Golden v. Hamer

Full title: WILLIAM GOLDEN ET AL. v. CHRISTOPHER HAMER ET AL

Court: Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford

Date published: Aug 25, 2009

2009 Ct. Sup. 14458 (Conn. Super. Ct. 2009)

Opinion

No. FST CV 085008396S

August 25, 2009

MEMORANDUM OF DECISION RE MOTION TO DISMISS #103

PAVIA, J.

Factual Background

On August 12, 2008, the plaintiffs, William Golden and Katherine Golden, filed a complaint against the defendants, Christopher Hamer (Hamer), and his two single-member limited liability companies, Oakview Housing Trust, LLC (Oakview Trust), and Oakview Capital Partners, LLC (defendants).¹ The complaint alleges the following facts. The plaintiffs are residents of Darien, Connecticut. Hamer is a Michigan citizen who purchased a parcel in Darien (Oak Crest Lot) in the summer of 2004. Oak Crest Lot was once part of a larger parcel which had been subdivided. In the fall of 2006, Hamer sought variance of the Oak Crest Lot for construction of a subdivision. Alternatively, the defendants proposed an affordable housing complex for low and moderate income families. To this end Hamer circulated petitions and organized a meeting between neighboring homeowners. Thereafter, Oakview Trust filed an application with the Darien Planning and Zoning Commission and the Darien Environmental Protection Commission seeking approval of the proposed construction. The plaintiffs allege that the defendants have "willfully and maliciously" threatened to put up affordable housing on the Oak Crest Lot, without any intention of ever actually building the Oak Crest Housing Project, for the purpose of blackmailing the plaintiffs into acquiescing to the subdivision. The plaintiffs further assert that the defendant made changes to the property which resulted in torrents of surface and storm waters being diverted thereby causing severe erosion and property damage to neighboring land. As a result, the plaintiffs allege that they have sustained an ascertainable loss through the reduction in value of their property, as well as losses to their real and personal property.

1 The plaintiff also named five unknown defendants including; John Doe 1, John Doe 2, John Doe 3, John Doe 4, and John Doe 5. Furthermore, although the name of the defendant on the return is labeled as "Christopher J. Hammer" in accordance with the parties arguments, hereinafter, he shall be referred to as Hamer.

Count one of the complaint claims unfair and deceptive acts on the part of the defendants in violation of Connecticut's Unfair Trade Practices Act (CUTPA), General Statutes § 42-110, et seq.; count two claims unfair and deceptive trade practices in violation of common law;² count three asserts property damage; count four claims that the plaintiffs are entitled to a remedy under the Connecticut Environmental Protection Act, General Statutes § 22a-14, et seq.; counts five through ten claim tortious interference with a business expectancy, intentional infliction of emotional distress, negligent infliction of emotional distress, civil extortion, civil conspiracy to intentionally and negligently inflict emotional distress, and nuisance, respectively. Count eleven claims that the defendants violated the Connecticut Water Pollution Control Act, General Statutes § 22a-416 et seq., specifically § 22a-427. The defendants have filed a motion to dismiss the entire complaint, as well as all eleven counts of the plaintiffs' complaint, individually.³

2 In their memorandum of law in opposition to the motion the plaintiffs withdrew count two.

3 On February 17, 2009, the plaintiffs filed a supplemental complaint. Nevertheless, `[o]nce the question of lack of [subject matter] jurisdiction of a court is raised [it] must be disposed of no matter in what form it is presented and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) D'Earmo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). Therefore, for the purposes of a motion to dismiss, the court will consider the original complaint as the operative complaint. See North Haven Construction Co. v. Banton Construction Co., Superior Court, judicial district of New Haven, Docket No. CV 99 0427298 (August 7, 2008, Bellis, J.) (46 Conn. L. Rptr. 221).

Legal Discussion

"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "Subject matter jurisdiction does not rest on the viability of the claims that a court is asked to adjudicate. Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Olympus Healthcare Group, Inc. v. Muller, 88 Conn.App. 296, 300, 870 A.2d 1091 (2005).

"The standard of review for a court's decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in the most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

Noerr-Pennington Doctrine

The defendants first move to dismiss the entire complaint on the ground that the court lacks jurisdiction because the defendants are immune from liability under the Noerr-Pennington doctrine. The defendants argue that the Noerr-Pennington doctrine grants immunity from liability for actions connected with legitimate municipal zoning and wetlands applications. The plaintiffs argue in opposition that the majority of their allegations are directed at conduct leading up to the filing of the land use applications making the Noerr-Pennington doctrine inapplicable. They additionally maintain that "[e]ven if the [doctrine] could somehow be deemed relevant, the Noerr decision itself recognized a wide-reaching exception for `sham' or fraudulent petitions of the sort filed by [the] [d]efendants."

