Opinion
No. CV 01 0448617 S
December 22, 2006
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
On February 20, 2001, the plaintiffs, Holly Blinkoff and Quality Sand Gravel (B B Group), filed a single-count complaint against defendant, O G Industries Inc., alleging violations of the Connecticut Unfair Trade Practices Act (CUTPA). The plaintiffs amended their complaint on June 22, 2001. The plaintiffs allege that the defendant obtained and exercised unfair competitive advantages by exerting undue influence over public officials in Torrington, Connecticut and by unfair and deceptive business acts and practices.
The plaintiffs' single-count claim consists of eight subparagraphs which set forth the following specific allegations: (1) subparagraph 6A alleges that the defendant placed public officials and/or members of their families on its payroll, for the very reason that they were public officials or were related to public officials; (2) in 6B, the plaintiffs allege that the defendant made political contributions to city officials of Torrington in return for favorable treatment over other competitors; (3) subparagraph 6C alleges that the defendant caused the plaintiffs' permits to be denied; (4) in 6D, the plaintiffs allege that the conduct of the defendant has resulted in the unequal application of business regulations; (5) in 6E, the plaintiffs allege that the defendant created tying arrangements between its products to ensure that it was the only viable seller of the products also sold by the plaintiff; (6) subparagraph 6F alleges that the defendant caused the Planning and Zoning Commission to write bid specifications to exclude the plaintiff's business; (7) in 6G, it is alleged that the defendant enforced a non compete agreement to ensure its continued dominance in the business; (8) in 6H, the plaintiffs allege that the defendant caused the city of Torrington to offer bid waivers when it was likely that the defendant and plaintiff would be bidding against each other.
On May 24, 2006, the defendant filed a motion for summary judgment accompanied by a memorandum of law and documentary evidence. On July 17, 2006, the pro se plaintiff, Holly Blinkoff, filed a memorandum of law in opposition and documentary evidence. The plaintiff, Quality Sand Gravel (B B Group), represented by the offices of John R. Williams, LLC, did not file a brief in opposition to the motion for summary judgment but rather made an oral motion to adopt the pro se plaintiff's brief. This matter was heard before the court on October 20, 2006.
The corporate plaintiff, Quality Sand Gravel Inc., has not been an active party to this litigation. Defense counsel has not articulated a difference between the pro se plaintiff and the corporate plaintiff. Therefore, the court refers to both the pro se plaintiff, Holly Blinkoff, and the corporate plaintiff, Quality Sand Gravel, as "plaintiff."
The defendant moves for summary judgment on the single-count complaint on the following grounds: (1) there are no genuine issues of material fact because the allegations set forth in the complaint are factually false; (2) the statute of limitations has expired on seven out of the eight subparagraphs comprising the plaintiff's claims; (3) several of the plaintiff's claims are barred by principles of res judicata and collateral estoppel; (4) the plaintiffs failed to assert state action, as is necessary to support several of her claims under the 14th amendment; and (5) the application of the Noerr-Pennington doctrine protects the defendant's petitions to the city of Torrington.
In support of the motion for summary judgment, the defendant has submitted: (1) a list of Torrington officials and the years in which they held office, as well as an excerpt of the Torrington section of the 2004 Connecticut State Register and Manual; (2) the signed and sworn affidavit of Bethany G. Parks, the paralegal who compiled the list of Torrington officials; (3) the signed and sworn affidavit of Frank Rubino, allegedly the only O G employee who also served as a Torrington official; (4) plaintiff's responses to first set of interrogatories and request for production; (5) the certified deposition of the plaintiff and accompanying exhibits taken on November 7, 2005; (6) the certified deposition of the plaintiff taken on December 11, 2002; (7) the signed and sworn affidavit of Maurice Hoben; (8) the signed and sworn affidavit of Bruce Hoben; (9) proof of service on the defendant; (10) the memorandum of decision of Rottier v. Guilford Planning and Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV 03 0480942 (January 23, 2004, Corradino, J.); (11) the memorandum of Decision of Blinkoff v. Planning and Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 98 0078081 (June 23, 1999, Pickett, J.); (12) the certified copy of the district court ruling on defendant's motion for summary judgment; (13) Commission on Human Rights Opportunities v. Torrington, Superior Court, judicial district of New Britain, Docket No. CV 04 0528132 (June 10, 2005, Berger, J.) [ 39 Conn. L. Rptr. 512]; (14) the certified copy of the amended complaint filed by plaintiff in federal district court; (15) the certified copy of the district court verdict form in the matter of Blinkoff v. Torrington Planning and Zoning Commission; (16) the certified copy of the federal district court judgment in the matter of Blinkoff v. Torrington Planning and Zoning Commission; (17) the excerpts of the court transcripts in the matter of Blinkoff v. O G, taken on December 1, 2005.
In opposition to the defendant's motion for summary judgment, the plaintiff submitted a significant amount of unorganized material. A majority of this material is not in proper evidentiary form. The pro se plaintiff did not file her own affidavit in opposition to the summary judgment motion. In order to aid the analysis of the plaintiff's arguments, the court identified approximately fifty separate items submitted by the plaintiff. These items, accompanied by a short description, are identified in appendix A to this decision and are referenced accordingly.
The plaintiff also submitted a memorandum in opposition to the motion for summary judgment, which was an accomplished effort for a pro se plaintiff. On December 15, 2006, almost two months after the argument of the motion and on the day the court was prepared to render a decision on the motion, the plaintiff requested to file a supplemental memorandum and additional affidavits and deposition excerpts. On December 19, 2006, the defendant filed a motion in opposition to the plaintiff's supplemental filing.
