Opinion
DBDCV175010844S
03-01-2019
Sam J. SIMONS v. TOWN OF SHERMAN BOARD OF SELECTMEN
UNPUBLISHED OPINION
OPINION
Kowalski, J.
The issues before the court are whether the defendant, Connie Wilson, is entitled to summary judgment as to all pending claims against her asserted by the plaintiffs, Sam and Angela Simons, sounding in fraudulent inducement, breach of contract, malicious prosecution and fraud, and whether the municipal defendants are entitled to summary judgment on or dismissal of count ten of the second amended complaint, seeking a declaratory judgment, on the basis of res judicata, collateral estoppel and lack of standing. Due to the lack of a genuine issue of material fact with respect to counts one, three, five, six and seven against Wilson, her motion for summary judgment (# 192.00) is granted, and count eight against Wilson is dismissed for lack of subject matter jurisdiction. The municipal defendants’ motions for summary judgment (# 181.00) is granted, because the plaintiffs’ claims are barred by the doctrine of res judicata.
I. BACKGROUND
This litigation is the latest chapter in a neighbor dispute between the plaintiffs, Sam and Angela Simons, who instituted this action against their next-door neighbor, the defendant, Connie Wilson ("Wilson") and the Town of Sherman Board of Selectmen, Town of Sherman Inland Wetlands and Watercourses Commission, Town of Sherman Planning and Zoning Commission, Town of Sherman Zoning Enforcement Officer, Town of Sherman Building Inspector, and the Town of Sherman ("Municipal Defendants"), arising out of a boundary dispute pertaining to a plot of land located within an area known as the Glen View Subdivision in Sherman, Connecticut.
The plaintiffs allege the following facts in the second amended complaint (# 135.00). Within the Glen View subdivision, there are four parcels of land (# 135.00, p. 4). The first parcel involved in this dispute is referred to as "Lot 1" and is owned by the plaintiffs. (Id.) The second parcel is referred to as "Glen View Drive" and is owned by the Town of Sherman. (Id.) The third and fourth parcels are referred to as the "Reserve Lot" and "Lot 2," respectively, and are owned by Wilson. (Id.)
The plaintiffs allege that they are the owners of the driveway to Lot 1 which was constructed on and runs across portions of Glen View Drive, the Reserve Lot, and Lot 1. (Id., p. 5.) The driveway was constructed pursuant to a properly issued municipal driveway permit, as referred to in a 2014 settlement agreement ("2014 Settlement Agreement") that resolved a prior civil action, captioned Angela M. Simons v. Town of Sherman, Docket No. DBD-CV-12-5009055-S, that was commenced by the plaintiffs against Wilson and the Town of Sherman ("Simons I "). The plaintiffs further allege that the defendants, Planning and Zoning Commission and the Wetlands Commission approved the building permits for the construction of said driveway, which entitles them to uses set forth in General Statutes § 22a-40 on portions of Glen View Drive, the Reserve Lot and Lot 1. (Id., pp. 7-8.)
The plaintiffs further allege that from October 31, 2011 until the execution of the 2014 Settlement Agreement, the defendants uniformly denied the existence of the foregoing permits and approvals, denying that the plaintiffs had any rights whatsoever in the Reserve Lot, thus restricting the plaintiffs’ usage of the land. (Id., p. 9.) These denials were allegedly made during administrative, criminal enforcement trespass proceedings and municipal administrative land use and enforcement matters, and caused the plaintiff, Sam Simons, to be prosecuted for criminal trespass for trimming grass on the driveway in dispute. (Id.) The plaintiffs allege that Wilson voluntarily testified at the May 19, 2014 criminal trespass trial that Sam Simons "had no rights to be on any portion of the Reserve [Lot] for any reason whatsoever prior to February 27, 2014" and that at the time Wilson so testified, she knew or should have known that Sam Simons was permitted to conduct certain activities in the Reserve Lot due to prior permits referred to in the 2014 Settlement Agreement. (Id., p. 15.)
Criminal proceedings and two civil actions have preceded the present action. On May 12, 2012, Sam Simons was arrested for criminal trespass in the first degree and assault in the third degree, after allegedly trimming grass on the portion of the driveway located on the Reserve Lot and allegedly assaulting Wilson’s spouse (# 194.00, Exhibit I). As a condition of release prior to trial, Sam Simons was ordered to stay off the Reserve Lot and to have no contact with Wilson or her spouse. The resulting prosecution in Geographical Area 3 in Danbury bore docket number D03D-CR12-0144052-S. On June 26, 2012, the court in Simons I issued an order permitting the plaintiffs to cross the Reserve Lot only for the purpose of using their driveway to access their home on Lot 1. Ultimately, the state filed a substitute information charging Sam Simons with simple trespass and creating a public disturbance, both of which are infractions (# 194.00, Exhibit A). After trial, at which Wilson testified on May 19, 2014, Sam Simons was found not guilty of simple trespass but found guilty of creating a public disturbance.
Sam Simons was subsequently arrested on March 10, 2013, for violation of these conditions and charged with criminal trespass.