The Noerr-Pennington doctrine was adopted by the Appellate Court in Zeller v. Consolini, 59 Conn.App. 545, 554, 758 A.2d 376 (2000). The doctrine "which originates from a trio of federal antitrust cases . . . and their progeny . . . shields from the Sherman [Antitrust] Act [ 15 U.S.C. § 1 et seq.] a concerted effort to influence public officials regardless of intent or purpose . . . The Noerr-Pennington doctrine has evolved from its antitrust origins to apply to a myriad of situations in which it shields individuals from liability for petitioning a governmental entity for redress . . . The doctrine is applicable to claims which [seek] to assign liability on the basis of the defendant's exercise of its first amendment rights." (Citations omitted; internal quotation marks omitted.) Blinkoff v. O G Industries, Inc., 113 Conn.App. 1, 7 n. 7, 965 A.2d 556 (2009).

Unlike the majority of cases which have applied the Noerr-Pennington doctrine since Zeller, the instant case does not involve a claim for damages strictly for petitioning activity directed at local government. The essence of the plaintiffs' claim is that the defendant has attempted to influence neighboring land owners by blackmailing them into acquiescing to the subdivision and that the defendants have made changes to their land which has resulted in damage to the plaintiffs' property. As such, the prosecution of this case does not threaten to chill the defendants' exercise of their first amendment rights to petition the government, and therefore the Noerr-Pennington doctrine has no application hereto. See Economy Petroleum Corp. v. Paulauskas, Superior Court, judicial district of Hartford, Docket No. CV 00 0822116 (August 1, 2003, Sheldon, J.) (35 Conn. L. Rptr. 347); see also Evans v. Testa Development Associates, Superior Court, judicial district of Hartford, Docket No. CV 01 0806425 (April 24, 2003, Booth, J.) (failure to plead claim based on petitioning of governmental agency makes Noerr-Pennington doctrine inapplicable). As such, the defendants' motion to dismiss the complaint based on the Noerr-Pennington doctrine is denied.

Primary Jurisdiction

The defendants move to dismiss the action on the ground that the complaint violates the doctrine of primary jurisdiction. The defendants argue that under the doctrine of primary jurisdiction the defendants' affordable housing applications fall within the expertise of municipal agencies and that the court should defer jurisdiction until agency opinions have been first rendered.

"The doctrine of primary jurisdiction is a rule of judicial administration created by court decision in order to promote proper relationships between the courts and administrative agencies charged with particular regulatory duties . . . Its basis is the concept that courts and administrative agencies are . . . collaborative instrumentalities of justice . . . Under this doctrine, a trial court has original subject matter jurisdiction of the questions raised in the complaint filed in that court." (Citations omitted; internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 574, 800 A.2d 1102 (2002). "Primary jurisdiction . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views." (Internal quotation marks omitted.) Jones v. Naugatuck Treatment Co., Superior Court, judicial district of Waterbury, Docket No. CV 98 014652 (January 23, 2001, Rogers, J.) (29 Conn. L. Rptr. 276, 277). "In deciding whether to apply the primary jurisdiction doctrine to a given case, a court must take into account the need for uniform decisions and the specialized knowledge of the agency involved." (Internal quotation marks omitted.) Waterbury v. Washington, supra, 260 Conn. 575. "Ordinarily, a court should not act upon subject matter that is peculiarly within the agency's specialized field without giving the agency an opportunity to apply its expertise, for otherwise parties who are subject to the agency's continuous regulation may become the victims of uncoordinated and conflicting requirements." Sharkey v. Stamford, 196 Conn. 253, 256, 492 A.2d 171 (1985). "As a threshold matter, of course, a court must find that the agency has jurisdiction over the issue presented." (Internal quotation marks omitted.) Waterbury v. Washington, supra, 260 Conn. 575.

