Opinion
No. FST CV 08 5008565
September 28, 2009
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT #110 #114
The issue before the court is whether summary judgment should be granted based on cross claims of res judicata, collateral estoppel and governmental immunity relating to litigation of a previous action in which a writ of mandamus was granted against the defendant. For the reasons articulated below, the court declines to grant summary judgment as to either party.
Procedural History
In March 2005, the plaintiff, along with his then co-owners, commenced an action against the defendant entitled, Savvidis v. Norwalk, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No CV 05 4004143 (August 8, 2007, Karazin, J.) ( Savvidis I). In separate counts the plaintiff sought a writ of mandamus and damages for the defendant's failure to issue a certificate of occupancy for a three-family dwelling. The plaintiff also alleged a third count in the nature of municipal estoppel. Following a court trial before Karazin, J., a decision was rendered in favor of the plaintiffs, granting the writ of mandamus. Specifically, as to count one the court ruled as follows: "[t]he court grants a writ of [m]andamus ordering the defendant to issue a [c]ertificate of [o]ccupancy for the [p]remises at 29 Bayview Avenue, Norwalk." Savvidis v. Norwalk, supra, Superior Court, Docket No. CV 05 4004143. As to count two, seeking damages, the court found for the defendant "based on the order in count one." Id. In count three the court ruled in favor of the defendant. Thereafter, the defendant appealed the judgment to the Appellate Court. This appeal was subsequently withdrawn after the plaintiffs successfully had the appellate automatic stay vacated. On May 29, 2008, and May 30, 2008, respectively, the defendant issued a certificate of zoning compliance and a certificate of occupancy.
On August 25, 2008, the plaintiff, Andreas Savvidis, commenced the current action by service of process against the defendant, the city of Norwalk ( Savvidis II). On December 15, 2008, the plaintiff filed a one-count amended complaint in which he alleges the following facts. The plaintiff is the owner of an apartment building located at 29 Bayview Avenue in Norwalk, Connecticut. In 1999, the apartment building was owned by the plaintiff along with Lambrini Savvidis and William Savvidis. On June 24, 1999, the defendant granted an application for zoning approval and zoning compliance to convert the apartment building into a three-family dwelling. At this time, the plaintiff also obtained an application for a building permit from the defendant. The plaintiff completed all of the requirements necessary for the issuance of a certificate of occupancy for a three-family dwelling and requested the defendant to issue one. In a letter dated April 27, 2004, the defendant, through its zoning commission, denied the issuance of the certificate of occupancy by referring to a stipulation of judgment that limited the subject premises to two-family dwelling use only.
The plaintiff, in alleging damages as a result of the delay in issuing the certificate of occupancy, claims that he was unable to rent the property from April 27, 2004, until May 30, 2008. The plaintiff contends that this delay interfered with his prospective economic expectation, business opportunities and advantageous business relationships. The plaintiff claims that by virtue of res judicata liability has already been determined against the defendant.
On February 19, 2009, the plaintiff filed a motion for summary judgment as to liability. The plaintiff also filed a memorandum of law, accompanied by affidavits and other supporting documents. On April 20, 2009, the defendant filed a cross motion for summary judgment, a memorandum of law in opposition to the plaintiff's motion for summary judgment and in support of the defendant's motion for summary judgment as well as supporting documents thereto.
Legal Discussion
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
The "party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 319, 901 A.2d 1207 (2006). "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Practice Book § 17-46.
The plaintiff moves for partial summary judgment as to liability on the ground that there is no genuine issue of material fact with respect to liability. It is the plaintiff's position that liability has already been determined in the granting of the writ of mandamus in Savvidis I, and, therefore, by virtue of the doctrine of res judicata and/or collateral estoppel, summary judgment should be granted. The defendant moves for summary judgment on two grounds. First it is the defendant's assertion that its liability for damages is barred by the doctrine of res judicata as the plaintiff's claims have already been fully litigated. Second, the defendant asserts that it is entitled to judgment as a matter of law on the basis of municipal immunity as codified in General Statutes § 52-557n(b)(7).
"Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim . . . Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit . . . Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment." (Citation omitted; internal quotation marks omitted.) Byars v. Berg, 116 Conn.App. 843, 846 (2009). "An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered." (Citation omitted.) Powell v. Infinity Ins., Co., 282 Conn. 594, 600-01, 922 A.2d 1073 (2007).
"In order for res judicata to apply, the moving party must establish each of the following elements: (1) the identity of the parties is the same as in the prior action; (2) the same claim or cause of action is at issue; (3) the judgment in the prior action was rendered on the merits by a court of competent jurisdiction; and (4) the parties had the opportunity to fully and fairly litigate the matter." Powell v. University of Connecticut School of Medicine, Superior Court, judicial district of Hartford, Docket No. CV 07 4030390 (September 23, 2008, Stengel, J.).
The Connecticut courts have "adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action rose. What factual grouping constitutes a `transaction,' and what groupings constitute a `series,' are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage." (Internal quotation marks omitted.) Cable Co. v. Gabel, 69 Conn.App. 279, 296-97, 794 A.2d 1029 (2002). "In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action . . ." Powell v. Infinity Ins. Co., 282 Conn. 594, 604, 922 A.2d 1073 (2007). "A judgment only precludes claims arising prior to its entry and does not extinguish claims which did not then exist and could not have been sued upon in the prior action." Powell v. University of Connecticut School of Medicine, supra, Superior Court, Docket No. CV 07 4030390.