In the supplemental memorandum, the plaintiff, for the first time, filed her own affidavit in opposition to the defendant's motion. The plaintiff also submitted a copy of a recent conference memorandum regarding current federal litigation and excerpts of the deposition of Mary Jane Gryniuk, taken in 2000. The court notes that the defendant's motion for summary judgment was filed in May of 2006. The plaintiff's submission is still filled with information that is not admissible evidence or in appropriate form. The plaintiff's motion to submit additional information is denied.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). According to Practice Book § 17-51, "[i]f it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted, on such terms as may be just; and the action may be severed and proceeded with as respects the remainder of the claim."
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates 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 establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
In the present case, the nonmoving party is a pro se plaintiff. In ruling on this motion for summary judgment, this court recognizes that "[i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party . . . Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Internal quotation marks omitted.) Murphy v. Zoning Board of Appeals, 86 Conn.App. 147, 157 n. 7, 860 A.2d 764 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1080 (2005). See also Mercer v. Rodriquez, 83 Conn.App. 251, 257 n. 9, 849 A.2d 886 (2004).
A. Litigation History
The present case is the most recent in a long line of related litigation arising out of the same core of operative facts. The plaintiff, Ms. Blinkoff and her corporation have been a party to all of the actions. The defendant, O G, has been involved in some of the litigation and the city of Torrington and its officials have been involved in other actions. The litigation history spans more than a decade, beginning with the filing of a claim with the Connecticut Commission of Human Rights Opportunities in 1995 and culminating with the present case. Both the plaintiff and the defendant have submitted materials from prior cases to support their respective positions in this case. In order to better understand the evidence and materials presented, and the context in which the material are analyzed, a brief litigation history of cases predating the current action is set forth below.
1. CHRO claim
On January 20, 1995, the plaintiff commenced litigation against the Torrington planning and zoning commission ("Commission") and city planner Dan McGuinness by filing a complaint with the Commission of Human Rights Opportunities ("CHRO"), alleging public accommodation discrimination based on gender and religion. See Blinkoff v. City of Torrington, Commission on Human Rights Opportunities, CHRO No. 9530406 (May 10, 2004, FitzGerald, R.). The defendant in the present case, O G Industries, was not a party to this action. On January 6, 1997, the CHRO found probable cause to proceed on the allegations in her claim. Id. On motion by the CHRO, however, the case was stayed, pending resolution of a complaint filed by the plaintiff in federal district court, due to the similarities between the claims alleged in the two cases. Id.
Nine years later, after resolution of the federal claim in favor of the Commission and its officers, the Commission filed a motion to dismiss and/or enter judgment in the CHRO claim on May 10, 2004. The Commission claimed that the CHRO claim was barred by the doctrines of res judicata and claim preclusion. The Honorable John P. Fitzgerald, Presiding Human Rights Referee at the CHRO, found in favor of the Commission and dismissed the plaintiff's claim under the doctrine of res judicata on May 10, 2004. The CHRO found that "the underlying facts of both the federal claims and state discrimination claims in the federal complaint are the same . . . The complainant had an adequate opportunity to litigate her state discrimination claims along with her federal claims in federal court . . . The doctrine of res judicata is applicable to this case." Id.
The plaintiff appealed this decision in Superior Court, but the appeal was dismissed on June 10, 2005 on the basis of res judicata. See Blinkoff v. Commission on Human Rights Opportunities, Superior Court, judicial district of New Britain, Docket No. CV 04 0528122 (June 10, 2005, Berger, J.). "Ms. Blinkoff had the opportunity to fully litigate the claims in the prior action and she chose not to; hence she is precluded, under the doctrine of res judicata, from raising them in the CHRO forum." Id. The court made a similar finding on the CHRO's position in the case, rejecting the argument of the CHRO that it should not be bound by the federal action. "[The CHRO] chose not to pursue Ms. Blinkoff's claims because it wanted a federal jury to determine them; it is now bound by those decisions." Id.
Pursuant to General Statutes § 46a-84(d), Blinkoff's complaint became CHRO's complaint, and as a result, the CHRO also appealed the decision to dismiss under res judicata. Judge Berger addressed both appeals in the same memorandum of decision. See Commission on Human Rights Opportunities v. Torrington, Superior Court, judicial district of New Britain, Docket No. CV 04 0528132 (June 10, 2005, Berger; J.); Blinkoff v. Commission on Human Rights Opportunities, Superior Court, judicial district of New Britain, Docket No. CV 04 0528122 (June 10, 2005, Berger, J.).
On July 4, 2006, the CHRO appealed the decision of the trial court to dismiss the claim on the basis of res judicata. See Commission on Human Rights Opportunities v. Torrington, 96 Conn.App. 313, 901 A.2d 46 (2006). The CHRO argued that the claims were dismissed without prejudice in the federal court action, and therefore are not subject to preclusion. The court agreed with the argument of the CHRO and stated: "A dismissal without prejudice terminates litigation and the court's responsibilities, while leaving the door open for some new, future litigation." (Internal quotation marks omitted.) Id. Accordingly, the judgment of the trial court was reversed and remanded to the Commission of Human Rights Opportunities for further proceedings. Id. The resolution of the CHRO claim is still pending.