In the present action the plaintiffs bring various common-law theories for unfair trade practices, infliction of emotional distress, tortious interference with a business expectancy, nuisance, negligence and conspiracy. The plaintiffs seek injunctive relief in addition to monetary compensation for property damage, financial loss to the value of their property and emotional distress, as well as punitive damages and attorney fees. The defendants cite neither a statutory nor regulatory provision and provide no case-law which indicates that these claims are under an agency's jurisdiction. Moreover, in this instance, the municipal agencies to which the defendant claims jurisdiction lack authority to grant the forms of requested relief. Jones v. Naugatuck Treatment Co., supra, 29 Conn. L. Rptr. 278; see Liss v. Milford Partners, Superior Court, complex litigation docket at Tolland, Docket No. X04 CV 04 4001734 (April 22, 2005, Sferrazza, J.) (39 Conn. L. Rptr. 216) (as DEP lacks the power to grant damages to compensate for loss of value caused by negligence, nuisance, trespass or strict liability, the doctrine of primary jurisdiction is inapplicable); McGill v. Mutual of Omaha Ins. Co., Superior Court, complex litigation docket at Middlesex, Docket No. X04 CV 04 0104343 (September 28, 2004, Quinn, J.) (agency authority does not extend to damages sought by the defendant). "[A] court may not refer a controversy within its jurisdiction to an agency under this doctrine where the agency itself lacks jurisdiction; the court's jurisdiction in such cases is exclusive." (Internal quotation marks omitted.) Waterbury v. Washington, supra, 260 Conn. 574.

Additionally, regarding count four, wherein the plaintiff requests declaratory and equitable relief pursuant to § 22a-16, this court has the power to grant equitable relief as required to "protect the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction." Jones v. Naugatuck Treatment Co., supra, 29 Conn. L. Rptr. 278. As such, the plaintiffs are not required to solely seek agency relief for such detriments. Moreover, the defendants concede in their reply memorandum that "the local zoning and wetlands applications . . . have been denied by the Darien Planning and Zoning Commission and the Darien Environmental Protection Commission."

Finally, regarding count eleven, wherein the plaintiffs claim that the defendants violated the Connecticut Water Pollution Control Act "[t]he Superior Court has exclusive jurisdiction to enforce the Connecticut Water Pollution Control Act." (Internal quotation marks omitted.) Keeney v. Merit Dry Cleaners, Inc., Superior Court, judicial district of Hartford, Docket No. CV 94 0537705 (March 13, 1996, Schimelman, J.) (16 Conn. L. Rptr. 429, 434). As the court has subject matter jurisdiction over the claims raised in this action, the doctrine of primary jurisdiction does not necessitate or compel this court to refer the matter elsewhere. The motion to dismiss the complaint on this ground is, therefore, denied.

CT Page 14463

Exhaustion of Administrative Relief

The defendants further assert that the "doctrine of exhaustion of administrative remedies requires dismissal of the complaint." The defendants argue that because "the complaint directly implicates and seeks to enjoin the defendants' pending zoning and wetlands applications, [the] plaintiffs must abide by the administrative procedures provided by §§ 8-30g and 22a-34 . . .: They contend that "[b]efore the plaintiffs seek a judicial remedy, these statutory schemes require municipal agencies first to render a decision on the applications." The plaintiffs argue in opposition that our Supreme Court "in Waterbury v. [Washington], 260 Conn. 506, 800 A.2d 1102 (2002) held that the exhaustion of administrative remedies doctrine does not apply to claims under [CEPA]."

"Because the exhaustion doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the plaintiffs' claim." Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556, 529 A.2d 66 (1987). "The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law . . . The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted . . . Where a statutory requirement of exhaustion is not explicit, courts are guided by [legislative] intent in determining whether application of the doctrine would be consistent with the statutory scheme . . . Consequently, [t]he requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief." (Internal quotation marks omitted.) BRT General Corp. v. Water Pollution Control Authority, 265 Conn. 114, 123, 826 A.2d 1109 (2003). "[T]he exhaustion doctrine is based on a judicial determination of a legislative intent that in certain cases the courts do not have initial subject matter jurisdiction because the legislature has committed the initial resolution of the matters in question to an administrative agency. Therefore, this doctrine does not apply when the legislature determines, by appropriate legislation, that a court may exercise subject matter jurisdiction despite the fact that there also may be administrative procedures available that would, absent such legislation, normally deprive the court of jurisdiction." Waterbury v. Washington, supra, 260 Conn. 530.

Regarding count one, the defendants have not demonstrated that CUTPA contains either an express exhaustion requirement or is based on an administrative scheme. Section 42-110g(a) of CUPTA provides, in relevant part, that "[a]ny person . . . may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business . . ." (Emphasis added.) As the plaintiffs may bring a claim pursuant to § 42-110, the defendants' motion to dismiss is denied with respect to count one. See Ciarleglio v. Fireman's Fund Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 900276028 (December 16, 1993, Fuller, J.) (10 Conn. L. Rptr. 579) (concluding that CUTPA does not have an exhaustion requirement).