Simons I was filed on May 22, 2012. In that action, the plaintiffs in the present action brought suit against Wilson and the Town of Sherman, asserting claims related to the driveway, including claims sounding in implied easement, prescriptive easement and adverse possession, and misrepresentation claims related to the May 12, 2012 arrest of Sam Simons. In Simons I, the plaintiffs sought both monetary and declaratory relief. On February 27, 2014, all parties to Simons I entered into a Stipulation and Settlement Agreement ("2014 Settlement Agreement") (Complaint, Exhibit A). Before the acceptance of the 2014 Settlement Agreement by the court, Sheedy, J., and the entry of judgment thereon, the plaintiffs were thoroughly canvassed by the court (# 182.00, pp. 23-25). The following portions of the 2014 Settlement Agreement are relevant to the present action:
(1) Section III.A., "EASEMENT BY WILSON TO PLAINTIFFS" which provides, in part, that the plaintiffs and Wilson have entered into an Easement Agreement granting the plaintiffs, their heirs, successors and assigns, certain rights to the easement areas described in a map attached to the 2014 Settlement Agreement, which was subsequently recorded in the land records of the Town of Sherman.
(2) Section III.C., "DRIVEWAY," which provides, in part, that [t]he driveway constructed by or for the owner(s) of [the plaintiffs’ property] in connection with building permit # 1262 was pursuant to a properly issued driveway permit.
(3) Section III.D., "OTHER OUTSTANDING LAND USE ITEMS," which provides, in part, that "Sherman reserves the right to enforce the requirements of applicable codes, regulations and ordinances, including the Planning & Zoning Regulations, Inland Wetland Regulations, Building Code and other rules, regulations and ordinances of the Town that may be applicable, and in particular to take any and all action as may be necessary to abate a violation of same.
(4) Section III.E., "RELEASE OF ALL CLAIMS," which provides, in part, that "the Plaintiffs release and discharge Wilson and the Town of Sherman, including all of its departments, its affiliated divisions and its organizations of any kind ... including all present, past or future appointed or elected officials, boards ... from any and all past, present or future claims, demands, obligations, actions, causes of action, rights, damages, costs, losses or services, expenses and compensation, of any nature whatsoever ... whether based on a tort, contract, indemnification, common-law, statutory or other theory of recovery, which the Plaintiffs now have, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way be related to or grow out of the claims set forth in Angela M. Simons et al. v. Connie T. Wilson et al., Docket No: DBD CV12 5009055 S ...
Likewise, Wilson releases and forever discharges the Plaintiffs of and from any and all suits, causes of action, complaints, charge, obligations, demands, debts or claims of any kind, whether in law or in equity, direct or indirect, which Wilson now has or hereafter can, shall or may have for, upon, by reason of, on account of, or may in any way be related to or grow out of the claims set forth in Angela M. Simons et al. v. Connie T. Wilson et al., Docket No: DBD CV12 5009055 S ...
The right to enforce the terms and conditions of this Stipulation and Settlement Agreement is specifically reserved and excluded from the released claims.
(5) Section IV, "GENERAL PROVISIONS," which provides, in part, that "[j]urisdiction is retained for the purposes of enabling any party to the Stipulation and Settlement Agreement to apply to the Court for such further orders and directions as may be necessary and appropriate for the construction and carrying out of the Stipulation and Settlement Agreement and for enforcement of compliance herewith ...(Complaint, Exhibit A, pp. 3-8.)
On January 15, 2016, nearly two years after the entry of judgment in Simons I, the plaintiffs filed a motion to open judgment, seeking "an order delineating scope of building permit # 1262 dated Oct 16, 1976 and driveway permit identified in Paragraph III.C. of the [2014 Settlement Agreement]" (Simons I, # 224.00). The motion to open was denied by the court, Shaban, J., on February 1, 2016, with the court finding that "[n]o good or compelling reason has been provided to the court which would lead it to the conclusion that the judgment should be reopened" (# 182.00, Exhibit H). The plaintiffs took no appeal from the denial of the motion to open.
The second civil action ("Simons II ") was commenced by the plaintiffs to the present action against Wilson, the Town of Sherman and other Municipal Defendants, including the Town’s Board of Selectmen, First Selectman, Planning and Zoning Commission, Inland Wetlands and Watercourses Commission, Building Inspector and Zoning Enforcement Officer, in the United States District Court for the District of Connecticut, and captioned Simons v. Sherman, United States District Court, Docket No. 3:16CV488 (MPS) (D.Conn. March 16, 2017). In Simons II, the plaintiffs couched the federal and state law claims in their eleven-count complaint in terms of violation of their "vested land use property rights and rights to liberty and equal protection guaranteed under the Fifth and Fourteenth Amendments to the United States Constitution, and Title 42 U.S.C. § 1983" (# 182.00, Exhibit I). The plaintiffs sought damages, declaratory and injunctive relief related to the alleged conduct of the defendants with respect to the 2014 Settlement Agreement and related land use matters, and alleged that Wilson and the Town engaged in malicious prosecution by not taking steps to terminate the criminal trespass prosecution against Sam Simons. (Id.) Ultimately, the court, Shea, J., dismissed the plaintiffs’ claims in Simons II on March 16, 2017, finding that the federal claims were not ripe (# 182.00; Exhibit J, pp. 10-13). The court also declined to exercise supplemental jurisdiction over the state law claims. (Id., p. 14.) The present action was filed on May 19, 2017, approximately two months after the dismissal of the federal action.
