Diamond 67, LLC v. Oatis ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
DIAMOND 67, LLC v. DEREK V. OATIS ET AL.
(AC 37736)
Alvord, Sheldon and Mihalakos, Js.
Argued April 18—officially released August 23, 2016
(Appeal from Superior Court, judicial district of
Hartford, Complex Litigation Docket, Wahla, J. [motion
to cite in]; Miller, J. [motions for summary judgment;
judgment].)
Richard P. Weinstein, with whom, on the brief, was
Sarah Black Lingenheld, for the appellant (plaintiff).
James F. Sullivan, for the appellees (named defen-
dant et al.).
Joseph J. Arcata III, with whom, on the brief, was
Daniel P. Scapellati, for the appellee (defendant James
D. Batchelder).
Jared M. Alfin and Cristin E. Sheehan, with whom,
on the brief, was Robert W. Cassot, for the appellee
(defendant Amy Blaymore-Paterson).
Reed A. Slatas, for the appellee (defendant Ann
Letendre).
Jeffrey G. Schwartz, for the appellee (defendant
John Summers).
Christopher P. Kriesen, for the appellee (defendant
Deborah Wilson).
Opinion
SHELDON, J. The plaintiff, Diamond 67, LLC, appeals
from the summary judgment rendered by the trial court
in favor of the defendants, Derek V. Oatis, Lobo & Asso-
ciates, LLC, James D. Batchelder, Glenn Montigny, Amy
Blaymore-Paterson, Ann Letendre, John Summers, and
Debra Wilson. The plaintiff sought to develop a Home
Depot store in the town of Vernon that the defendants,
a group of concerned citizens and their attorneys,
opposed for environmental reasons. Certain defen-
dants, allegedly acting with the support of their codefen-
dants, thus sought to intervene in various administrative
and mandamus actions between the plaintiff and the
Planning and Zoning Commission of the Town of Ver-
non (planning and zoning commission). Thereafter, the
plaintiff brought this action, sounding in vexatious liti-
gation, claiming that the defendants’ conduct in
intervening or supporting other defendants’ interven-
tions in the planning and zoning actions, and their
appeals from the denials thereof, had delayed it in
obtaining the necessary final approval from the plan-
ning and zoning commission. The plaintiff claimed that
because those appeals delayed the approval of the
Home Depot development project by the planning and
zoning commission until after the deadline agreed to
for that purpose in the plaintiff’s agreement with Home
Depot, Home Depot abandoned the development proj-
ect to the plaintiff’s great financial loss. The trial court
granted all of the defendants’ motions for summary
judgment on the ground that the plaintiff could not
establish that the defendants’ actions had caused Home
Depot to abandon the development project, or thus to
sustain any compensable losses. The plaintiff appeals,
claiming that genuine issues of material fact remain as
to the causation of damages. The defendants argue that
summary judgment was appropriately rendered, and
raise various alternative grounds for affirmance as well.
We agree with the plaintiff that summary judgment was
improperly granted, and decline to affirm the court’s
judgment on any of the alternative grounds proposed
by the defendants.
The facts of this case are closely related to those at
issue in three other cases: Batchelder v. Planning &
Zoning Commission, 133 Conn. App. 173, 34 A.3d 465,
cert. denied, 304 Conn. 913, 40 A.3d 319 (2012), Dia-
mond 67, LLC v. Planning & Zoning Commission, 127
Conn. App. 634, 15 A.3d 1112, cert. denied, 301 Conn.
915, 19 A.3d 1261 (2011), and Diamond 67, LLC v.
Planning & Zoning Commission, 117 Conn. App. 72,
978 A.2d 122 (2009). We set forth the following relevant
facts in Batchelder. ‘‘In 2003, [the plaintiff] applied to
the Vernon inland wetlands commission (wetlands com-
mission) for a wetlands permit and to [the planning and
zoning commission] for site plan approval and related
permits in connection with its proposed development
[of a Home Depot]. Diamond 67, LLC v. Planning &
Zoning Commission, [supra, 75]. In 2007, after the wet-
lands commission issued [the plaintiff] a wetlands per-
mit, [the plaintiff] filed a renewed application for
approval of a site plan and related permits with [the
planning and zoning commission]. Id. While the
renewed application was pending, [the plaintiff]
brought a mandamus action, claiming that [the planning
and zoning commission] had failed to act on the 2003
application [by] the time limits set forth in General
Statutes § 8-3 (g) and General Statutes (Rev. to 2003)
§ 8-7d. Id., 75–76. [The plaintiff] argued that it was there-
fore entitled to have the 2003 application automatically
approved. Subsequently, [the planning and zoning com-
mission] denied [the plaintiff’s] renewed application,
and [the plaintiff] filed an administrative appeal to the
trial court from the denial, in addition to the mandamus
action. Id., 76.
‘‘During the pendency of the mandamus action and
the administrative appeal, Montigny filed motions, pur-
suant to [General Statutes] § 22a-19 (a),1 to intervene
in each proceeding. Id. Batchelder, however, did not
seek to intervene in either proceeding. On October 17,
2007, the court, Sferrazza, J., granted Montigny’s
motion to intervene in the administrative appeal but
denied his motion to intervene in the mandamus
action. Id.
‘‘In November, 2007, [the plaintiff and the planning
and zoning commission] engaged in mediation and set-
tlement discussions, from which Montigny and Bat-
chelder were excluded. Id., 77. The discussions led to
a possible agreement on a new site plan, which was
scheduled to be discussed at a public forum held by
[the planning and zoning commission] on November
19, 2007. Id. Prior to November 19, 2007, [Montigny and
Batchelder] petitioned, pursuant to § 22a-19, to inter-
vene in the public forum, but [the planning and zoning
commission] denied their petitions. On December 4,
2007, [Montigny and Batchelder] filed [an] administra-
tive appeal from the denial of their requests to intervene
in the public forum.
‘‘FIRST TWO APPEALS [ENTITLED DIAMOND 67,
LLC v. PLANNING & ZONING COMMISSION]
‘‘Following the public forum, [the planning and zon-
ing commission] voted to approve the settlement, and
[the plaintiff] filed a motion in the mandamus action for
judgment in accordance with the settlement agreement.
[Id.] On February 13, 2008, before the court took any
action on [the plaintiff’s] motion, Montigny filed a
renewed motion to intervene in the mandamus action,
claiming that the court was required to consider the
environmental impact of the new plan in its review of
the settlement agreement, and that he therefore was
entitled to intervene pursuant to § 22a-19. Id.