Regarding counts three, and five through ten, a majority of Superior Court judges have concluded that the exhaustion requirement applies "only to statutory claims." (Internal quotation marks omitted.) Cost Management Incentives, Inc. v. London-Osborne, Superior Court, judicial district of New Haven, Docket No. CV 02 0463081 (December 5, 2002, Munro, J.); see, e.g., Brightly v. Abbott Terrace Health Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 98 0148584 (February 27, 2001, Rogers, J.) (29 Conn. L. Rptr 102) (treating the plaintiff's common-law counts, alleging wrongful termination, intentional infliction of emotional distress and breach of the implied covenant of good faith and fair dealing separately from the plaintiff's statutory count); Olcun v. Misiewicz, Superior Court, judicial district of Tolland, Docket No. CV 98 67084 (July 31, 2000, Sferrazza, J.) (applying the exhaustion doctrine only to count alleging a statutory violation); Giantis v. American Mortgage Services, LP, Superior Court, judicial district of Middletown, Docket No. CV 00 0092711 (April 24, 2002, Shapiro, J.) (32 Conn. L. Rptr. 98) (doctrine of exhaustion of administrative remedies does not apply to common-law causes of action); Matejek v. New England Technical Institute of Connecticut, Inc., Superior Court, judicial district of New Haven, Docket No. CV 404320 (April 7, 1998, Blue, J.) (counts alleging intentional infliction of emotional distress are not implicated by exhaustion requirements).

Finally, with regard to count four, our Supreme Court in Waterbury v. Washington supra, 260 Conn. 537, "determined . . . on the basis of the plain language and legislative history of [CEPA] — in particular . . . § 22a-18(b), which allows the trial court to remand an action to an administrative agency that has primary jurisdiction over the environmental question — that `[the act] does not embody the exhaustion doctrine as a subject matter jurisdictional limit on the court's entertainment of an action under it.' [ Waterbury v. Washington, supra, 260 Conn. 537]. [The court] concluded, therefore, that the defendants were not required to exhaust their remedies . . . before bringing suit under § 22a-16." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 493-94, 815 A.2d 1188 (2003). Accordingly, the plaintiffs are not required to exhaust their administrative remedies before bringing suit under § 22a-16 and the defendants' motion to dismiss on this ground is therefore denied.

Damages

The defendants also move to dismiss all counts on the ground that the plaintiffs "have not suffered, and will not suffer, any damages." Citing to Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 646, 904 A.2d 149 (2006), the defendants argue that "[w]hen damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty." They contend that the plaintiffs' "alleged damages are based on inchoate fears of conduct that has not yet been approved by the permitting agencies." The plaintiffs have not countered these arguments.

"Premature claims are non-justiciable." Citicorp Mortgage, Inc. v. Ferrato, Superior Court, judicial district of New Haven, Docket No. CV 97 0488915 (December 22, 1998, Robinson, J.) (24 Conn. L. Rptr. 25, 27). "[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant . . . A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction . . . [T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." (Citations omitted; emphasis added; internal quotation marks omitted.) Cadle Co. v. D'Addario, 111 Conn.App. 80, 82-3, 957 A.2d 536 (2008).

In the present case, all of the plaintiffs' allegations center around claims of unfair and deceptive acts and practices by the defendants causing residential character loss to the neighborhood resulting in a consequential diminishment in property value. The plaintiffs further contend that the removal of trees and vegetation, and the making of physical changes to the Oak Crest Lot have resulted in the diversion of surface and storm waters onto the plaintiffs' property causing substantial damage to their real and personal property and causing degradation, pollution, contamination and increased flooding hazards. These allegations demonstrate actual injury, ascertainable diminution in property value, property damage and emotional distress, as opposed to hypothetical or contingent injury. Accordingly, the defendants' motion to dismiss on this ground is denied.

Count One — CUTPA

The defendants move to dismiss count one contending that the plaintiffs have failed to allege a business relationship as is required under CUTPA. The defendants additionally assert that the lawful filing of an application pursuant to General Statutes § 8-30g can not qualify as an unfair act within the confines of CUTPA. The plaintiffs argue in opposition that the defendants' threat to proceed with an affordable housing application is unfair, immoral, unethical, and oppressive as it was undertaken by the defendants with knowledge that it would adversely impact property values.