2. Federal claim
While the CHRO was initially investigating the plaintiff's claim, the plaintiff (Holly Blinkoff d/b/a B B Group) commenced litigation in federal court against the Commission, the members of the Commission in their executive and individual capacity, and the city planner, Dan McGuinness. An eight-count complaint was filed in federal district court on July 9, 1997, and was later amended on May 4, 1999. The defendant in the present case, O G Industries, was not a party to this action. In counts one and two of the amended complaint, the plaintiff alleged public accommodation discrimination due to her religious affiliation and gender, respectively. In the third and fourth counts, the plaintiff alleges violations of the Fourteenth Amendment and 42 U.S.C. § 1983 based on denial of equal protection and denial of due process, respectively. In count five, the plaintiff alleges tortious interference with business expectancy and in counts six and seven, she alleges intentional and negligent infliction of emotional distress. Finally, in count eight of her complaint, the plaintiff alleges retaliation by selective treatment and denial of equal protection under the Fourteenth Amendment.
In the present case, the plaintiff repeats several allegations that were addressed in the federal court action. Subparagraphs 6A-6D, 6F and 6H of the current complaint are all variations of an overall allegation of improper relations between O G and city officials. In opposition to the motion for summary judgment currently before the court, the plaintiff resubmits evidence that was compiled for use in the federal court action. Several depositions, including those of Turri, Pacheco and Bruce Hoben are submitted by the plaintiff. (See Appendix A, 14, 16 and 24 respectively.) The plaintiff also submitted the responses to interrogatories completed by Turri, Pacheco and McGuinness. (See Appendix A, 7, 13, and 21 respectively.) These documents allegedly establish the improper relationship between the Commission and the defendant that form the basis of her current claim against the defendant under CUTPA.
The defendants filed a motion for summary judgment on all eight counts of the complaint, and on January 9, 2002, the motion was granted in part and denied in part by the federal district court. Counts one and two of the complaint were dismissed without prejudice due to the failure of the plaintiff to exhaust administrative remedies under the Connecticut Fair Employment Practices Act. Summary judgment was granted in favor of the defendants for most of counts four, five and seven but did not dismiss a limited claim under these respective counts to the extent that her claims related to the 1997 special exception permit application. Summary judgment was granted in favor of the defendant for counts six and eight in the entirety. After the court's ruling on the summary judgment motion, the plaintiff went to trial on her claims of denial of equal protection (Count three), denial of due process with regard to the denial of the plaintiffs' 1997 application for a special exception (Count four), tortious interference with business expectancy with regard to the plaintiffs' 1997 application for a special exception (Count five) and negligent infliction of emotional distress with regard to the denial of the plaintiffs' 1997 application for a special exception (Count seven). The remaining counts were decided by a jury against the plaintiff on April 16, 2002, and the federal court rendered judgment in accordance with that verdict. The plaintiff's appeal to the United States Court of Appeals for the Second Circuit was dismissed on June 18, 2003.
3. Plaintiff's appeal of the denial of her special exception permit
While the federal case was awaiting resolution, the plaintiff was also engaged in litigation on the state level. This litigation did not specifically include the plaintiff in her individual capacity. The plaintiff's business, Quality Sand Gravel, Inc. d/b/a B B Group, appealed the decision of the Commission to deny the application for a special exception permit necessary for operation of the plaintiff's quarry. This appeal was filed in Superior Court on August 8, 1997. See Quality Sand Gravel v. Planning Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 97 0074499 (June 1, 1998, Pickett, J.). The circumstances surrounding this appeal are the set of facts that the federal court allowed to be presented to a jury regarding the alleged violation of the plaintiffs' civil rights. The court conducted an in-depth analysis of Torrington zoning regulations and found in favor of the plaintiff on June 1, 1998. "No Torrington regulations articulate standards for evaluating the viability of a given neighborhood . . . The Commission cannot rely on general objectives tangentially related to preservation of neighborhoods . . . to support a denial of the application. Consequently, [the plaintiff's] use should be conclusively presumed to be valid and no further inquiry into its effect on property values or the harmony of the district should be permitted." (Internal quotation marks omitted.) Id. Accordingly, the plaintiff's appeal was sustained.
The decision of the trial court was subsequently appealed by the Commission. See Quality Sand Gravel v. Planning and Zoning Commission, 55 Conn.App. 533, 738 A.2d 1157 (1999). The court found that although "the [trial] court improperly applied the presumption of compatibility of uses standard to its review of the plaintiff's appeal." Id., 536, it did not reverse the trial court. The court then concluded, "there is not substantial evidence to support the commission's denial of the plaintiff's application for a special exception on the ground that it would cause an unacceptable intrusion into a viable residential zone . . . There is no evidence in the record of an intrusion into a viable residential zone." Id., 543-44. Accordingly, the appellate court affirmed the judgment of the trial court on November 2, 1999.
In the present case, a substantial amount of evidence relating to the denial of the plaintiff's application and the subsequent appeal by the Commission is submitted by the plaintiff in opposition to summary judgment. As a result of the events leading up to the litigation relating to her special exception permit application, the plaintiff alleges that an improper relationship existed between the defendant and city officials, and that this resulted in the plaintiff's business being treated unfairly. Furthermore, the plaintiff alleges that the City deviated from previously accepted practice when it chose to appeal the decision of the trial court and hire outside counsel to pursue the appeal. (See appendix A, 17-19.) Finally, the plaintiff also argues that an improper relationship existed between O G and Bruce Hoben, the planner hired by the City to analyze her application. (See appendix A, 31-37, 41.)