‘‘On February 14, 2008, Judge Sferrazza held a hearing
on [the plaintiff’s] motion for judgment in accordance
with the settlement agreement. Id. At the hearing, Judge
Sferrazza denied Montigny’s renewed motion to inter-
vene and rendered judgment in accordance with the
terms of the settlement agreement. Id., 77–78. Montigny
appealed from that judgment, claiming that the trial
court improperly denied his renewed motion to inter-
vene. Id., 79. [On September 15, 2009, in] Diamond 67,
LLC v. Planning & Zoning Commission, supra, 117
Conn. App. 84, this court reversed the judgment of the
trial court, concluding that ‘the substance of the settle-
ment . . . focused on the issues of the administrative
appeal and not solely on the issues of the mandamus
action.’ This court held that Judge Sferrazza ‘improperly
denied Montigny’s renewed motion to intervene and
failed to conduct a hearing compliant with [General
Statutes] § 8-8 (n).’ Id., 85. Accordingly, this court
remanded the case with direction to grant Montigny’s
motion to intervene and to ‘conduct a hearing compliant
with § 8-8 (n) to review the settlement, in which Mon-
tigny is entitled to participate for the purpose of raising
environmental issues.’ Id.
‘‘On October 21, 2009, Hon. Lawrence C. Klaczak,
judge trial referee, held a hearing pursuant to the
remand order. Montigny, who appeared through coun-
sel but did not personally attend, was granted interve-
nor status. Diamond 67, LLC v. Planning & Zoning
Commission, supra, 127 Conn. App. 642 and n.6. Bat-
chelder did not seek to intervene. Montigny’s counsel,
however, failed to present any evidence concerning
environmental issues. Id., 643. On December 3, 2009,
Judge Klaczak approved the settlement proposal and
rendered judgment in accordance with its terms. Id.,
643–44.
‘‘Montigny also appealed from that judgment. See
id., 637. Montigny claimed, in part, that Judge Klaczak
improperly approved the settlement proposal because
he, Montigny, did not consent to it. Id., 650. On April
5, 2011, this court released its decision in Diamond 67,
LLC v. Planning & Zoning Commission, supra, 127
Conn. App. 634, affirming the judgment of the trial court.
Id., 651. This court concluded, in relevant part, that
‘Montigny abdicated his right of approval by abandoning
his responsibility to raise environmental issues as an
intervenor pursuant to § 22a-19’ at the remand hear-
ing. Id.
‘‘[THIRD APPEAL, ENTITLED BATCHELDER
v. PLANNING & ZONING COMMISSION]
‘‘Meanwhile, on February 25, 2010, [the planning and
zoning commission] moved for summary judgment in
the administrative appeal filed by [Montigny and Bat-
chelder] from [the planning and zoning commission’s]
denial of their petitions to intervene in the public forum
held on November 19, 2007. On June 10, 2010, Judge
Sferrazza granted [the planning and zoning commis-
sion’s] motion for summary judgment as to Montigny’s
claim on the basis of collateral estoppel and dismissed
Batchelder’s appeal as moot. Judge Sferrazza concluded
that Judge Klaczak’s ruling, rendered on December 3,
2009, approving the settlement proposal following the
remand from Diamond 67, LLC v. Planning & Zoning
Commission, supra, 117 Conn. App. 85, disposed of
[Montigny’s and Batchelder’s] claims.’’ (Footnotes
altered.) Batchelder v. Planning & Zoning Commis-
sion, supra, 133 Conn. App. 176–79.
In the third appeal of these related cases, Batchelder
and Montigny appealed from Judge Sferrazza’s render-
ing of summary judgment. On January 24, 2012, this
court held that the appeal was moot: ‘‘Boiled down to
its essence, [Montigny and Batchelder] were provided
the opportunity to raise environmental concerns at the
October 21, 2009 hearing held by Judge Klaczak, but
failed to do so. They were offered, but failed to avail
themselves of, the very thing they sought to attain by
seeking to intervene in the November 19, 2007 public
forum. Accordingly, we cannot afford [Montigny and
Batchelder] any practical relief, and, therefore, their
appeal is moot.’’ Id., 182.
THE PRESENT APPEAL
The gravamen of the current action is the plaintiff’s
claim that the defendants’ conduct in intervening or
supporting their codefendants’ interventions in the
administrative and mandamus actions described pre-
viously caused a delay in its obtaining the necessary
final approvals for the Home Depot development proj-
ect from the planning and zoning commission, which
ultimately led Home Depot to abandon the project.
The plaintiff had entered into a sale-leaseback
agreement with Home Depot on March 9, 2006, in con-
templation of its development of the Home Depot store.
Under the terms of that agreement, Home Depot’s duty
to construct the Home Depot was conditioned on the
plaintiff’s obtaining all ‘‘final approvals,’’ including all
permits, licenses, variances, and approvals necessary
for the construction and operation of the development,
by the deadline of March 9, 2010. The contract provided
that approvals would not be considered ‘‘final approv-
als’’ thereunder until they ‘‘[are] received and are valid,
irrevocable, unqualified and unconditioned (except for
such qualifications and/or conditions that are accept-
able to Home Depot in its sole and absolute discretion),
and are no longer subject to appeal or litigation . . . .’’
The defendants objected to the proposed develop-
ment for environmental reasons. In the petitions to
intervene filed by Montigny and Batchelder, the defen-
dants claimed, inter alia, that the proposed site for the
Home Depot was located three hundred feet from the
Walker Reservoir, a source of public drinking water,
and that the construction and operation of the Home
Depot was ‘‘unreasonably likely to result in the unrea-
sonable disruption, pollution, impairment and destruc-
tion of the natural resources and hydrology of the
immediate area . . . .’’
On January 30, 2013, the plaintiff filed its third
amended complaint (complaint), which was the opera-
tive complaint at the time summary judgment was ren-
dered. The forty-two count complaint made identical
allegations against each defendant, claiming that their
interventions in the administrative action (Diamond
67, LLC v. Planning & Zoning Commission, Superior
Court, judicial district of Tolland, Docket No. CV-07-
4007637S) and mandamus action (Diamond 67, LLC
v. Planning & Zoning Commission, Superior Court,
judicial district of Tolland, Docket No. CV-07-4007520S)
constituted both common-law vexatious litigation and
statutory vexatious litigation for which double and tre-
ble damages should be awarded under General Statutes
§ 52-568.2 In particular, the plaintiff alleged that Bat-
chelder and Montigny, who were represented by Oatis,
an employee or principal of the law firm of Lobo &
Associates, LLC, had pursued interventions in those
actions, and that Blaymore-Paterson, Letendre, Sum-
mers, and Wilson had ‘‘actively participated, supported,
plotted, and planned to bring, pursue and maintain’’
those interventions. In their answers, the defendants
asserted various special defenses, including reliance on
the advice of counsel, the bar of the statute of limita-
tions, and the Noerr-Pennington doctrine. See part II
C of this opinion.