The essence of the defendants' claim is that the court lacks subject matter jurisdiction over count one, CUTPA, as the plaintiffs have failed to allege facts sufficient to grant them standing to bring such a claim. The issue of standing implicates a court's subject matter jurisdiction. If a party is found to lack standing the court is without subject matter jurisdiction to hear the controversy at issue. Frillici v. Westport, 264 Conn. 266, 280, 823 A.2d 1172 (2003). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action . . . Standing is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy . . ." (Citation omitted; internal quotation marks omitted.) Murphy v. Stamford, 115 Conn.App. 675, 677 (2009). "[T]he question of standing . . . implicates the court's subject matter jurisdiction. Appellate courts, as well as trial courts, must examine an issue implicating subject matter jurisdiction. The question of standing may be raised by any of the parties, or by the court, sua sponte, at any time during judicial proceedings." (Internal quotation marks omitted.) Connecticut Carpenters Benefit Funds v. Burkhard Hotel Partners II, 83 Conn.App 352, 355, 849 A.2d 922 (2004). "[A] court lacks discretion to consider the merits of a case over which it is without jurisdiction." (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 386, 973 A.2d 1229 (2009). "[W]hether a party has standing, based upon a given set of facts, is a question of law for the court . . . and in this respect the label placed on the allegations by the parties is not controlling." (Citation omitted.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 348, 780 A.2d 98 (2001). "A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised." (Internal quotation marks omitted.) Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 92, 971 A.2d 1 (2009); see Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 703, 894 A.2d 259 (2006) ("the question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case"). "It is axiomatic that aggrievement is a basic requirement of standing . . . If a party is found to lack [aggrievement], the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Soracco v. Williams Scotsman, Inc., supra, 292 Conn. 91. Either of two general types of aggrievement, namely, classical and statutory, will establish standing. "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Pond View, LLC v. Planning Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008).

"CUTPA has its own standing requirements . . . The act recognizes three categories of plaintiffs: consumers, competitors and other business persons affected by unfair or deceptive acts." (Internal quotation marks omitted.) Gilbert v. Beaver Dam Association of Stratford, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 00 374905 (July 24, 2001, Rush, J.). "Although privity, in the traditional contractual sense . . . may no longer be essential for standing under CUTPA, a claimant under CUTPA must possess at least some type of consumer relationship with the party who allegedly causes harm to him or to her." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 726-27, 627 A.2d 374 (1993). Furthermore, the relationship between the parties at issue must be characterized as competitive in an ordinary business sense. Ventres v. Goodspeed Airport, 275 Conn. 105, 157, 881 A.2d 937 (2005), cert. denied, U.S. 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).

CUTPA provides in relevant part: "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). In determining whether a practice violates CUTPA the courts are guided by the criteria set out in the Federal Trade Commission's "cigarette rule" and must look to "(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. 155.

In the present case, the plaintiffs have failed to allege any business or consumer relationship with the defendants. "[I]t strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any `trade' or `commerce.'" Jackson v. R.G. Whipple, Inc., supra, 225 Conn. 725-26. Moreover, "in describing the business relationship necessary for a plaintiff to have standing to assert a CUTPA claim, the cases indicate that a business person must have a direct commercial relationship with the defendant, or some other relationship with the defendant in a commercial marketplace, so that a nexus exists between this relationship and an ascertainable loss caused by the defendant's unfair or deceptive practices." Austrian v. United Health Group, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 05 4010357, (July 17, 2007, Stevens, J.) (43 Conn. L. Rptr. 852, 859). No such direct relationship exists in the present case. One's status as a neighboring landowner is independently insufficient to sustain a finding of a business relationship within the meaning of CUTPA. See Vivirito v. Firma, Inc., Superior Court, judicial district of New London, Docket No. CV 4102776 (August 29, 2006, Hurley, J.). As a plaintiff must have at least some business relationship with the defendant in order to state a cause of action under CUTPA, the defendants' motion to dismiss count one is granted. Pinette v. McLaughlin, 96 Conn.App. 769, 778 n. 9, 901 A.2d 1269, cert. denied, 280 Conn. 929, 909 A.2d 958 (2006).

Count Three — Interference with Surface Water Drainage

The defendants argue that the court lacks jurisdiction as to count three as "a claim of interference with surface water drainage" is not a recognized cause of action. They additionally argue that "the natural flow of water from the site based on topography long predates the existence of the plaintiffs' house, as well as the plaintiffs' subdivision lot."

In reliance on our Supreme Court's decision in Ferri v. Pyramid Construction Co., 186 Conn. 682, 443 A.2d 478 (1982), the plaintiffs argue in opposition that the reasonable use doctrine "restricts how a landowner may deal with surface water," and maintain that a landowner cannot use or improve land so as to increase the volume of the surface waters that may flow onto another's property.