4. Plaintiff appeal of O G's grant of special exception permit
On October 9, 1998, while the plaintiff was awaiting resolution of the appeal filed by Torrington, she filed an appeal of the Commission's decision to grant the application for a special exception permit filed on behalf of O G Industries. See Blinkoff v. Planning Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 98 0078081 (June 23, 1999, Pickett, J.) The defendant, O G Industries, was a party to this action, as well as the Commission. In her brief filed in support of her appeal, the plaintiff raised several issues that she again raises to the court in the present case.
Several documents submitted by the plaintiff in support of her appeal of the Commission's decision have been resubmitted in support of her allegations against the defendant O G in the present case. Specifically, the plaintiff has submitted extensive evidence that allegedly establishes an improper relationship between Turri and the defendant. (See appendix A, 8-12, 25, 27, 29.)
In the brief filed in support of her claim in Blinkoff v. Planning Zoning Commission, the plaintiff alleged that Turri had a personal and financial interest in O G Industries and that the Commission deviated from past practice and protocol when the decision was made to grant the special exception permit to O G Industries. Blinkoff v. Planning Zoning Commission, supra, Superior Court, Docket No. 98 0078081. The allegations of impropriety on the part of Turri were not raised in the complaint, but instead were raised for the first time in the supporting brief. Id. Although the court initially found that "Blinkoff has . . . raised several issues for the first time in her brief. These issues are not to be considered by the Court," the court did investigate the allegations in depth, and concluded, "Blinkoff has failed to show that Turri had any actual or perceived conflict of interest, either personal or financial, in O G's application and her appeal on that issue should be rejected." Id. The plaintiff also alleged at this time that Torrington deviated from previously accepted practice when the Commission granted the O G special exception permit. Specifically, the plaintiff argues that the city erred when it accepted a staff report after the close of a public hearing. The court in Blinkoff concluded: "Blinkoff's claim is unsupported by caselaw . . . A Commission cannot receive additional evidence submitted by an interested party after the close of a public hearing but can receive and consider staff reports." Blinkoff v. Planning Zoning Commission, supra, Superior Court, Docket No. 98 0078081. The plaintiff also alleged that Torrington failed to follow its own past interpretations of the zoning regulations when it granted the O G application despite public opposition. Id. In response to these allegations, the court concluded, "Torrington cannot and does not decide applications based upon public opinion . . . Vocal public support cannot be a factor in its decisions. This claim by Blinkoff is without any basis in law or fact and should be dismissed." Id.
The court conducted an in-depth analysis of the various allegations of impropriety alleged by the plaintiff before reaching its conclusion. Relating to the allegation of a potential financial agreement as a result of Turri working as a contractor for the defendant on several projects, the court found that "Turri was awarded the contract for the electrical work by sealed competitive bids by the City of Torrington, not O G." Blinkoff v. Planning Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 98 0078081 (June 23, 1999, Pickett, J.). After concluding that Turri was not awarded work by O G in exchange for favorable treatment, the court then went on to conduct an extensive case law analysis relating to the circumstances that can indicate the existence of a conflict of interest for a public official. Based on this analysis, the court then concluded: "Turri did not have any actual or perceived conflict of interest, either personal or financial, in O G's application." Id.
B. Present case
The plaintiff appears in court once again, this time alleging a violation of CUTPA by the defendant. The plaintiff's complaint, dated February 20, 2001, in essence, argues that the defendant engaged in immoral, unethical, oppressive, and unscrupulous behavior by influencing members of the Commission and its staff. This influence was allegedly exerted by placing public officials on the defendant's payroll (6A) or by making political contributions to public officials (6B). The plaintiff alleges that this influence caused the Commission to deny permits to the plaintiffs (6C); enforce business regulations in a discriminatory manner against the plaintiff (6D); rig bid specifications in favor of the defendant (6F); and waive bidding requirements when it benefitted the defendant (6H). The plaintiff further alleges that "the defendant engaged in unfair and deceptive acts and practices in trade and commerce within the meaning of Section 42-110a of the Connecticut General Statutes" when it made tying arrangements to tie the sale of certain products to others (6E) and by enforcing non-competition agreements to the detriment of the plaintiff (6G).
The defendant argues that five grounds exist to support summary judgment on the plaintiffs' amended complaint: (1) the claims are factually false and unsupported by evidence; (2) the statute of limitations; (3) res judicata and collateral estoppel; (4) lack of state action; and (5) the Noerr-Pennington Doctrine. Each of these grounds is applied by the defendant to support dismissal of some, if not all, of the subparagraphs that make up the single-count complaint. The court discusses each ground to the extent applicable.
1. Res Judicata and Collateral Estoppel
As demonstrated by the litigation history set forth above, the present case arises from events and actions spanning more than a decade. In the current action, counts 6A-6D, 6F and 6H of the plaintiff's amended complaint relate to an allegedly improper relationship between the defendant and the Commission that allegedly caused the plaintiff substantial harm. Although it was party to only one of the previous related cases, the defendant argues in support of summary judgment that principles of res judicata and collateral estoppel preclude the plaintiff from asserting six out of the eight subparagraphs comprising the plaintiff's CUTPA claim. Specifically, the defendant argues that the CUTPA claim is derivative of the plaintiff's prior litigated claims alleging that the Commission violated her rights. The defendant further argues that since the previous litigation has failed to establish any wrongdoing committed by the Commission, then the defendant cannot be held liable for influencing a wrongdoing that did not actually occur. Accordingly, the defendant argues that the plaintiff should be estopped from relitigating the issues and claims relating to the Commission's alleged bad acts, and counts 6A-6D, 6F and 6H should be dismissed.
