subject matter jurisdiction ...." Id., 696, 142 A.3d 1162. This court reversed the decision of the trial court, holding that qualified immunity, rather than absolute immunity, applied to the defendant, and remanded the case for further proceedings. Id., 707, 142 A.3d 1162. On remand, in its March 6, 2017 memorandum of decision, the trial court denied the plaintiff's motion for partial summary judgment and granted the...