The heading of a count is not dispositive of what cause of action is alleged. See Blardo v. General Security Indemnity Co. of Arizona, Superior Court, judicial district of Hartford, Docket No. CV 03 0829825 (September 28, 2004, Shapiro, J.) ("[t]he titles which a plaintiff assigns to his causes of action in his complaint are not determinative"). Instead, it is the language of the complaint itself that must be analyzed. See Sampiere v. Zaretsky, 26 Conn.App. 490, 494, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992) ("[b]ecause we are bound by the four corners of the plaintiff's complaint, we must examine the specific language to determine the particular causes of action alleged").

In the present case, the plaintiffs allege in their complaint that the defendants diverted torrents of storm and surface waters onto the plaintiffs' property causing erosion and contamination of the wetlands. Under the reasonable use doctrine "[a] landowner is under no duty to receive upon his land surface water from the adjacent properties, but in the use or improvement of it he may repel such water at his boundary. On the other hand, he incurs no liability by reason of the fact that surface water falling or running onto his land flows thence to the property of others in its natural manner. But he may not use or improve his land in such a way as to increase the total volume of surface water which flows from it to adjacent property, or as to discharge it or any part of it upon such property in a manner different in volume or course from its natural flow, to the substantial damage of the owner of that property." (Internal quotation marks omitted.) Ferri v. Pyramid Construction Co., supra, 186 Conn. 685-86.

General Statutes § 51-164s provides in relevant part: "The superior court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute." "Because the superior court is a court of general jurisdiction, it has subject matter jurisdiction over claims sounding in tort." Brewer v. Wilcox Trucking, Inc., Superior Court, judicial district of New Britain, Docket No. CV 97 0479546 (September 26, 1997, Stengel, J.). "The reasonable use doctrine, which is essentially a tort concept, focuses on the resulting interference with another's use and enjoyment of his land. In this regard, it is similar to the nuisance concept of tort law." (Internal quotation marks omitted.) Grippo v. Middletown Bible Church, Superior Court, judicial district of Middlesex, Docket No. CV 01 0095682 (September 9, 2004, Silbert, J.). Accordingly, the court has jurisdiction to hear this matter and the defendants' motion to dismiss count three is therefore denied.

Count Four — § 22a-16

The defendants move to dismiss count four asserting that the plaintiffs have failed to allege a colorable claim under § 22a-16, and that local land use applications are within the "exclusive domain" of the local land use agencies. The plaintiffs argue in opposition that the complaint alleges that the defendant's conduct in removing trees and shrubbery, and their use of a bulldozer and backhoe caused substantial changes to the wetlands and water quality, resulting in irreparable harm to the environment.

As previously stated, "[t]he issue of standing implicates [a] court's subject matter jurisdiction . . . [I]n the absence of standing the court lacks subject matter jurisdiction to determine the merits of the case . . ." (Citation omitted; internal quotation marks omitted.) Talenti v. Morgan Bro. Manhattan Storage Co., Inc., 113 Conn.App. 845, 851, 968 A.2d 933 (2009). "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 803, 970 A.2d 640 (2009).

Section 22a-16 provides in relevant part: "any person . . . may maintain an action . . . for declaratory and equitable relief against . . . any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . ." "Traditionally, citizens seeking to protect the environment were required to show specific, personal aggrievement to attain standing to bring a legal action . . . [CEPA] . . . however, waives the aggrievement requirement in two circumstances. First, [under § 22a-16] any private party . . . without first having to establish aggrievement, may seek injunctive relief in court for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . Second, [under § 22a-19(a)] any person or other entity, without first having to establish aggrievement, may intervene in any administrative proceeding challenging conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." (Citation omitted; internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, supra, 291 Conn. 803.

Our Supreme Court has stated that while "§ 22a-16 permits any private party . . . to seek injunctive relief for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . [the] invocation of [CEPA] is not an open sesame for standing to raise environmental claims with regard to any and all environmental legislation." (Internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Rocque, supra, 267 Conn. 116, 132, 836 A.2d 414 (2003). "It is settled that the existence of statutory standing depends on whether the interest sought to be protected by the [plaintiff] is arguably within the zone of interests to be protected or regulated by the statute . . . Under § 22a-16, standing . . . is conferred only to protect the natural resources of the state from pollution or destruction . . . Accordingly, all that is required to invoke the jurisdiction of the Superior Court under § 22a-16 is a colorable claim, by any person [or entity] against any person [or entity], of conduct resulting in harm to one or more of the natural resources of this state." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432, 829 A.2d 801 (2003). Therefore, the complaint "must set forth facts to support an inference that unreasonable pollution, impairment or destruction of a natural resource will probably result from the challenged activities unless remedial measures are taken." (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, supra, 291 Conn. 804.