All of the defendants filed motions for summary judg-
ment between April 4 and 11, 2014. The defendants
claimed that the plaintiff could not establish any of
the elements of vexatious litigation, which requires a
plaintiff to prove that the defendant prosecuted a civil
action against it, that terminated in its favor, without
probable cause. Bernhard-Thomas Building Systems,
LLC v. Dunican, 286 Conn. 548, 553–54, 944 A.2d 329
(2008). In order to prevail on a claim of common-law
vexatious litigation or to receive treble damages under
§ 52-568, the plaintiff must also prove that the defen-
dants acted with malice. Id. Certain defendants also
argued that summary judgment should be granted on
the basis of certain of their special defenses.
The defendants also asserted that they were entitled
to summary judgment because there was no genuine
issue of material fact that their alleged conduct had not
caused the plaintiff any compensable loss or injury. To
that end, the defendants presented evidence that Home
Depot had abandoned its development project in Ver-
non not because of the defendants’ attempts to inter-
vene in the plaintiff’s actions against the planning and
zoning commission, but because of an economic down-
turn. For that reason, the defendants argued, Home
Depot refused to consider a certificate issued by the
State Traffic Commission (traffic commission) to be a
‘‘final approval’’ under the terms of the parties’ contract
due to certain unacceptable conditions contained
therein.3 In support of this argument, the defendants
submitted correspondence between the plaintiff and
Home Depot to show that the two had failed to come
to an agreement on how to deal with the conditions
imposed by the traffic commission. The correspon-
dence showed that although Home Depot was initially
under the impression that the plaintiff was willing to
contribute $500,000 toward satisfying the conditions set
forth in the traffic commission’s letter, the plaintiff was
not willing to do so. Instead, it explained, in a letter to
Home Depot, that ‘‘[w]e are not interested in making a
cash contribution . . . . However, we [are] interested
in the possibility of our doing the work [required by
the traffic commission] for $500,000 . . . .’’
On June 18, 2008, Home Depot wrote a letter to a
representative of the plaintiff, stating, ‘‘The [traffic com-
mission] Report sets forth several conditions which
require road widening and other offsite improvements
[which] were not anticipated by Home Depot, are overly
broad and are not currently within its construction bud-
get. . . . Home Depot intends on filing an appeal of
the [traffic commission] Report . . . .’’ On March 8,
2010, the plaintiff requested an extension of the dead-
line to obtain all final approvals. In a letter dated March
19, 2010, Home Depot declined the plaintiff’s request
for an extension of the deadline. In that letter, Home
Depot also notified the plaintiff that, because the plain-
tiff had failed to obtain all final approvals for the project
by the deadline of March 9, 2010, it was exercising its
contractual right to terminate the contract by selling
the property. The March 19, 2010 letter did not state
which approvals Home Depot did not consider to be
‘‘final approvals’’ under the terms of its contract with
the plaintiff.
On April 25, 2014, the plaintiff filed an opposition to
the defendants’ motions for summary judgment. The
plaintiff argued in its opposition that it had in fact
obtained all final approvals for the project by the con-
tract deadline except for final approval from the plan-
ning and zoning commission, which remained pending
only because of the appeals being pursued by the defen-
dants. The plaintiff argued that approval by the planning
and zoning commission did not become final until 2012,
after the March 9, 2010 deadline, when our Supreme
Court denied certification to appeal in Batchelder v.
Planning & Zoning Commission, supra, 133 Conn.
App. 173. It also contended that the traffic commission
certificate was a final approval, as ‘‘[a]ll approvals are
subject to conditions of compliance.’’ The plaintiff also
maintained that, even if it was unable to establish causa-
tion as to the loss of the Home Depot contract, the
defendants’ conduct had caused it to incur losses in
the form of ‘‘extensive litigation costs,’’ to which it
would still be entitled if it could otherwise establish
the elements of its vexatious litigation claims.
In opposition to the defendants’ motions for summary
judgment, the plaintiff filed an affidavit from Richard
P. Hayes, Jr., the individual tasked by the plaintiff with
obtaining all final approvals for the project. Hayes
averred: ‘‘As of March 9, 2010, which was the final
date for securing approvals, the plaintiff had secured
all necessary approvals except for the final approval
from the planning and zoning commission which was
subject to an appeal brought by the defendant, Mon-
tigny. . . . The Montigny appeal was from a decision
by Judge Klaczak in December, 2009 at which time the
defendants knew that there was no evidence to support
the allegations of the defendants’ petition for interven-
tion, no experts to support the allegations therein and
that, in fact said petition contained false allegations in
regard to Walker Reservoir East being a source of public
water supply. . . . But for the appeal, the plaintiff
would have had an enforceable contract with Home
Depot which was worth multiple millions of dollars to
the plaintiff. . . . Further, at all times and notwith-
standing a claim to the contrary, Home Depot did not
take an appeal of the STC approval. . . . If in fact an
STC appeal had been taken, the plaintiff easily could
have resolved same by merely agreeing to absorb the
costs incidental to the improvements mandated by the
STC. . . . Plaintiff incurred professional fees, legal
fees and litigation costs in defense of defendants’ peti-
tions, inclusive of costs for defense of appeals and prep-
aration for hearing ordered upon remand at which [the
defendants] failed to present any evidence in support
of their petitions.’’
The court, Dubay, J., held a hearing on May 12, 2014,
on all of the motions for summary judgment. At that
hearing, counsel for the plaintiff argued that the STC
had granted it a final approval, and that the STC condi-
tions did not need to be accepted by Home Depot in
order to constitute a final approval under the contract.
On May 23, 2014, however, Judge Dubay recused him-
self from the case and the matter was reassigned.
A new hearing was held on September 28, 2014,
before Miller, J., after Judge Dubay had recused him-
self. On February 24, 2015, the court granted all of the
motions for summary judgment, explaining its ruling
as follows: ‘‘The parties do not agree about many of
the facts at issue in this case, but there are some critical
and uncontested facts which are not in dispute:
‘‘1. One of [the] plaintiff’s major responsibilities,
under its contract with Home Depot, was to obtain
all necessary permits so that the development could
take place.
‘‘2. Ultimately, [the] plaintiff obtained all of the neces-
sary permits, including one from the [traffic commis-
sion], and there was no regulatory obstacle, once that
happened, to the development of the site.