On August 23, 2018, the defendant Wilson filed a motion for summary judgment (# 192.00), seeking summary judgment on all claims against her. The Municipal Defendants filed a motion to dismiss and motion for summary judgment (# 181.00) as to count ten of the second amended complaint, the last remaining count against them, which seeks a declaratory judgment setting forth the boundaries of permits referred to in the 2014 Settlement Agreement. The issues have been fully briefed and presented to the court, as both Wilson and the Municipal Defendants filed memoranda in support of their motions, the plaintiffs filed memoranda in opposition, the defendants filed reply memoranda, and the court heard argument on the motions.
Counts two and four of the second amended complaint against Wilson, sounding in fraudulent inducement and seeking rescission of the 2014 Settlement Agreement, were previously stricken by the court, Mintz, J. (# 155.05) on July 6, 2018, after the plaintiffs advised the court that they had no objection to the granting of Wilson’s motion to strike those counts.
Counts nine and eleven of the second amended complaint, asserting claims of inverse condemnation and declaratory judgment against the Municipal Defendants, were dismissed by the court, Mintz, J., on July 6, 2018 (# 137.25).
II. 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 ... 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; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). "[A] party has the same right to submit a weak case as he has to submit a strong one." Hunter v. Healey Car & Truck Leasing, Inc., 41 Conn.App. 347, 350, 675 A.2d 919, cert. granted, 238 Conn. 901, 677 A.2d 1375 (1996).
"[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." (Citation omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803, 842 A.2d 1134 (2004). "On a motion for summary judgment, the court is not to make credibility determinations or weigh conflicting evidence in deciding the motion for summary judgment ... If the parties present conflicting evidence, it should be submitted to the fact finder." (Citations omitted.) Papa v. Schroeder, Superior Court, judicial district of Hartford, Docket No. CV-14-6052720-S (March 1, 2016, Peck, J.); see also Martin v. Westport, 108 Conn.App. 710, 728, 950 A.2d 19 (2008) (affirming trial court’s granting of motion for summary judgment, reasoning that court may review, but not weigh, evidence).
However, "[o]nce the moving party has met its burden [of production] ... the opposing party [to survive summary judgment] must present evidence that demonstrates the existence of some disputed factual issue." (Citation omitted; internal quotation marks omitted.) Maltas v. Maltas, 298 Conn. 354, 366, 2 A.3d 902 (2010). "To defeat a motion for summary judgment, the nonmoving party must ‘provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.’ Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). Evidence is defined as ‘[s]omething (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact.’ Black’s Law Dictionary [ (9th Ed. 2009) ]." Voris v. Middlesex Mutual Assurance Co., 297 Conn. 589, 602, 999 A.2d 741 (2010).
A. Wilson’s Motion for Summary Judgment (# 192.00)
Wilson’s motion for summary judgment (# 192.00) is directed against counts one and three, sounding in fraudulent inducement, counts five and six, sounding in breach of settlement agreement, count seven, sounding in malicious prosecution and count eight, sounding in fraud.
1. Counts One and Three (Fraudulent Inducement)
In count one, the plaintiff Sam Simons asserts a claim for fraudulent inducement against Wilson, and in count three the plaintiff Angela Simons asserts a substantively similar claim for fraudulent inducement, also against Wilson. "The party alleging fraud bears the burden of proving it with clear, precise, and unequivocal evidence." (Internal quotation marks omitted.) Aksomitas v. Aksomitas, 205 Conn. 93, 100, 529 A.2d 1314 (1987). "The determination of what acts constitute fraud is a question of fact ..." Miller v. Guimaraes, 78 Conn.App. 760, 781, 829 A.2d 422 (2003). "Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed ... The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment ..." Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d 53 (2005). "The party claiming fraud has the burden of proof and must prove each element by clear and convincing evidence ... Clear and convincing evidence is evidence that is substantial and that unequivocally establishes the elements of fraud in the inducement. Clear and convincing evidence is evidence that establishes that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Citation omitted; internal quotation marks omitted.) LoRicco v. Hula’s New Haven, LLC, 53 Conn.Supp. 372, 117 A.3d 1007 (2013), aff’d, 157 Conn.App. 489, 115 A.3d 531 (2015).
Additionally, "[a] duty to disclose may be imposed by statute or regulation ... or such a duty may arise under common law ... Under the common law, a duty to disclose is imposed on a party insofar as he voluntarily makes disclosure. A party who assumes to speak must make a full and fair disclosure as to the matters about which he assumes to speak ... Additionally, [w]hether or not there is a duty to disclose depends on the relationship of the parties ... or, to put it in another way, whether the occasion and circumstances are such as to impose a duty to speak ... A duty to disclose will arise if the parties share a special relationship." (Citations omitted; internal quotation marks omitted.) DiMichele v. Perrella, 158 Conn.App. 726, 731-32, 120 A.3d 551, cert. denied, 319 Conn. 927, 125 A.3d 203 (2015).