In the present case, the plaintiffs allege that "[s]torm and surface waters flowing off of the Oak Crest Lot have already despoiled and silted the wetlands that are partially on the [plaintiffs'] property," and "[r]unoff from the Oak Crest Lot of surface and storm waters (after [the] [d]efendants' changes to that property had disrupted its normal drainage patterns) contributed to the severe flooding conditions in the Goodwives River Drainage Basin in the Spring of 2007." These allegations, in a light most favorable to the plaintiffs, support an inference that the defendants have unreasonably impaired or polluted the wetlands on the plaintiffs' property, as well as the drainage basin for the Goodwives River. As such, the defendants' motion to dismiss count four is denied.

Counts Five, Six and Seven — Tortious Interference with a Business Expectancy and Intentional and Negligent Infliction of Emotional Distress CT Page 14472

The defendants move to dismiss counts five, six and seven asserting that they have absolute immunity from any claims stemming from their municipal land use applications. The basis of the plaintiffs' claims is that the defendants, through their "immoral and unethical" conduct, have prevented the plaintiffs from selling or refinancing their home at or near its appraised value and have caused substantial emotional distress to the plaintiffs. The defendants argue that these claims implicate filings made in the context of a land use application, and that as municipal land use agencies operate in a quasi-judicial capacity the defendants are immune from liability. They additionally argue that the plaintiffs have failed to allege any of the required elements of these three counts. The plaintiffs counter that their claims are not based exclusively on the filing of municipal applications, but rather on a continuing course of conduct by the defendants.

"In Connecticut, parties to or witnesses before judicial or quasi-judicial proceedings are entitled to absolute immunity for the content of statements made therein." Field v. Kearns, 43 Conn.App. 265, 271, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996). The protection afforded by this doctrine serves to shield communications made in the course of a judicial proceeding so long as they are pertinent to the subject of the controversy at hand. Hopkins v. O'Connor, 282 Conn. 821, 830-31, 925 A.2d 1030 (2007). "[A]bsolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings. This objective would be thwarted if those persons whom the common-law doctrine was intended to protect nevertheless faced the threat of suit. In this regard, the purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity enjoyed by the state." Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005). As the doctrine of sovereign immunity implicates subject matter jurisdiction, it is a proper basis for granting a motion to dismiss. Vejseli v. Pasha, 282 Conn. 561, 572, 923 A.2d 688 (2007); see also Day v. Smith, Superior Court, judicial district of New Haven, Docket No. CV 07 4027999 (February 11, 2007, Bellis, J.) (absolute immunity implicates subject matter jurisdiction).

Our Supreme Court recently addressed whether a claim for interference with a business expectancy is subject to absolute immunity in Rioux v. Barry, 283 Conn. 338, 927 A.2d 304 (2007). In Rioux, the plaintiff claimed that the trial court improperly determined that the defendants were entitled to absolute immunity against the plaintiffs claims for vexatious litigation and intentional interference with contractual or beneficial relations. The Supreme Court concluded "that, in the context of a quasi-judicial proceeding, absolute immunity does not attach to statements that provide the ground for the tort of vexatious litigation, but does bar a suit alleging that those same statements constituted an intentional interference with contractual or beneficial relations." Id. 343.

"[W]hether a particular proceeding is quasi-judicial in nature, for the purposes of triggering absolute immunity, will depend on the particular facts and circumstances of each case." Craig v. Stafford Construction, Inc., 271 Conn. 78, 83-84, 856 A.2d 372 (2004). Our Supreme Court "has delineated several factors that assist in determining whether a proceeding is quasi-judicial in nature. These factors include whether the body has the power to: (1) exercise judgment and discretion; (2) hear and determine or to ascertain facts and decide; (3) make binding orders and judgments; (4) affect the personal property rights of private persons; (5) examine witnesses and hear the litigation of the issues on a hearing; and (6) enforce decisions or impose penalties . . . Further, it is important to consider whether there is a sound public policy reason for permitting the complete freedom of expression that a grant of absolute immunity provides." (Citation omitted; internal quotation marks omitted.) Id., 85. "The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. It includes, for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest. It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character." (Internal quotation marks omitted.) Morgan v. Bubar, 115 Conn.App. 603, 613-14 (2009).