‘‘3. Home Depot thereafter informed [the] plaintiff
that it would not proceed with the development because
the [traffic commission] imposed conditions on the per-
mit which Home Depot found to be unacceptable. The
development agreement, therefore, did not go for-
ward. . . .
‘‘The defendants raised several legal grounds for
granting summary judgment in their favor. The court
finds that one of those arguments so clearly requires a
finding in favor of all the defendants that the court need
only consider what was said in favor of and against
that argument in granting all of the pending motions
for summary judgment.
‘‘No plaintiff in a tort action can prevail unless he or
she can prove that the alleged wrongful conduct of the
defendant was a proximate cause of his or her injuries.
The record in this case makes it entirely clear that
Home Depot did not go forward on its deal with the
plaintiff because the permit which [the] plaintiff
obtained from the [traffic commission] contained condi-
tions which Home Depot refused to accept. [The] plain-
tiff’s contention that its agreement with Home Depot
was ‘self-executing,’ which is not supported in the
record, is irrelevant to this inquiry. Home Depot, rightly
or wrongly, decided, after it received the unpalatable
[traffic commission] permit, that it would not go for-
ward with its plans for the store in Vernon. The store
did not get built, and all of [the] plaintiff’s alleged dam-
ages flow from that decision. There is nothing in the
record in this case which even suggests that Home
Depot walked away from this deal because of any act
by any of the defendants. There is certainly no evidence
from any Home Depot employee—or anyone else—
which supports any other conclusion.
‘‘There is therefore no evidence before this court
which would allow a conclusion that the defendants’
activities were vexatious. Under these circumstances,
[the] plaintiff cannot, as a matter of law, prevail, and
the court does not consider the other arguments made
by the defense counsel in support of their motions.’’
The plaintiff claims that the trial court improperly
rendered summary judgment in favor of all of the defen-
dants. The defendants argue first that summary judg-
ment was properly rendered and, second, that the
judgment can be affirmed on several alternative
grounds.
I
The plaintiff claims that summary judgment was
improperly rendered because the facts found by the
trial court were not supported by the record and, in
any event, were not dispositive of the plaintiff’s claims.
In particular, the plaintiff argues that the trial court
ignored the fact that the planning and zoning permit
was not issued until after the contract deadline and
that the defendants’ actions were the cause of that
delay. Moreover, the plaintiff argues that Home Depot’s
reasons for abandoning the development project were
not dispositive of its vexatious litigation claims, for even
if the defendants’ challenged conduct did not cause the
loss of the Home Depot deal, it was still entitled to
recover damages from them for the costs it incurred
in defending against the defendants’ baseless claims.
The defendants disagree, arguing that summary judg-
ment was properly rendered because the plaintiff can-
not establish causation. The defendants assert that
Home Depot did not want to complete the development
because of a downturn in the economy. According to
the defendants, they presented uncontroverted evi-
dence that Home Depot was dissatisfied with the traffic
commission conditions, and that was the reason that
it did not pursue the development. Certain defendants
also argue that the plaintiff cannot assert that it is enti-
tled to attorney’s fees and costs because it did not
specifically plead that it was seeking to recover such
damages.
‘‘Practice Book § [17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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.
. . . A material fact has been defined adequately and
simply as a fact which will make a difference in the
result of the case. . . . The test is whether a party
would be entitled to a directed verdict on the same facts.
. . . Once the moving party has presented evidence
in support of the motion for summary judgment, the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue
. . . . It is not enough, however, for the opposing party
merely to assert the existence of such a disputed issue.
Mere assertions of fact . . . are insufficient to estab-
lish the existence of a material fact and, therefore, can-
not refute evidence properly presented to the court
under Practice Book § [17-45]. . . . The movant has
the burden of showing the nonexistence of such issues
but the evidence thus presented, if otherwise sufficient,
is not rebutted by the bald statement that an issue of
fact does exist. . . . To oppose a motion for summary
judgment successfully, the nonmovant must recite spe-
cific facts . . . which contradict those stated in the
movant’s affidavits and documents.’’ (Citations omitted;
internal quotation marks omitted.) Hammer v. Lumber-
man’s Mutual Casualty Co., 214 Conn. 573, 578–79, 573
A.2d 699 (1990).
‘‘We begin with a brief review of the law of vexatious
litigation in this state. The cause of action for vexatious
litigation permits a party who has been wrongfully sued
to recover damages. Verspyck v. Franco, 81 Conn. App.
646, 647, 841 A.2d 267 (2004), rev’d on other grounds,
274 Conn. 105, 874 A.2d 249 (2005); see 8 S. Speiser,
C. Krause & A. Gans, American Law of Torts (1991)
§ 28:20, p. 113 (‘The action for malicious prosecution
is a recognition of the right of an individual to be free
from unjustifiable litigation . . . [and] has been
extended into the field of wrongful initiation of civil
suits. . . . The purpose of the action is to compensate
a wronged individual for damage to his reputation and
to reimburse him for the expense of defending against
the unwarranted action.’ . . . In Connecticut, the
cause of action for vexatious litigation exists both at
common law and pursuant to statute. Both the common
law and statutory causes of action [require] proof that
a civil action has been prosecuted . . . . Additionally,
to establish a claim for vexatious litigation at common
law, one must prove want of probable cause, malice
and a termination of suit in the plaintiff’s favor. . . .
The statutory cause of action for vexatious litigation
exists under § 52-568, and differs from a common-law
action only in that a finding of malice is not an essential
element, but will serve as a basis for higher damages.
. . . In the context of a claim for vexatious litigation,
the defendant lacks probable cause if he lacks a reason-
able, good faith belief in the facts alleged and the validity
of the claim asserted.’’ (Citations omitted; footnotes
omitted; internal quotation marks omitted.) Bernhard-
Thomas Building Systems, LLC v. Dunican, supra, 286
Conn. 553–54.
We agree with the plaintiff that Home Depot’s reasons
for abandoning the project were not material to its
claim for attorney’s fees and costs in defending against
the defendants’ alleged vexatious litigation. ‘‘A material
fact has been defined adequately and simply as a fact
which will make a difference in the result of the case.’’
(Internal quotation marks omitted.) Hammer v. Lum-
berman’s Mutual Casualty Co., supra, 214 Conn. 578.
The reason that Home Depot failed to continue with
the development project is immaterial to the plaintiff’s
claims for attorney’s fees and costs, which depend upon
the plaintiff’s having established the elements of vexa-
tious litigation, i.e., whether the defendants prosecuted
a civil action, without probable cause, and that the
action was terminated in favor of the plaintiff. Bern-
hard-Thomas Building Systems, LLC v. Dunican,
supra, 286 Conn. 553–54. The plaintiff also would be
required to prove malice to prevail on its common-law
claims or to obtain treble damages for its statutory
claims. See id., 554.