The plaintiffs allege that Wilson discharged any claims against the plaintiffs by signing the 2014 Settlement Agreement, and further allege that at the time of the execution of the 2014 Settlement Agreement, Wilson "did not intend" to release and discharge Sam Simons from charges and claims associated with the criminal trespass case against him pursuant to the 2014 Settlement Agreement. The plaintiffs also argue that Wilson’s silence in Simons I, during the February 27, 2014 canvass regarding the alleged activities authorized by the driveway permit set forth in the 2014 Settlement Agreement, constituted fraud because the defendant Wilson had an affirmative obligation under the circumstances to disclose that she believed that the driveway permit did not cover the portion of the plaintiffs’ Lot 1 driveway on May 12, 2012. In response, Wilson asserts that there is no genuine issue of material fact because the plaintiffs cannot establish a claim for fraudulent inducement as there are no facts to support the allegation that Wilson made any false representations.
At his March 2, 2018 deposition in the present action, Sam Simons testified that he did not remember the prosecutor saying anything to him about Wilson’s intent or lack of intent to drop the criminal trespass claims (# 193.00, Exhibit D, Sam Simon’s Deposition Transcript, pp. 45-46). Apparently, the fact that the state continued to prosecute Sam Simons despite the 2014 Settlement Agreement is what led the plaintiffs to believe that Wilson was urging the state to continue the prosecution against Sam Simons for criminal trespass. However, the court finds nothing in the record to substantiate that belief and corresponding allegation. In fact, it flies in the face of Wilson’s affidavit, in which she attests that "[b]etween February 27, 2014 and May 19, 2014, I did not contact the State’s Attorney, state police, or any other state entity involved in the prosecution of Sam Simons to initiate, procure, or otherwise influence the State’s decision to prosecute Sam Simons for any [of] the charges arising out of the May 12, 2012 incident" (# 193.00, Exhibit H).
Furthermore, the plaintiffs have not established that the defendant Wilson’s silence at the time of entry of judgment on the 2014 Settlement Agreement in Simons I constitutes fraud. The plaintiffs argue that if Wilson had the belief that the driveway permit did not cover the portion of the plaintiffs’ Lot 1 driveway as of May 12, 2012, when Sam Simons’ first arrest occurred, Wilson had an affirmative obligation to disclose that prior to the entry of judgment. The plaintiffs cite Garrigus v. Viarengo, 112 Conn.App. 655, 963 A.2d 1065 (2009), for the proposition that silence can constitute fraud under certain circumstances. Although that is true, silence does not constitute fraud under all circumstances.
"A settlement agreement is a contract among the parties. Muldoon v. Homestead Insulation Co., 33 Conn.App. 695, 700, 638 A.2d 41 (1994), rev’d on other grounds, 231 Conn. 469, 650 A.2d 1240 (1994); see also Powell v. Omnicom, 497 F.3d 124, 128 (2d Cir. 2007) ([a] settlement agreement is a contract that is interpreted according to general principles of contract law)." (Internal quotation marks omitted.) Guarnieri v. Guarnieri, 104 Conn.App. 810, 822, 936 A.2d 254 (2007). Among those general principles is the well-established rule that a contract must be construed as a whole, with all relevant portions considered together. La- Rob Bus Corp. v. Fairfield, 170 Conn. 397, 407, 365 A.2d 1086 (1976).
The 2014 Settlement Agreement provides that the driveway to Lot 1 "was [constructed] pursuant to a properly issued driveway permit." However it is silent as to the state of affairs on May 12, 2012. Further, in Section II, "DISCLAIMER OF ADMISSIONS," it states that the agreement is the result of a compromised agreement and that "[n]othing in this Stipulation and Settlement Agreement, shall be construed as an admission by Plaintiffs, Wilson or the Town of any fact, liability, issue of law, conclusion of law ... nor shall compliance with this Stipulation and Settlement Agreement constitute or be construed as an admission by Plaintiffs, Wilson or the town of any fact, liability, issue of law, conclusion of law ..." (Complaint, Exhibit A, p. 3). Finally, the second paragraph of Section IV, "GENERAL PROVISIONS," provides that "[t]his Stipulation and Settlement Agreement represents the full and complete terms of the settlement entered into by the Parties hereto."
Reading these provisions together, the court finds nothing that imposes upon Wilson the duty to make the disclosure sought by the plaintiffs. The 2014 Settlement Agreement is completely silent with respect to any aspect of the then-pending criminal prosecution. The parties could have addressed that matter in the agreement, much as they addressed other matters, but they did not (see, Complaint, Exhibit A, Section F, ‘TERMINATION OF ALL MUNICIPAL COMPLAINTS"). Therefore, the plaintiffs have failed to show that the defendant Wilson’s alleged silence at the entry of judgment on the 2014 Settlement Agreement regarding her understanding of the impact of that agreement on the parties’ respective rights as of May 12, 2012, establishes the existence of a genuine issue of material fact that precludes summary judgment in Wilson’s favor.
After reviewing the evidence and memoranda submitted by the parties, the court finds that Wilson has met her burden of production as to counts one and three of the second amended complaint; see Rosenthal v. Bloomfield, 178 Conn.App. 258, 263, 174 A.3d 839 (2017); see also Credit One, LLC v. Head, 117 Conn.App. 92, 100, 977 A.2d 767, cert. denied, 294 Conn. 907, 982 A.2d 1080 (2009), and that the plaintiffs have failed to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact as to whether Wilson made a misrepresentations of fact to them, which she knew to be untrue, with the intent to induce reliance thereon and upon which they ultimately relied. Accordingly, Wilson’s motion for summary judgment is granted as to counts one and three of the second amended complaint.