Defendant was also a party in Blinkoff v. Planning Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 98 0078081 (June 23, 1999, Pickett, J.).
"The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation." Gionfriddo v. Gartenhaus Cafe, 15 Conn.App. 392, 401, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989). "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). "[C]ollateral estoppel, or issue preclusion, is that aspect of res judicata that prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim." (Internal quotation marks omitted.) Albahary v. Bristol, 276 Conn. 426, 444, 886 A.2d 802 (2005).
In Efthimiou v. Smith, 268 Conn. 499, 507, 846 A.2d 222 (2004), the Supreme Court held that defensive collateral estoppel barred the relitigation of claims where the liability of one individual was predicated on a finding of liability on another. The relevant facts of the Efthimiou case are as follows. Prior related litigation had concluded that a husband did not breach his fiduciary duties related to a trust controlled by his wife. A separate action was then brought against his wife, alleging that she aided and abetted her husband's improper transfer of funds to the trust she controlled. The court found defensive collateral estoppel to apply to bar relitigation of issues in the suit against the wife to the extent that the issues involved the propriety of a transfer of funds between the husband and his wife. Specifically, the court held: "It is clear that any liability of the defendants to the plaintiff in the present action is derivative of [the husband's] liability to the plaintiff. It is also clear that [the husband's] liability to the plaintiff for his dealings with the defendants was `properly raised in the pleadings or otherwise, submitted for determination, and in fact determined' in the companion case . . . Further, that determination was essential to the judgment in the companion case, and it remains unchallenged . . . Accordingly, we conclude that [the husband's] liability to the plaintiff was actually litigated and necessarily determined in the companion case and, therefore, that the doctrine of collateral estoppel precludes the plaintiff from relitigating that issue in the present appeal." Id.
In the present action, the six subparagraphs that the defendant argues are barred by principals of collateral estoppel all relate to the conduct of the town officials allegedly under the influence of the defendant. These six subparagraphs allege a pattern of cause and effect. The defendant has allegedly paid town officials through a payroll scheme and political contributions, thereby causing the Commission to improperly deny permits, apply unequal business regulations, create bid specifications, and use bid waivers when beneficial to the defendant. Thus, according to the defendant, the issue of the defendant's liability is vicariously predicated on the showing of improper conduct by the Commission. The allegations of employment (6A) or political contributions (6B) standing alone would not support a CUTPA claim.
The federal complaint provided a detailed history of purported misconduct by the town and specific named individuals, including Turri and Pacheo. The detailed allegations of misconduct include several counts which directly address the issue of whether the Commission and its members acted inappropriately in their dealings with the plaintiff. The court finds it significant that several of the allegations of discrimination by the town officials, forming the factual basis of the eight-count federal complaint, are repeated in the present action. The plaintiff has previously alleged the following forms of discrimination in her federal complaint: (1) limiting the days and hours of operation to less than those of other competitors and applying more onerous conditions on her quarry; (2) selective enforcement of zoning regulations and laws; (3) refusing to purchase product from her; (4) applying more onerous conditions and requirements on her quarry than on her competitors; and (5) denying her special permit application when her competitor (the defendant) was granted the permit for similarly situated property. The court finds that the issues raised in these allegations are the same issues raised in subparagraphs 6C, 6D and 6F of the plaintiff's current claim against the defendant.
The above allegations were incorporated into each count of the federal complaint and two counts are particularly relevant to the present case. In count four of the federal complaint, the plaintiff alleged a denial of substantive due process as a result of the Commission's conduct. In the analysis of this claim, the court looked to see whether the town was acting within the bounds of its discretion when dealing with the plaintiff. While the federal court found that the plaintiff did not have a protected property interest in the unrestricted operation of her business, it did find that a reasonable jury could find that the town did not have discretion to deny the permit to excavate the adjoining lot, thereby creating a protected property interest. The issue of whether the town was acting within its discretion in the manner in which the plaintiff's business was regulated, was fully litigated and necessarily determined when the federal district court granted summary judgment for most of count four. A limited claim for the 1997 permit application for the adjoining lot survived summary judgment and when this issue was presented to the jury, individually naming the city of Torrington, David Frascarelli, Raymond Turri and Rita Pacheo, the jury found in favor of the named defendants. Specifically, the jury found that the above-named individuals and the city did not violate Section 1983 by "acting arbitrarily and outrageously" in connection with the denial of the plaintiff's special permit application. The issue of the Commission's conduct as decided in the federal case will have a preclusive effect on the current litigation because the issue of misconduct by the town is the foundation of the plaintiff's claim against the defendant. The court also notes that the plaintiff relies heavily on allegations of impropriety on the part of Turri and Pacheo to support her allegations of improper influence by the defendant, and a federal jury has already concluded that their conduct, specifically, was not improper.
The denial of the special permit application was the subject of the plaintiff's appeal in Quality Sand Gravel v. Planning Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 97 0074499 (June 1, 1998, Pickett, J.).