Oatis, Montigny, and Lobo & Associates, LLC, argue
that the plaintiff did not specifically plead that it was
seeking attorney’s fees and costs and did not present
evidence in support of such a claim. Our Supreme Court
has said that attorney’s fees are includable as compen-
satory damages in a claim of common-law vexatious
litigation. Vandersluis v. Weil, 176 Conn. 353, 360, 407
A.2d 982 (1978). The plaintiff’s complaint alleged that
the defendants ‘‘pursued intervention’’ in the planning
and zoning action, ‘‘asserted groundless claims and per-
sisted in appeals,’’ for the purpose of ‘‘prevent[ing] the
development of the site as a Home Depot,’’ and that
the defendants’ actions caused the plaintiff to ‘‘[sustain]
millions of dollars in damage, all to its special loss.’’
Having properly claimed money damages for losses
allegedly incurred as a result of the defendants’ pursuit
of vexatious litigation against it, the plaintiff was not
required to plead more specifically, in the absence of
a proper request to revise, that among the particular
losses for which it allegedly incurred such damages
were expenses for attorney’s fees and nontaxable costs
to defend itself against the defendants’ baseless claims.
See Sanford v. Peck, 63 Conn. 486, 491, 27 A. 1057 (1893)
(‘‘complaint must contain averments which fairly and
reasonably apprise’’ defendant of claims to be made);
see also Broadnax v. New Haven, 270 Conn. 133, 173–
74, 851 A.2d 1113 (2004) (‘‘[W]e long have eschewed the
notion that pleadings should be read in a hypertechnical
manner. Rather, [t]he modern trend, which is followed
in Connecticut, is to construe pleadings broadly and
realistically, rather than narrowly and technically. . . .
[T]he complaint must be read in its entirety in such a
way as to give effect to the pleading with reference to
the general theory upon which it proceeded, and do
substantial justice between the parties. . . . Our read-
ing of pleadings in a manner that advances substantial
justice means that a pleading must be construed reason-
ably, to contain all that it fairly means, but carries with
it the related proposition that it must not be contorted
in such a way so as to strain the bounds of rational
comprehension.’’ [Internal quotation marks omitted.]).
Oatis, Montigny, and Lobo & Associates, LLC, also
argue that the plaintiff did not submit evidence, as part
of its opposition to the defendants’ motions for sum-
mary judgment, of any bills or invoices establishing that
it had incurred losses in defending itself against the
interventions. We first note that the plaintiff was not
required to establish that it incurred legal fees and costs
in response to the defendants’ motions for summary
judgment because the defendants never submitted evi-
dence establishing that there was no genuine issue of
material fact as to whether the plaintiff incurred legal
fees and costs. Marinos v. Poirot, 308 Conn. 706, 712,
66 A.3d 860 (2013) (‘‘[w]hen documents submitted in
support of a motion for summary judgment fail to estab-
lish that there is no genuine issue of material fact, the
nonmoving party has no obligation to submit docu-
ments establishing the existence of such an issue’’
[internal quotation marks omitted]). Nevertheless, the
plaintiff submitted the Hayes affidavit, which stated
that the plaintiff incurred damages in the form of ‘‘legal
fees and litigation costs in defense of defendants’ peti-
tions, inclusive of costs for defense of appeals and prep-
aration for hearing ordered upon remand,’’4 thereby
establishing that a genuine issue of fact remains as to
whether the defendants caused the plaintiff to incur
such costs and fees.
Thus, a genuine issue of material fact exists as to
whether the plaintiff can establish its claim that the
defendants’ conduct caused it to incur fees and costs
for which it is entitled to recover money damages.
Accordingly, the trial court improperly rendered sum-
mary judgment on that ground.
II
We next turn to the alternative grounds for affirmance
asserted by various defendants. ‘‘Our Supreme Court
in Grady v. Somers, 294 Conn. 324, 349–50 n.28, 984
A.2d 684 (2009), acknowledged that circumstances exist
where although the trial court did not reach a disposi-
tive issue and the defendant did not raise that issue
in a preliminary statement of issues as an alternative
ground for affirmance pursuant to Practice Book § 63-
4 (a) (1), a court can still affirm the judgment of a trial
court so long as the plaintiff is not prejudiced or unfairly
surprised by the consideration of the issue.’’ (Footnote
omitted.) Bouchard v. Deep River, 155 Conn. App. 490,
496, 110 A.3d 484 (2015). ‘‘Where the trial court reaches
a correct decision but on [alternate] grounds, this court
has repeatedly sustained the trial court’s action if
proper grounds exist to support it. . . . [W]e . . . may
affirm the court’s judgment on a dispositive alternate
ground for which there is support in the trial court
record.’’ (Citations omitted; internal quotation marks
omitted.) Pequonnock Yacht Club, Inc. v. Bridgeport,
259 Conn. 592, 599, 790 A.2d 1178 (2002). ‘‘We also have
held that ‘[i]f the alternate issue was not ruled on by
the trial court, the issue must be one that the trial court
would have been forced to rule in favor of the appellee.
Any other test would usurp the trial court’s discretion.’ ’’
Vine v. Zoning Board of Appeals, 281 Conn. 553, 568–69,
916 A.2d 5 (2007).
The first alternative ground, raised by all of the defen-
dants, is that by intervening in the plaintiff’s actions
against the planning and zoning commission, they did
not initiate or procure any civil suit against the plaintiff.
The second alternative ground, raised by Wilson, Oatis,
Montigny, Lobo & Associates, LLC, and Letendre, is
that the plaintiff cannot establish that the civil suits in
which they intervened terminated in its favor against
them. The third alternative ground, raised by Summers,
Batchelder, Oatis, Montigny, Lobo & Associates, LLC,
Letendre, Blaymore-Paterson, and Wilson, is that they
are entitled to prevail on their special defenses under
the Noerr-Pennington doctrine. The fourth alternative
ground, raised by Summers, Batchelder, Oatis, Mon-
tigny, Lobo & Associates, LLC, and Wilson, is that the
defendants are entitled to prevail on their special
defenses of reliance on the advice of counsel. Fifth and
finally, Wilson, Letendre, Oatis, Lobo & Associates, LLC,
and Montigny claim that we can affirm the rendering
of summary judgment in this case because, as to each
of their challenged interventions, there is no genuine
dispute that they pursued all claims they raised and
prosecuted in such interventions with probable cause.
We conclude that none of these alternative grounds for
affirmance can appropriately be resolved in the defen-
dants’ favor on summary judgment, and thus decline
to affirm the judgment on any such ground.