2. Counts Five and Six (Breach of Settlement Agreement)
In count five, the plaintiff Sam Simons asserts a claim for breach of settlement agreement against Wilson, and in count six the plaintiff Angela Simons asserts a substantively similar count for breach of settlement agreement also against Wilson. "The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." Whitaker v. Taylor, 99 Conn.App. 719, 728, 916 A.2d 834 (2007). "[W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law ... [T]he interpretation and construction of a written contract present only questions of law, within the province of the court ... so long as the contract is unambiguous and the intent of the parties can be determined from the agreement’s face ... Contract language is unambiguous when it has a definite and precise meaning about which there is no reasonable basis for a difference of opinion." (Internal quotation marks omitted.) Nash v. Stevens, 144 Conn.App. 1, 18, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013). As noted previously, settlement agreements are contracts among the parties that are interpreted based on principles of contract law. See, Guarnieri v. Guarnieri, supra, 104 Conn.App. 822.
The plaintiffs allege that Wilson’s representations and testimony in prior actions against the plaintiff, Sam Simons, constituted a repudiation and breach of the 2014 Settlement Agreement, because her testimony contradicted the permits and approvals referenced in Section III.C thereof (Complaint, pp. 20-21). The plaintiffs further allege that during Wilson’s testimony in the criminal proceedings against Sam Simons, she relied upon a certain map ("Map # 2010") which was not referenced in the 2014 Settlement Agreement, and that the use of that map was in material conflict with the terms of the 2014 Settlement Agreement. (Id., 21.) The plaintiffs argue that the reliance on Map # 2010 constituted a breach of the settlement agreement because it materially conflicts with a subsequent map ("Map No. 2039") (# 135.00, Exhibit C), which the plaintiffs allege was recorded on March 21, 2014, pursuant to the settlement. (Id.) Wilson asserts that there is no evidence to support a breach of contract claim and her testimony in the criminal proceedings are protected by the absolute immunity doctrine.
The court finds no evidence to support the contention that Wilson’s testimony was in conflict with the 2014 Settlement Agreement. As found previously, the criminal proceedings were not addressed in the 2014 Settlement Agreement. The reliance on "Map # 2010" with respect to the parties’ respective property rights as of May 12, 2012 is not in conflict with the 2014 Settlement Agreement, because the agreement did not refer to that map, its validity or its future use. Had the parties to the 2014 Settlement Agreement wished to address those issues they could have done so, but they did not. The plaintiffs have failed to establish any genuine issue of material fact with respect to counts five and six with respect to their claim that the defendant Wilson breached the 2014 Settlement Agreement. Therefore, summary judgment is granted as to counts five and six.
Wilson also asserts that she is entitled to summary judgment on this count based on the doctrine of absolute immunity, because the plaintiffs base their claims in counts five and six on testimony she gave in court during the criminal prosecution (# 193.00, pp. 26-30). See Morgan v. Bubar, 115 Conn.App. 603, 610, 975 A.2d 59 (2009) (parties to or witnesses before judicial or quasi-judicial proceedings are entitled to absolute immunity for the content of statements made therein). The doctrine of absolute immunity was initially applied to bar defamation claims, but has since been extended to bar other claims, including fraud, intentional interference with contractual relations and intentional infliction of emotional distress based on allegedly defamatory statement. See Tyler v. Tatoian, 164 Conn.App. 82, 88, 137 A.3d 801, cert. denied, 321 Conn . 908, 135 A.3d 710 (2016). However, Wilson has not cited, nor has the court found, Connecticut authority for the proposition that the absolute immunity doctrine is applicable to a breach of contract claim. The court declines to apply the doctrine of absolute immunity as a bar to counts five and six.
3. Count Seven (Malicious Prosecution)
In count seven, sounding in malicious prosecution, the plaintiff Sam Simons alleges that on March 26, 2014 and on May 19, 2014, Wilson testified falsely and maliciously in the criminal proceedings against him and "without probable cause charged the plaintiff Sam Simons with the commission of the crime of criminal trespass" (# 135.00, p. 23). Sam Simons further alleges that neither Wilson nor her attorneys have informed the state of "the truth regarding the Lot 1 permits and municipal land use approvals on the RESERVE authorizing Lot 1 owners such as plaintiffs to use and conduct activities set forth in the regulations, ordinances and/or statutes underlying said permits and approvals." (Id., p. 24.) Wilson counters that the malicious prosecution claim is unsubstantiated and that because she did not initiate any criminal proceedings against Sam Simons, there is no genuine issue of material fact that would preclude summary judgment in her favor.
"An action for malicious prosecution against a private person requires a plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice ... The law governing malicious prosecution seeks to accommodate two competing and ultimately irreconcilable interests. It acknowledges that a person wrongly charged with criminal conduct has an important stake in his bodily freedom and his reputation, but that the community as a whole has an even more important stake in encouraging private citizens to assist public officers in the enforcement of the criminal law ..." (Citation omitted; internal quotation marks omitted.) Crismale v. Walston, 184 Conn.App. 1, 21, 194 A.3d 301 (2018).