Our Supreme Court has held that "[i]n ruling upon a site plan application, [a] planning commission acts in its ministerial capacity, rather than its quasi-judicial or legislative capacity." (Internal quotation marks omitted). Barbieri v. Planning Zoning Commission, 80 Conn.App. 169, 172, 833 A.2d 939 (2003). This is because "[a] zoning commission's authority in ruling on a site plan is limited. A site plan is filed with a zoning commission or other municipal agency or official to determine the conformity of a proposed building, use or structure with specific provisions of the zoning regulations . . . It is given no independent discretion beyond determining whether the plan complies with the applicable regulations." (Citation omitted; internal quotation marks omitted.) Id.; see Berlin Batting Cages, Inc. v. Planning Zoning Commission, 76 Conn.App. 199, 221, 821 A.2d 269 (2003).

In the present case, the plaintiffs allege that the defendants filed an application with the Darien Environmental Protection Commission for construction approval of the proposed subdivision. "A municipal planning commission, in exercising its function of approving or disapproving any particular subdivision plan, is acting in an administrative capacity and does not function as a legislative, judicial or quasi-judicial agency." King's Highway Associates v. Planning Zoning Commission, 114 Conn.App. 509, 514, 969 A.2d 841 (2009). This is so because "a planning commission has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance . . . A municipal planning commission, in exercising its function of approving or disapproving any particular subdivision plan, is acting in an administrative capacity and does not function as a legislative, judicial or quasi-judicial agency . . . When acting in its legislative capacity, in contrast, a planning commission's discretion is much broader than that of an administrative board "(Citations omitted; internal quotation marks omitted.) Pansy Road, LLC v. Town Plan Zoning Commission, 283 Conn. 369, 374-75, 926 A.2d 1029 (2007).

In this instance, however, the court need not definitively resolve whether the Commission was acting in an administrative versus a quasi-judicial role with regard to the defendants' application. This is so because the crux of the plaintiffs' allegations do not assert liability based on statements made within the confines of the subdivision application. Rather, they allege that the defendants "through their immoral, unethical, outrageous and scandalous acts and practices" have embarked on a "blackmail conspiracy" and thereby interfered with the plaintiffs' business expectancy. These claims are premised on what the plaintiffs assert was a deliberate despoliation of the defendants' property and purposeful creation of a nuisance which caused the value of the plaintiffs' home to decline. As such, it is evident that the plaintiffs' claims encompass a range of allegations outside the scope of the land use application itself. For all of the foregoing reasons, the court finds that absolute immunity would not bar prosecution of the instant matter.

Regarding the defendants' argument that the plaintiffs do not allege any of the required elements for the various causes of action, "Practice Book § 10-31 provides in relevant part: "[t]he motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter." A motion to dismiss serves a different function from a motion to strike, which is the motion to be used to "contest the legal sufficiency of the allegations of [the] complaint." Practice Book § 10-39. "A court deciding a motion to dismiss [however] must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Mercer v. Rodriquez, 83 Conn.App. 251, 255, 849 A.2d 886 (2004). In the present case, the defendants have not attacked the jurisdiction of the court, but instead the merits of the plaintiffs' claim. These counts all pose claims for liability on long recognized causes of action, or subject matter, over which the Superior Court has jurisdiction. The defendants have not cited any case law which indicates otherwise. Accordingly, the defendants' motion to dismiss counts five, six and seven is denied.

Count Eight — Civil Extortion and Undue Economic Distress

The defendants move to dismiss count eight on the ground that the plaintiffs have "invent[ed] a claim that does not exist The plaintiffs concede the issue of whether civil extortion is a recognizes tort under Connecticut law has not been addressed by the Connecticut Supreme Court, but suggest that it has been upheld elsewhere and should be permitted in this instance.

"A motion to strike is the proper procedural vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Rich v. Foye, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 065003443 (August 28, 2006, Cremins, J.) (44 Conn. L. Rptr. 184, 186). Accordingly, the defendants' motion to dismiss count eight is denied.

Counts Nine, Ten and Eleven — Civil Conspiracy to Intentionally and Negligently Inflict Emotional Distress, Nuisance and Negligence Per Se

The defendants move to dismiss counts nine, ten and eleven asserting that the plaintiffs have failed to properly plead the respective counts.

As previously stated, "[a] court deciding a motion to dismiss [however] must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Mercer v. Rodriquez, supra, 83 Conn.App. 255. In the present case, the defendants have not attacked the jurisdiction of the court, but instead the merits of the plaintiffs' claims. Accordingly, the defendants' motion to dismiss counts nine, ten and eleven is therefore denied.

Conclusion

The defendants' motion to strike is granted as to count one and is deified as to all other counts.