We address each alternative ground in turn.
A
The first alternative ground for affirmance, raised by
all of the defendants, is that they did not initiate or
procure any suit against the plaintiff. However, although
‘‘[b]oth the common law and statutory causes of action
[for vexatious litigation] [require] proof that a civil
action has been prosecuted’’; (internal quotation marks
omitted) Bernhard-Thomas Building Systems, LLC v.
Dunican, supra, 286 Conn. 554; it is not necessary for
the defendant to have initiated the civil action. ‘‘Most
courts now agree with the Restatement (Second) of
Torts, § 680, which permits liability for vexatious ‘initi-
ation, continuation or procurement of civil proceed-
ings against another before an administrative board that
has power to take action adversely affecting the legally
protected interests of the other.’ ’’ (Emphasis added.)
DeLaurentis v. New Haven, 220 Conn. 225, 248, 597
A.2d 807 (1991).
In Bhatia v. Debek, 287 Conn. 397, 948 A.2d 1009
(2008), our Supreme Court explained that initiation of
a suit was not an element of vexatious litigation. ‘‘We
have stated that the elements of malicious prosecution
and common-law vexatious litigation essentially are
identical. . . . Although the required showing for both
torts essentially is the same, there is a slight difference
in that a plaintiff in a malicious prosecution action must
show initiation of the proceedings by the defendant. In
our cases discussing vexatious litigation claims, we
have overlooked this difference because, ordinarily, it
is not significant for purposes of considering a claim
for vexatious litigation. The difference is evident only in
our precedent addressing malicious prosecution claims.
Compare Vandersluis v. Weil, supra, [176 Conn. 356]
(characterizing vexatious litigation and malicious pros-
ecution as having three identical elements—want of
probable cause, malice and termination of action in
plaintiff’s favor), with McHale v. W.B.S. Corp., [187
Conn. 444, 447, 446 A.2d 815 (1982)].
‘‘We have summarized the required showing for [mali-
cious prosecution and vexatious litigation] as follows:
To establish either cause of action, it is necessary to
prove want of probable cause, malice and a termination
of suit in the plaintiff’s favor. . . . In a cause of action
for malicious prosecution, the plaintiff additionally
must establish that the defendant caused the proceed-
ing to be instituted. . . . This requirement is due to
the fact that, unlike a vexatious litigation claim, in which
the underlying civil action was filed either by the defen-
dant herself, acting pro se, or by an attorney acting
on behalf of the defendant, in a malicious prosecution
action, a public official, acting on behalf of the state,
institutes the criminal action against the malicious pros-
ecution plaintiff. It is, therefore, more problematic in
a malicious prosecution action, as opposed to an action
for vexatious litigation, for the plaintiff to connect the
defendant with the actual institution of the underlying
action. In accordance with the indirect connection
between the underlying action and the defendant in a
malicious prosecution action, we have specified the
initiation of the underlying action as a separate element
in malicious prosecution cases, as opposed to vexatious
litigation cases, in which the plaintiff is not required to
establish that the defendant initiated the underlying
action.’’ (Citations omitted; internal quotation marks
omitted.) Bhatia v. Debek, supra, 287 Conn. 405–406.
The court’s reasoning in Bhatia follows the language
of the Restatement (Second) of Torts, § 674, which fur-
ther provides, in comment (a) thereto: ‘‘The person who
initiates civil proceedings is the person who sets the
machinery of the law in motion, whether he acts in his
own name or in that of a third person . . . .’’ In the
context of a malicious prosecution claim, our Supreme
Court has said, ‘‘All who knowingly procure, direct,
aid, abet or assist in, or subsequently adopt [malicious
prosecution, false imprisonment or abuse of process]
are liable as joint tortfeasors for the damage done by
the malicious prosecution, false imprisonment or abuse
of process.’’ McGann v. Allen, 105 Conn. 177, 185, 134
A. 810 (1926).
Here, the plaintiff submitted evidence establishing
that there is a genuine issue of material fact as to each
defendant’s participation in the initiation, procurement,
and/or continuation of their respective interventions
in the plaintiff’s administrative and mandamus actions
against the planning and zoning commission. The plain-
tiff claimed that the defendants acted together as part
of a group known as Smart Growth for Vernon to pre-
vent its development of the Home Depot store. In partic-
ular, the plaintiff submitted e-mails among the
defendants that detailed their joint efforts to pursue
the challenged interventions. One of those e-mails, from
Summers to Wilson, Montigny, Batchelder, and Blaym-
ore-Paterson, discusses (1) the proposed hiring of Oatis
to represent the group in connection with the planned
building of a Home Depot store in Vernon; (2) the fact
that Smart Growth for Vernon, as an unincorporated
entity, could not sign the retainer agreement with Oatis
on their behalf; and (3) the fact that they would need
to hire a hydrogeologist, a civil engineer, and a traffic
engineer to oppose the Home Depot project. Accord-
ingly, genuine issues of a material fact remain as to
each individual defendant’s role in the initiation, contin-
uation, and/or procurement of the actions in which they
sought to intervene.5
B
Certain defendants argue that because the plaintiff
ultimately settled its mandamus action against the plan-
ning and zoning commission, it cannot establish that
that action terminated in its favor. On this score, the
defendants cite to our case law that states, ‘‘When a
lawsuit ends in a negotiated settlement or compromise,
it does not terminate in the plaintiff’s favor and there-
fore will not support a subsequent suit for vexatious
litigation. . . . This conclusion recognizes that the law
favors settlements, which conserve scarce judicial
resources and minimize the parties’ transaction costs,
and avoids burdening such settlements with the threat
of future litigation.’’ (Citations omitted.) Blake v. Levy,
191 Conn. 257, 264, 464 A.2d 52 (1983). The plaintiff
argues, however, that the operative proceedings at issue
are the defendants’ interventions in the mandamus and
administrative actions, not the mandamus or adminis-
trative actions themselves. We agree with the plaintiff.
‘‘Courts have taken three approaches to the termina-
tion requirement. The first, and most rigid, requires that
the action have gone to judgment resulting in a verdict
of acquittal, in the criminal context, or no liability, in
the civil context. The second permits a vexatious suit
action even if the underlying action was merely with-
drawn so long as the plaintiff can demonstrate that the
withdrawal took place under circumstances creating an
inference that the plaintiff was innocent, in the criminal
context, or not liable, in the civil context. The third
approach, while nominally adhering to the favorable
termination requirement, in the sense that any outcome
other than a finding of guilt or liability is favorable to
the accused party, permits a malicious prosecution or
vexatious suit action whenever the underlying proceed-
ing was abandoned or withdrawn without consider-
ation, that is, withdrawn without either a plea bargain
or a settlement favoring the party originating the action.