In an action for malicious prosecution, in order to satisfy the element of initiating or procuring the institution of criminal proceedings against the plaintiff, the plaintiff must show that a criminal proceeding against him was commenced and prosecuted and that the defendant caused the proceeding to be instituted. Zenik v. O’Brien, 137 Conn. 592, 595, 79 A.2d 769 (1951). The law affords immunity from liability for malicious prosecution for an individual who gives information which he reasonably believes to be true to a law enforcement officer and upon which the officer, in exercise of an uncontrolled discretion, initiates criminal proceedings. Id.
"A private person can be said to have initiated a criminal proceeding if he has insisted that the plaintiff should be prosecuted, that is, if he has brought pressure of any kind to bear upon the public officer’s decision to commence the prosecution ... But a private person has not initiated a criminal proceeding if he has undertaken no more than to provide potentially incriminating information to a public officer. In such a case, if the defendant has made a full and truthful disclosure and has left the decision to prosecute entirely in the hands of the public officer, he cannot be held liable for malicious prosecution ..." (Citations omitted; emphasis added; internal quotation marks omitted.) Crismale v. Walston, Superior Court, judicial district of New Haven, Docket No. CV-14-6049358-S (December 27, 2016, Wilson, J.), affirmed, supra, 184 Conn.App. 22.
In the present case, the genesis of the criminal prosecution was Sam Simons trimming grass on the portion of the driveway that was allegedly on the Reserve Lot, owned by Wilson. Wilson called the police because Sam Simons was on her property without permission and would not leave (# 194.00, Exhibit I). This resulted in Sam Simons’ being arrested and charged with criminal trespass in the first degree and assault in the third degree, after allegedly trimming grass on the portion of the driveway located on the Reserve Lot and allegedly assaulting Wilson’s spouse. (Id.) Ultimately, the state filed a substitute information charging Sam Simons with simple trespass and creating a public disturbance (# 194.00, Exhibit A), and at trial, he was found not guilty of simple trespass but found guilty of creating a public disturbance.
As noted previously, Wilson has filed an affidavit in which she attests that "[b]etween February 27, 2014 and May 19, 2014, I did not contact the State’s Attorney, state police. or any other state entity involved in the prosecution of Sam Simons to initiate, procure, or otherwise influence the State’s decision to prosecute Sam Simons for any [of] the charges arising out of the May 12, 2012 incident" (# 193.00, Exhibit H). Sam Simons has not supplied the court with evidence demonstrating that the defendant Wilson insisted that he be prosecuted or brought "pressure of any kind to bear upon the public officer’s decision to commence the prosecution." See McHale v. W.B.S. Corp., 187 Conn. 444, 448, 446 A.2d 815 (1982). Therefore, the first element, as stated in Crismale v. Walston, supra, 184 Conn.App. 21, is not satisfied. After reviewing the evidence and memoranda submitted by the parties, the court finds that Wilson has met her burden of production as to count seven of the second amended complaint; see Rosenthal v. Bloomfield, supra, 178 Conn.App. 263; see also Credit One, LLC v. Head, supra, 117 Conn.App. 100; and that Sam Simons has failed to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact on the first necessary element of a malicious prosecution cause of action. Further, the prosecution did not terminate in Sam Simons’ favor, since he was found guilty of creating a public disturbance, one of the two charges against him.
In his March 2, 2018 deposition, Sam Simons conceded that the two original charges arose out of a "single incident basically or date, the May 12th" (# 194.00, Exhibit D, p. 30).
The court also finds that there is no genuine issue of material fact with respect to Sam Simons’ claim that Wilson acted without probable cause and with malice. There is no evidence that Wilson knowingly provided false information to the police or pressured the state to bring or continue the criminal prosecution. For the foregoing reasons, Wilson’s motion for summary judgment is granted as to count seven of the second amended complaint.
4. Count 8 (Fraud)
In the eighth count of the second amended complaint, Sam Simons asserts a claim of fraud against Wilson, alleging that she committed fraud at the May 19, 2014 criminal trespass trial by offering representations, testimony and Map # 2010, all of which she knew or should have known were false (# 135.00, pp. 24-25). Sam Simons further alleges that Wilson did so with the intent to induce reliance by the prosecution, and that the police, prosecutor and others relied upon such representations and Map # 2010 in the prosecution of Sam Simons after the entry of judgment on the 2014 Settlement Agreement on February 27, 2014. (Id., p. 25.)
Sam Simons also argues in his brief that Wilson knew or should have known, at the time of her testimony in the criminal prosecution on May 19, 2014, to disclose said information because the defendant Wilson had legal representation regarding the tract of land at issue from November of 2011 through the February 27, 2014 settlement and had retained experts that confirmed where the original driveway was constructed. In response, Wilson asserts that the doctrine of absolute immunity is a bar to the fraud claim.