In count five of the federal complaint, the plaintiff alleged tortious interference of a business expectancy. Tortious interference with a business expectancy requires a showing that an individual intentionally interfered with another's business, causing harm to the business. The federal court granted summary judgment for most of count five due to governmental immunity, but a limited claim relating to the 1997 special permit application survived summary judgment. When this issue was presented to a jury, and decided on the merits after a full trial, the jury found that the plaintiff was unable to sustain her burden to support her allegations against any of the named defendants. The jury found that the city of Torrington, David Frascarelli, Raymond Turri, and Rita Pacheo, did not tortiously interfere with the plaintiff's business expectancy. Once again, the court finds it significant that specific allegations of improper conduct on the part of Turri and Pacheo relating to the 1997 special permit application were fully litigated on the federal level and necessarily determined in favor of both Turri and Pacheo by a federal jury.
Similar to Efthimiou, the liability of the defendant to the plaintiff in the present action is derivative of the Commission's and its members' liability to the plaintiff. The plaintiff made detailed allegations of misconduct by the Commission, and specifically named individuals, in her federal complaint. These issues were fully litigated and necessarily determined by a federal jury n favor of the city and its officials. The court also notes that summary judgment was granted on a majority of the plaintiff's claims prior to trial. In the counts where governmental immunity was not the basis for summary judgment, the underlying factual issues were actually litigated and necessarily determined in the federal court's grant of summary judgment. Therefore, the court concludes that the doctrine of collateral estoppel precludes the plaintiff from relitigating the issue in the present case in order to extend liability vicariously to the defendant for acts already determined to be acceptable. Absent the showing of improper conduct by the town or other city officials, the plaintiff's allegations contained in subparagraphs 6A-6D, 6F and 6H must fail.
Summary judgment was granted in favor of the defendants for most of counts four, five and seven. The court allowed a limited claim to remain after summary judgment on these respective counts to the extent that the plaintiff's claims related to the 1997 special exception permit application. Summary judgment was granted in favor of the defendant for counts six and eight in the entirety.
A majority of the issues related to the state tort actions, disputed in counts five through seven of the federal complaint, cannot have a preclusive effect on the present proceeding. In deciding these claims, the court did not determine that the Commission acted inappropriately, rather, the claim was dismissed in part due to the application of governmental immunity from suit. These claims were not actually litigated and necessarily determined, and, therefore, cannot have a preclusive effect on future litigation.
2. Statute of Limitations
The defendant also moves for summary judgment on subparagraphs 6A-6F and 6H of the plaintiff's amended complaint, which allege multiple violations of CUTPA, on an alternate ground. The defendant argues that the statute of limitations set forth in the CUTPA statute, § 42-110g(f), bars seven out of the eight subparagraphs set forth in the amended complaint since the alleged violations occurred prior to February 20, 1998.
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). General Statutes § 42-110g(f), which governs CUTPA claims, provides: "An action under this section may not be brought more than three years after the occurrence of a violation of this chapter." "Where . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter." (Internal quotation marks omitted.) Avon Meadow Condominium Association, Inc. v. Bank of Boston Connecticut, 50 Conn.App. 688, 699-700, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Furthermore, "[s]ince CUTPA violations are defined in General Statutes § 42-110b to include `deceptive acts or practices in the conduct of any trade or commerce,' it is evident that the legislature intended that the perpetrators of such fraudulent practices, as well as other CUTPA violators, should be permitted to avail themselves of the statute of limitations defense provided by § 42-110g(f). Despite the existence in other states of statutes of limitation applicable to unfair trade practices establishing a limitation period for bringing an action that begins after discovery of the violation, our legislature has failed to create such an option for victims of CUTPA violations in this state." (Internal quotation marks omitted.) Willow Springs Condominium Association, Inc. v. Seventh BRT Development Corporation, 245 Conn. 1, 45-46, 717 A.2d 77 (1998).
Looking first to the documents submitted to support the plaintiff's allegations of impropriety by Turri and Pacheo, it is apparent that many of the documents relate to events predating the relevant statute of limitations period. To establish improper influence on Turri, the plaintiff submitted numerous building permits and electrical permits that demonstrate a business relationship between Turri and the defendant for several projects. A majority of these applications predate the statute of limitations period. (See Appendix A, 8, 10, 12, 25, 27, 29.) Only two applications fall within the statutory period, both listing Turri as the contractor applying for electrical permit. (See Appendix A, 9 and 11.) A corresponding building permit for the same projects, listing the defendant as the applicant, was not submitted. The plaintiff also submitted the application of Rita Pacheco for the position on the council of the Permanent Commission in the Status of Women. Attached to this application is a letter of recommendation from Ray Oneglia, representative of the defendant, where he states he has known Rita Pacheco for more than twenty years. This letter is dated March 26, 1996, well outside of the statutory period. The court finds that the acts relied upon by the plaintiff to show CUTPA liability falls outside of the statute of limitations. Although the court has already found that collateral estoppel precludes relitigation of the conduct of the town and the commissioners, in the alternative, the court finds the statute of limitations to be an equally valid ground for summary judgment because the allegations of an improper relationship between the defendant and Turri and Pacheo are based on misconduct that falls outside the CUTPA statute of limitations.