‘‘Notwithstanding our recitation of the term favorable
termination . . . in Vandersluis and a few other cases
. . . we have never required a plaintiff in a vexatious
suit action to prove a favorable termination either by
pointing to an adjudication on the merits in his favor
or by showing affirmatively that the circumstances of
the termination indicated his innocence or nonliability,
so long as the proceeding has terminated without con-
sideration. . . . Instead, we have always viewed the
issue of whether the prior outcome was favorable to the
plaintiff as relevant to the issue of probable cause. . . .
‘‘Two concerns underlie the requirement of success-
ful termination. The first is the danger of inconsistent
judgments if defendants use a vexatious suit or mali-
cious prosecution action as a means of making a collat-
eral attack on the judgment against them or as a
counterattack to an ongoing proceeding. . . . The sec-
ond is the unspoken distaste for rewarding a convicted
felon or otherwise guilty party with damages in the
event that the party who instituted the proceeding did
not at that time have probable cause to do so.’’ (Cita-
tions omitted; emphasis omitted; footnotes omitted;
internal quotation marks omitted.) DeLaurentis v. New
Haven, supra, 220 Conn. 250–52. ‘‘The question we must
resolve, then, is whether the [termination of the prior
action] implicates either of these concerns.’’ Bhatia v.
Debek, supra, 287 Conn. 410.
The defendants incorrectly assume that the settle-
ment between the plaintiff and the planning and zoning
commission is the pertinent ‘‘termination’’ at issue. Cer-
tain defendants intervened in actions in which the plain-
tiff and the planning and zoning commission were the
original parties. As discussed in part II B of this opinion,
the plaintiff submitted evidence demonstrating a factual
issue as to whether the other defendants participated
in pursuing those interventions. The defendants thus
had a claim, pursuant to § 22a-19, in the dispute between
the plaintiff and the planning and zoning commission.
As such, in order for the defendants to prevail on sum-
mary judgment on the ground that the prior action did
not terminate in the plaintiff’s favor, they must have
been successful in pursuing those claims. However,
only the mandamus action between the plaintiff and
the planning and zoning commission was settled—not
the defendants’ claims. The defendants were not suc-
cessful in their claims, and, in fact, never even had their
environmental concerns considered before the settle-
ment was approved and the permit that the plaintiff
was seeking was eventually issued. Accordingly, the
defendants are not entitled to summary judgment on
this ground.
C
Summers, Batchelder, Oatis, Montigny, Lobo & Asso-
ciates, LLC, Letendre, Paterson, and Wilson also claim
that we can affirm the summary judgment rendered
by the trial court on the ground that their conduct in
pursuing the interventions was speech protected under
the Noerr-Pennington doctrine.
‘‘In short, the Noerr-Pennington doctrine shields
from the Sherman [Antitrust] Act [15 U.S.C. § 1 et seq.]
a concerted effort to influence public officials regard-
less of intent or purpose. . . . The United States
Supreme Court has reasoned that it would be destruc-
tive of rights of association and of petition to hold
that groups with common interests may not, without
violating the antitrust laws, use the channels and proce-
dures of state and federal agencies and courts to advo-
cate their causes and points of view respecting
resolution of their business and economic interests vis-
a-vis their competitors. . . .
‘‘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 petition-
ing a governmental entity for redress. [A]lthough the
Noerr-Pennington defense is most often asserted
against antitrust claims, it is equally applicable to many
types of claims which [seek] to assign liability on the
basis of the defendant’s exercise of its first amendment
rights. . . . For example, Noerr-Pennington has been
recognized as a defense to actions brought under the
National Labor Relations Act, 29 U.S.C. § 151 et seq.
. . . state law claims of tortious interference with busi-
ness relations . . . federal securities laws . . . and
wrongful discharge claims. . . .
‘‘Although the Noerr-Pennington doctrine provides
broad coverage to petitioning individuals or groups, its
protection is not limitless. In Eastern Railroad Presi-
dents Conference v. Noerr Motor Freight, Inc., [365 U.S.
127, 144, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961)], the United
States Supreme Court, albeit in dictum, established a
sham exception to the general rule, stating: There may
be situations in which a publicity campaign, ostensibly
directed toward influencing governmental action, is a
mere sham to cover what is actually nothing more than
an attempt to interfere directly with the business rela-
tionships of a competitor and the application of the
Sherman Act would be justified. . . . In short, petition-
ing activity is not protected if such activity is a mere
sham or pretense to interfere with no reasonable expec-
tation of obtaining a favorable ruling. . . . In Profes-
sional Real Estate Investors, Inc. v. Columbia Pictures
Industries, Inc., 508 U.S. 49, 60–62, 113 S. Ct. 1920, 123
L. Ed. 2d 611 (1993), the court outlined a two part test
to define sham litigation. First, the lawsuit must be
objectively baseless in the sense that no reasonable
litigant could realistically expect success on the merits.
Id., 60. Second, the court should focus on whether the
baseless lawsuit conceals an attempt to interfere
directly with the business relationships of a competitor
. . . through the use [of] the governmental process—
as opposed to the outcome of that process—as an antic-
ompetitive weapon . . . .’’ (Citations omitted; internal
quotation marks omitted.) Zeller v. Consolini, 59 Conn.
App. 545, 550–52, 758 A.2d 376 (2000). ‘‘Essentially,
then, a sham involves a defendant whose activities are
not genuinely aimed at procuring favorable governmen-
tal action in any form.’’ Id., 552.
‘‘Activities found to be a sham involve actions rife
with abusive intent and absent any indicia of success.
Factors present in sham litigation include, but are not
limited to, the presence of repetitive litigation (although
one action may constitute a sham under certain condi-
tions), deliberate fraud, supplying false information,
and whether lower courts have stated or implied that
the action is frivolous or objectively baseless and
whether they have dismissed it out of hand.’’ Id., 555.
The defendants claim that the Noerr-Pennington doc-
trine protects them from liability for exercising their
first amendment right to petition the government for
redress of claims, including in local zoning matters.
Moreover, they argue that the sham exception does not
apply to their conduct in this matter.
The plaintiff submitted evidence that the defendants
were aware that, contrary to their assertions throughout
the proceedings, Walker Reservoir was not a source of
drinking water. The verified petition to intervene,
signed by Batchelder and Oatis on November 16, 2007,
stated that ‘‘[Diamond 67’s conduct] is likely to cause
unreasonable pollution, impairment or destruction of
the Tankerhoosen Watershed, the Tankerhoosen River,
Gage’s Brook, and the Walker’s Reservoir, a source of
water for the citizens of Connecticut and the sur-
rounding ecosystem, its vegetation and wildlife, which
rely upon the integrity of this area [as] a necessary
habitat and a source of up-[stream] water.’’ Likewise,
the verified petition in the mandamus action, which
was signed by Montigny on September 21, 2007, also
asserted that Walker Reservoir was a source of public
drinking water. However, e-mails from Montigny and
Letendre on November 13, 2009, to the other defendants
clearly stated that such allegations were inaccurate.