When considering an absolute immunity claim, "[t]he dispositive issues are whether the setting in which her statements were made was a quasi-judicial proceeding and, if so, whether the alleged defamatory statements were made in the course of the proceeding and related to the subject matter of that proceeding." Morgan v. Bubar, 115 Conn.App. 603, 610, 975 A.2d 59 (2009). "In Connecticut, parties to or witnesses before judicial or quasi-judicial proceedings are entitled to absolute immunity for the content of statements made therein." (Internal quotation marks omitted.) Preston v. O’Rourke, 74 Conn.App. 301, 311, 811 A.2d 753 (2002). Indeed, such statements are entitled to absolute immunity even if made falsely and maliciously. See Craig v. Stafford Construction, Inc., 271 Conn. 78, 84, 856 A.2d 372 (2004). In the present action, there is no question that Wilson’s May 19, 2014 testimony at Sam Simons’ criminal trial was made in a judicial proceeding and were related to the subject matter of the proceeding. Therefore, the elements of an absolute immunity defense have been satisfied, and the court must now consider whether the doctrine of absolute immunity bars Sam Simons’ fraud claim against Wilson.
In Simms v. Seaman, 308 Conn. 523, 568-69, 69 A.3d 880 (2013), our Supreme Court held that a claim of common-law fraud against an attorney is barred by the absolute immunity doctrine. Subsequently, in Tyler v. Tatoian, 164 Conn.App. 82, 88-93, 137 A.3d 801, cert. denied, 321 Conn. 908, 135 A.3d 710 (2016), a case not involving an attorney, the Appellate Court conducted a thorough review of the history of the doctrine of absolute immunity, the underlying public policy of the doctrine and controlling precedent, and concluded that the doctrine of absolute immunity bars a common-law fraud claim. Given this binding precedent, this court concludes that count eight of Sam Simons’ second amended complaint, sounding in fraud against Wilson, is barred by the doctrine of absolute immunity.
When a claim is barred by the doctrine of absolute immunity, it deprives the court of subject matter jurisdiction. Bruno v. The Travelers Companies, 172 Conn.App. 717, 722-23, 161 A.3d 630 (2017). Therefore, the court will treat Wilson’s motion seeking summary judgment on count eight of the second amended complaint as a motion to dismiss. Id., 723. Because Wilson is entitled to absolute immunity as to the claim asserted in count eight, count eight is dismissed for lack of subject matter jurisdiction. See id., 730.
5. Wilson’s Assertion that the Plaintiffs’ Claims are barred by Collateral Estoppel, Res Judicata and the Statute of Limitations in General Statutes § 52-577
Because the court finds that summary judgment must be granted on counts one, three, five, six and seven of the second amended complaint, and that count eight of the second amended complaint must be dismissed for lack of subject matter jurisdiction, the court need not reach Wilson’s additional arguments that the plaintiffs’ claims are barred by collateral estoppel, res judicata and the statute of limitations contained in General Statutes § 52-577.
B. Municipal Defendants’ Motion to Dismiss and Motion for Summary Judgment (# 181.00) as to Count 10— Declaratory Judgment Confirming Boundary of Permits as set forth in Settlement Agreement
On July 24, 2018, the municipal defendants filed a motion for summary judgment (# 181.00) as to count ten of the plaintiffs’ second amended complaint on the grounds that it is barred by the doctrines of res judicata and collateral estoppel.
The Municipal Defendants have also moved to dismiss (# 181.00), but in doing so make arguments substantially similar to those presented to the court in their previously-filed motion to dismiss (# 137.00), which was denied by the court, Mintz, J. (# 137.25). This court has reviewed that decision and considers it to have been correctly decided, finds that there is no new or overriding circumstance and considers it to be the law of the case. State v. Bacon Construction Co., 160 Conn.App. 75, 80 n.6, 124 A.3d 941, cert. denied, 319 Conn . 953, 125 A.3d 532 (2015). Therefore, the Municipal Defendants’ motion to dismiss (# 181.00) is denied.
"The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation; ... and they have been described as related ideas on a continuum ..." (Citations omitted; internal quotation marks omitted.) Girolametti v. Michael Horton Associates, Inc., 173 Conn.App. 630, 649, 164 A.3d 731, cert. granted, 327 Conn. 980, 175 A.3d 42 (2017).
"The doctrine of res judicata provides that a valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties ... upon the same claim or demand ... Res judicata prevents a litigant from reasserting a claim that has already been decided on the merits ... Under claim preclusion analysis, a claim— that is, a cause of 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 arose ... Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made ... The essential concept of the modern rule of claim preclusion is that a judgment against [the] plaintiff is preclusive not simply when it is on the merits but when the procedure in the first action afforded [the] plaintiff a fair opportunity to get to the merits ... Stated another way, res judicata is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate ... [W]here a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceedings." (Citations omitted; emphasis omitted, internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 459-60, 998 A.2d 766 (2010).
"Because [res judicata and collateral estoppel] are judicially created rules of reason that are enforced on public policy grounds; ... we have observed that whether to apply either doctrine in any particular case should be made based upon a consideration of the doctrine’s underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close ... and the competing interest of the plaintiff in the vindication of a just claim ... These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation." (Citations omitted; internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 601, 922 A.2d 1073 (2007). "Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim of res judicata." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993).