The allegations of an improper relationship with Bruce Hoben were not previously litigated, but still fail because the documents submitted by the plaintiff to show impropriety on the part of Bruce Hoben are based on acts and events that occurred outside of the statute of limitations period. To show the existence of an improper relationship, the plaintiff submitted the memorandum sent to the Commission by Hoben, discussing his recommendations relating to the plaintiff's special exception application and the plaintiff's parcel of land. This memorandum was submitted to the Commission on May 7, 1997. The plaintiff also submits the memorandum submitted to the Commission by Hoben, detailing the data submitted by the plaintiff in support of her application. This memorandum was dated June 25, 1997. The plaintiff also submitted the Commission's minutes from the same June 25, 1997 meeting when Hoben presented his report to he Commission after the public hearing on the application for a special exception filed by the plaintiff. All of these events fall outside of the statute of limitations period.
The plaintiff submitted one document that would fall within the statute of limitations regarding an improper relationship but it is not relevant or in proper evidentiary form. This document is a photocopy of a letter addressed to Chairman Moody of the Woodbury Zoning Commission and sent by Hoben's company, Planimetrics. The letter included a lengthy report, signed by Hoben, after reviewing the application of O G Industries to change the zoning of their Stiles Road quarry in Woodbury. This letter is dated July 12, 1999. (Appendix A, 31).
In response to the defendant's argument that the statute of limitations has expired on her claim, the plaintiff argues that the continuing course of conduct doctrine is applicable to her claim, thereby tolling the statute of limitations for all allegations that would otherwise be time-barred. The plaintiff also argues that the sham appeals taken by the Torrington officials occurred within the statutory period. These two arguments constitute a large portion of her argument against the application of the statute of limitations. The plaintiff does not address the timeliness of her other allegations.
Pursuant to the continuing course of conduct doctrine, "[w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed." (Internal quotation marks omitted.) Sanborn v. Greenwald, 39 Conn.App. 289, 295, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). Therefore, in certain circumstances, the statute of limitations "may be tolled under . . . the continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date." Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994). "[A] precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff . . . Second, there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto . . . [T]hat continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct . . ." (Internal quotation marks omitted.) Rosenfield v. Rogin, Nassau, Caplan, Lassman Hirtle, LLC, 69 Conn.App. 151, 161, 795 A.2d 572 (2002). "The doctrine of continuing course of conduct as used to toll a statute of limitations is better suited to claims where the situation keeps evolving after the act complained of is complete." Sanborn v. Greenwald, supra, 297-98.
The plaintiff argues that the repetitious appeals and denial of her permits by the city constitute a continuing wrong. Subparagraphs 6A, 6B and 6C are the only subparagraphs that relate in any way to the defendant influencing the city to deny permits and pursue "endless" appeals. Whether the statute of limitations is tolled for the violations alleged in subparagraphs 6A, 6B and 6C is therefore dependent on an extension of vicarious liability to the defendant for the conduct of the city. As discussed previously, the conduct of the town and the commissioners has been fully litigated and necessarily determined by a federal jury and is therefore precluded from subsequent relitigation. Without this basis for the extension of vicarious liability, the court finds the doctrine of continuing wrong to be inapplicable in this case.
In addition to arguing that the statute of limitations is tolled for the claims, the plaintiff also argues that the defendant's violation of CUTPA occurred within the three-year statutory period because the Torrington officials engaged in numerous sham appeals within that period. Similar to the application of the doctrine of continuing wrong, this argument is applicable only to subparagraphs 6A, 6B and 6C. The plaintiff argues that such baseless litigation, conducted solely to delay or harass a competitor, constitutes a violation of CUTPA. In the brief in opposition, however, the plaintiff does not allege any involvement of the defendant in the "sham appeals."
The revised complaint has not included any allegations of sham appeals, however, this could be seen as an extension of subparagraph 6C — Causing permits to be denied.
Reviewing the dates of the litigation, the court notes that the initial denial of the plaintiff's special exception permit application occurred on July 23, 1997, and the plaintiff appealed on August 8, 1997, outside of the three-year statute of limitations. The city subsequently appealed the decision, within the statutory time limit set forth in § 42-110g(f), after the court found in favor of the plaintiff.
The plaintiff's entire argument that her claim is not time-barred is based on the existence of an improper relationship between the defendant and the Commission. The only alleged violations that occurred within the statutory period set forth in § 42-110g(f) are based on the conduct of the city, allegedly acting under the influence of the defendant. It is significant to the court that a federal jury has reviewed the core facts of this dispute and ruled against the plaintiff as to the city and its officials. Paragraphs 46 through 50 of the plaintiff's federal complaint specifically refer to the Commission's denial of the special exception permit. (See Ex. 14, Defendant's Motion for Summary Judgment.) It is not appropriate to place vicarious liability on the defendant for act of principals (the Commission and city employees) where no liability has been placed upon the principals in the first instance. The court therefore rejects the plaintiff's argument to bring her claims within the statutory period by extending liability to the defendants for what has previously been determined to be proper conduct by the town. The statute of imitations, therefore, bars the litigation of subparagraphs 6A, 6B, and 6C.
Additionally, the sham appeals and the denial of the plaintiff's permits, even if attributable to the defendant, do not affect the statute of limitations for violations resulting from unequal business arrangements (6D), tying arrangements (6E), bid specifications favoring the defendant (6F), and bid waivers (6H). On these counts, the plaintiff has not offered any evidence to contradict the argument of the defendant that the claims are time-barred. In fact, the plaintiff has failed to submit any documentary evidence to support even the factual basis for these claims. In the absence of a disputed issue of material fact concerning the statute of limitations, summary judgment is appropriate on these subparagraphs. See Burns v. Hartford Hospital, supra, 192 Conn. 452.