With these considerations in mind, the allegations set forth in the present action should be viewed in light of Savvidis I. In the first action the plaintiff was seeking a writ of mandamus and damages for monetary losses in upgrading the property for purposes of obtaining a certificate of occupancy. The court granted a writ of mandamus in the first action and, denied the plaintiffs' claim for damages. In the present action, while the plaintiff is again seeking damages, they relate to the plaintiff's inability to utilize the building as a rental property from the time the certificate was originally denied in April 2004, until it was issued in May 2008. Indeed, a portion of the damages claimed in the current action had not arisen at the time the first matter was litigated. The plaintiff is also seeking litigation expenses that he was forced to incur as a result of the defendant's failure to timely issue the certificate of occupancy. Such costs were not, and could not, have been part of Savvidis I. Furthermore, factual disputes exist pertaining to the delay in issuing the certificate of occupancy. The defendant claims that any such delay was the result of the pending appeal and the plaintiff's failure to secure a judgment against the proper party, the building inspector. The plaintiff disputes these allegations.
"[T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Precision Mechanical Services, Inc. v. T.J. Pfund Associates, Inc., 109 Conn.App. 560, 564, 952 A.2d 818, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008). The circumstances of the court's ruling in the first action is unclear based upon the record presented for purposes of this motion. As such, this court is unable to make a determination as to whether the claims in the present action were fully and fairly litigated or actually decided by Savvidis I. Accordingly, neither parties' motion for summary judgment can be granted on the present record based on claims of res judicata.
The defendant alternatively moves for summary judgment on the ground that the city is entitled to judgment as a matter of law on the basis of municipal immunity as codified in General Statutes § 52-557n(b)(7). Whether this subsection applies depends upon whether the issuance of the certificate of occupancy involved ministerial or discretionary acts. See Morrell v. Jane Lane, LLC, Superior Court, judicial district of Danbury, Docket No. CV 05 4003062 (September 19, 2006, Whim, J.). "The hallmark of a discretionary act is that it requires the exercise of judgment. On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Colon v. Board of Education, 60 Conn.App. 178, 181, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000).
General Statutes § 52-557n(b) provides in relevant part: "Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from . . . (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety . . ."
The vast majority of Superior Court cases find that the issuance of a certificate of occupancy is a discretionary function. See Evon v. Andrews, 211 Conn. 501, 506-07, 559 A.2d 1131 (1989) (reasoning that duties to conduct a reasonable and proper inspection, to proscribe remedial action if necessary, and to decide whether a building falls below a certain standard involve the exercise of judgment and are discretionary acts); Young v. Smalley Construction, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4004943 (November 19, 2008, Fischer, J.) (finding that issuance of certificate of occupancy is a discretionary act); Vejseli v. Pasha, Superior Court, judicial district of Waterbury, Docket No. CV 02 0172369 (September 21, 2007, Upson, J.) ( 44 Conn. L. Rptr. 206, 208) (finding that ensuring building complied with applicable laws was a discretionary act); Duffy v. Wallingford, 49 Conn.Sup. 109, 118, 862 A.2d 890 (2004) (holding that issuing a building permit and certificate of occupancy considered discretionary acts); Tynik v. Redcoat Home Builders Inc., Superior Court, complex litigation docket at New Britain, Docket No, X03 CV 98 0488994 (March 22, 2002, Aurigemma, J.) (finding that the acts of conducting building inspections and issuing certificates are analogous to enforcing health, housing and fire codes, and, as such, are discretionary acts).
There are, however, exceptions to this general rule. "General Statutes § 52-557n(b)(7) and (8) provides the security of governmental immunity for the negligent inspection of property or negligent issuance of a certificate of occupancy unless such issuance or inspection was in reckless disregard of health or safety under the circumstances or unless the defendant had notice of a violation of law." Moreino v. Kutra, Superior Court, judicial district of New London, Docket No. CV 05 4003227 (May 5, 2006, Jones, J.). "Whether the . . . conduct of the defendant was specifically directed or required by the government is a mixed question of fact and law . . ." (Internal quotation marks omitted.) Westport Taxi Service v. Westport Transit District, 235 Conn. 1, 26, 664 A.2d 719 (1995); see Schnabel v. Tyler, 230 Conn. 735, 743, 646 A.2d 152 (1994) (question of immunity predicated on factual as well as legal issues); Gauvin v. New Haven, 187 Conn. 180, 186, 445 A.2d 1 (1982) (entitlement to immunity is a question of fact).
On the state of the submissions presented in support of the motion for summary judgment, this court is unable to make a determination of entitlement to judgment. Factual issues remain unresolved as to whether any of the applicable immunity exceptions apply to the general rule that issuance of a certificate of occupancy is a discretionary function. See Westport Taxi Service v. Westport Transit District, supra, 235 Conn. 26 (factual insufficiency of the record prevents court determination regarding applicability of immunity).
Accordingly, the record before this court disallows a finding that no genuine issues of material fact exist with respect to the defendant's immunity. As such, the defendant's motion for summary judgment on the ground of municipal immunity is denied.
Conclusion
For the foregoing reasons the court denies the cross motions for summary judgment.