"We 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 arose. What factual grouping constitutes a transaction, and what groupings constitutes 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 ... In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action ... A reviewing court has the authority to determine whether the transactional test is satisfied by comparing the factual underpinnings of the claims to determine if they are sufficiently similar." (Citations omitted; internal quotation marks omitted.) Girolametti v. Michael Horton Associates, Inc., supra, 173 Conn.App. 650-51.
In support of their claim that count ten should be barred by the doctrine of res judicata, the Municipal Defendants point out that in Simons I, the plaintiffs in the present action had previously commenced an action against Wilson and the Town of Sherman, both of whom are defendants in the present action. They further note that in Simons I the plaintiffs alleged the ownership of the lots at issue and that they had certain property rights to the Reserve Lot.
The plaintiffs argue that count ten is not barred by the doctrine of res judicata or collateral estoppel because the plaintiffs are seeking enforcement of the 2014 Settlement Agreement. The plaintiffs argue that asking the court to interpret the terms of the agreement does not constitute a new claim arising out of the same transaction as asserted by the Municipal Defendants. The plaintiffs also argue that the certain of the Municipal Defendants that are parties in the present litigation were not parties in the Simons I .
The present action is the third time the plaintiffs have commenced an action against the Town of Sherman and/or the other Municipal Defendants since 2012. After reviewing the pleadings and the judgment in Simons I, and the second amended complaint in the present action, the court concludes that count ten is barred by the doctrine of res judicata based on the prior litigation in Simons I .
In Simons II, the plaintiffs sought declaratory judgments setting forth the boundaries of the subject properties, their abilities to use the Reserve Lot and other issues with permits, which is the basis for count ten of the plaintiffs’ second amended complaint in the present action (# 181.00 p. 15); however, the federal court in Simons II dismissed the federal claims as unripe, declined to exercise supplemental jurisdiction over the state law claims and dismissed all claims without prejudice (# 182.00, Exhibit J, p. 14). Although Simons II could also arguably support a finding that count ten is barred by the doctrine of res judicata, the court has based its decision with respect to res judicata solely on Simons I.
In Simons I, the plaintiffs commenced an action against the Town of Sherman and defendant Wilson regarding the parcels of land currently in dispute. A comparison of the verified complaint in Simons I with the second amended complaint in the present action reveals that the two cases do, in fact, arise out of the same transaction. In both complaints, the plaintiffs allege the ownership interests of the relevant lots in the Glen View Subdivision, the plaintiffs’ use of a portion of the Reserve Lot for their driveway, the events of May 12, 2012 that resulted in the criminal prosecution previously discussed herein, and both seek injunctive and declaratory relief in addition to monetary damages, costs and equitable relief. In the verified complaint in Simons I, the plaintiffs seek a "judgment recognizing the plaintiffs’ subdivision easement rights in and to Glen View Drive and the Reserve [Lot]" (Simons I, Complaint, p. 10). In the present action, with respect to count ten, the plaintiffs seek a declaratory judgment that certain specified uses are permitted, declaring the boundary for their driveway across Glen View Drive, the Reserve Lot and Lot 1, declaring the boundary related to specified municipal permits and decisions dating from the 1970s, an injunction against Wilson and her successors in interest and a writ of mandamus requiring the Town of Sherman to prepare a survey map reflecting the permit and land use boundaries on Glen View Drive, the Reserve Lot and Lot 1 (Complaint, pp. 33-34).
In the 2014 Settlement Agreement, which resolved Simons I and was entered as a judgment of the court, the parties to Simons I resolved the disputed issues in that litigation as framed by the verified complaint and addressed other matters, including but not limited to the easement granted to the plaintiffs by Wilson, lighting, matters related to the maintenance of and liability issues associated with the driveway, other outstanding land use items and termination of all municipal complaints (Complaint, Exhibit A). In Simons I, the plaintiffs either previously litigated or had a fair opportunity to litigate the matters that are at issue in count ten in the present action. The underlying claim in both Simons I and the present action involved the resolution of the same property dispute between the plaintiffs, Wilson and the Municipal Defendants.
Finally, the court finds the plaintiffs’ argument that they are seeking enforcement of the 2014 Settlement Agreement to be unavailing. It is undermined by the fact that the plaintiffs have provided no evidence whatsoever of noncompliance on the part of the Municipal Defendants.
Given the foregoing, the court concludes that the plaintiffs’ claims in count ten are barred by the doctrine of res judicata. Simply put, the claim asserted and the relief sought in count ten could have been pursued in Simons I . In Simons I, the plaintiffs had a fair opportunity to get to the merits of the case. The allegations in count ten of the second amended complaint arise from the same transaction as gave rise to Simons I . Therefore, the defendants’ motion for summary judgment as to count ten is granted.
Because the court finds that count ten is barred by the doctrine of res judicata, it need not reach the Municipal Defendants’ claim of collateral estoppel.
III. CONCLUSION
For the aforementioned reasons, Wilson’s motion for summary judgment (# 192.00), is granted on counts one, three, five, six and seven of the second amended complaint, and count eight of the second amended complaint is dismissed for lack of subject matter jurisdiction. On the Municipal Defendants’ motion to dismiss and motion for summary judgment (# 181.00), the motion to dismiss count ten of the second amended complaint is denied, but the motion for summary judgment is granted.