The e-mail from Letendre stated, ‘‘I’m concerned. Who
drafted the petition? Walker Reservoir is NOT a source
of public water supply. . . . The petition was drafted
in 2007—why didn’t we see it and pick this error up
sooner?’’ Furthermore, an e-mail from Montigny said,
‘‘I specifically remember that we had a discussion about
the ‘source of drinking water’ statement at the time I
signed one of these petitions. When I read the petition
in [Oatis’] office, I mentioned that I did not think Walker
Reservoir was used for drinking water, but was still a
very important part of the ecosystem of the area. You
said you would check that out and amend this. What
I’m seeing . . . is, it was not amended.’’
In addition, the plaintiff submitted evidence that the
defendants were aware that they needed to obtain an
expert to prevail on their environmental claims, yet
failed to do so.
On the basis of the foregoing evidence, a genuine
issue of material fact remains as to whether the sham
exception applies in this case.6
D
The next alternative ground for affirmance, advanced
by Summers, Batchelder, Oatis, Montigny, Lobo & Asso-
ciates, LLC, and Wilson, is that they relied on the advice
of counsel.
‘‘Advice of counsel is a complete defense to an action
of malicious prosecution or vexatious suit when it is
shown that the defendant made the complaint in a crimi-
nal action or instituted his civil action relying in good
faith on such advice, given after a full and fair statement
of all facts within his knowledge, or which he was
charged with knowing. The fact that the attorney’s
advice was unsound or erroneous will not affect the
result.’’ Vandersluis v. Weil, supra, 176 Conn. 361.In
support of their motions for summary judgment, Bat-
chelder, Montigny, and Summers submitted affidavits
averring that they had relied in good faith on the advice
of Oatis, as their counsel, after providing him with full
and fair statements of all facts within their knowledge,
and that they believed that the Home Depot project
would have a deleterious effect on the environment.7
Similarly, Oatis submitted an affidavit attesting that
Montigny had made a full and fair disclosure to him of
all material facts within his knowledge.
The plaintiff contends that a disputed factual issue
remains as to whether the defendants acted in good
faith in relying on the advice of counsel. We agree that
the evidence submitted by the plaintiff and discussed
in part II C of this opinion was sufficient to raise a
genuine issue of material fact as to whether the defen-
dants acted in good faith. The defendants’ conclusory
statements in their affidavits were insufficient to estab-
lish that this fact was not in dispute.
E
Finally, certain defendants argue that the plaintiff
cannot establish want of probable cause. ‘‘[A] defendant
lacks probable cause if he lacks a reasonable, good
faith belief in the facts alleged and the validity of the
claim asserted.’’ (Internal quotation marks omitted.)
Bernhard-Thomas Building Systems, LLC v. Dunican,
supra, 286 Conn. 554. As discussed previously, the plain-
tiff presented evidence that, for years, the defendants
pursued interventions in the administrative action and
mandamus action despite never having retained an
expert to substantiate their environmental concerns.
Moreover, the plaintiff submitted evidence that certain
defendants filed verified pleadings in those actions,
which asserted that the Walker Reservoir was a source
of public drinking water, even though they were aware
that it was not a source of public drinking water.
Accordingly, genuine issues of material fact remain as
to whether the defendants lacked probable cause, and
this is therefore not an appropriate alternative ground
for affirmance.
The judgment is reversed and the case is remanded
with direction to deny the defendants’ motions for sum-
mary judgment and for further proceedings according
to law.
In this opinion the other judges concurred.
1
General Statutes § 22a-19 provides in relevant part: ‘‘(a) (1) In any admin-
istrative, licensing or other proceeding, and in any judicial review thereof
made available by law, the Attorney General, any political subdivision of the
state, any instrumentality or agency of the state or of a political subdivision
thereof, any person, partnership, corporation, association, organization or
other legal entity may intervene as a party on the filing of a verified pleading
asserting that the proceeding or action for judicial review involves 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.
‘‘(2) The verified pleading shall contain specific factual allegations setting
forth the nature of the alleged unreasonable pollution, impairment or
destruction of the public trust in air, water or other natural resources of
the state and should be sufficient to allow the reviewing authority to deter-
mine from the verified pleading whether the intervention implicates an issue
within the reviewing authority’s jurisdiction. For purposes of this section,
‘reviewing authority’ means the board, commission or other decision-making
authority in any administrative, licensing or other proceeding or the court
in any judicial review. . . .’’
2
General Statutes § 52-568 provides: ‘‘Any person who commences and
prosecutes any civil action or complaint against another, in his own name
or the name of others, or asserts a defense to any civil action or complaint
commenced and prosecuted by another (1) without probable cause, shall
pay such other person double damages, or (2) without probable cause, and
with a malicious intent unjustly to vex and trouble such other person, shall
pay him treble damages.’’
3
On May 8, 2008, the traffic commission sent the plaintiff a letter, stating
that a ‘‘certificate will not be issued by this office until: (1) the Traffic
Investigation Report has been recorded on the municipal land records . . .
(2) a bond, sufficient to cover the full cost of implementing the required
improvements, has been posted with the Department of Transportation . . .
and (3) an easement has been secured for the Town of Vernon along the
north side of Reservoir Road . . . .’’ Enclosed with the letter was a copy
of a Traffic Investigation Report, which recommended that the traffic com-
mission issue a certificate to the plaintiff ‘‘referenced to the following condi-
tions,’’ and then listing twenty-nine conditions, including the three conditions
specifically mentioned in the cover letter.
4
Blaymore-Paterson, joined by Montigny, Oatis, Lobo & Associates, LLC,
and Batchelder, filed a motion to strike this portion of the affidavit as vague.
The court denied the motion to strike.
5
For the same reasons, Blaymore-Paterson’s alternative ground that she
was not involved in the underlying action and Letendre’s alternative ground
on the basis of the statute of limitations is not appropriately resolved at
summary judgment.
6
For the same reasons, there is a genuine issue of material fact as to
whether the defendants acted with malice, and we decline to affirm the
judgment on this alternative ground asserted by Oatis, Montigny, and Lobo &
Associates, LLC.
7
The record does not reflect that Wilson submitted a similar affidavit.