3. Noerr-Pennington Doctrine
This court has already concluded that collateral estoppel precludes litigation of the issue of the town's misconduct and that the statute of limitations has expired on seven out of the eight subparagraphs of the plaintiff's complaint. The court also recognizes, however, the alternate ground for summary judgment of subparagraphs 6C, 6D and 6F under the Noerr-Pennington doctrine. The general allegations set forth in these subparagraphs relate to the alleged involvement of the defendant in the decision making process of the Commission. Specifically, the subparagraphs allege that defendant caused the Commission to deny plaintiff's permits, apply unequal business regulations and implement bid specifications that favor the defendant. The allegations assert a vicarious liability on the defendant based upon its control or influence over the boards and commissions of Torrington.
The Noerr-Pennington doctrine, though federal in origin, was adopted by the Connecticut Appellate Court in Zeller v. Consolini, 59 Conn.App. 545, 554, 758 A.2d 376 (2000). The court in Zeller held that the doctrine "shields from the Sherman [Antitrust] Act . . . a concerted effort to influence public officials regardless of intent or purpose . . . [and] has evolved from its antitrust origins to apply to a myriad of situations in which it shields individuals from liability for petitioning a governmental entity for redress." (Citations omitted; internal quotation marks omitted.) Id., 550-51. In adopting the doctrine, the court cited the reasoning of a United States Supreme Court case which stated, "[i]t would be destructive 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 procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors." California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). As a result of this reasoning, the court found the doctrine to be applicable not only to antitrust cases but also to "claims which [seek] to assign liability on the basis of the defendant's exercise of its first amendment rights." (Internal quotation marks omitted.) Zeller v. Consolini, supra, 59 Conn.App. 551.
The doctrine originated from "a trio of federal antitrust cases" decided by the United States Supreme Court. See Eastern Railroad Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, reh. denied, 365 U.S. 875, 81 S.Ct. 899, 5 L.Ed.2d 864 (1961); United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); and California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972).
While Zeller opened the door for the "myriad of situations," the court also recognized that the protection from liability was not limitless and carved out an exception to the protection afforded by the doctrine. "[P]etitioning activity is not protected if such activity is a mere sham or pretense to interfere with no reasonable expectation of obtaining a favorable ruling." Zeller v. Consolini, supra, 59 Conn.App. 552. The court in Zeller set forth a two-prong test that must be satisfied in order for the alleged sham litigation to fall outside of the protections of the Noerr-Pennington doctrine. "First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits . . . 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 anticompetitive weapon . . ." (Citation omitted; internal quotation marks omitted.) Id., 552.
In the present case, the defendant argues that subparagraphs 6C, 6D and 6F should be subject to summary judgment under the Noerr-Pennington doctrine. The defendant argues that the Noerr-Pennington doctrine entitles it to petition the city for consideration of applications without fear of liability. The plaintiff argues that the Noerr-Pennington doctrine does not apply because the defendant's conduct satisfies the requirements of a "sham" as dictated in the federal cases that originally developed the doctrine.
In Zeller, the plaintiff claimed that the defendant "tortiously interfered with a business relationship and initiated vexatious litigation" due to challenges made by the defendant against the plaintiff's applications before the planning zoning commission of Torrington. Zeller v. Consolini, supra, 59 Conn.App. 547. After each zone change granted to the plaintiffs by the Commission, the defendants appealed. The appeals were dismissed by the Superior Court, and the defendants sought certification with the Appellate Court. After certification was denied on two occasions, certification was granted on the third petition and the judgment of the trial court was affirmed. The action in Zeller resulted after the defendants once again appealed the grant of a zone change. When faced with the issue of whether "sham litigation" occurred, the court set forth several factors it deemed determinative of the existence of a sham. "Factors present in sham litigation include, but are not limited to, the presence of repetitive litigation . . . deliberate fraud, supplying false information, and whether lower courts have stated or implied that the action is frivolous, or objectively baseless . . ." Id., 555. Ultimately, the court found the multiple attempts by the defendants to be an attempt "to use whatever lawful means were at their disposal to challenge the plaintiff's activities on substantive grounds." Id., 558. The court further noted that the subsequent appeals were "legally available . . . and followed applicable judicial procedure. Merely because those attempts failed does not in itself make them baseless acts." Id., 560.
In the present case, the defendant did not appeal any decision granted in favor of the plaintiff by the Commission. The Commission did appeal the trial court's decision sustaining the plaintiff's appeal of the denial of her application. On appeal the trial court's decision was upheld, although the appellate court noted a disagreement with portions of the trial court's reasoning. The plaintiff alleges that the defendant vicariously engaged in the sham appeal through their improper relationship with the Commission, which thereby denied the plaintiff meaningful access to adjudicatory tribunals.
The plaintiff cites to the decision of California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), to support the allegation that the defendant's conduct falls within the exception of Noerr-Pennington. In California Motor Transport Co., the respondent, a group of highway carriers, alleged that the petitioners, also highway carriers, conspired to "monopolize the transportation of goods by instituting state and federal proceedings to resist and defeat applications by respondents to acquire, transfer, or register operating rights." Id., 508. The court found in favor of the respondent.
Applying the two-part test set forth in Zeller to determine whether sham litigation occurred, this court finds that the defendant's actions do not qualify as sham litigation. The Commission's alleged actions do not satisfy either prong of the twotpart test because there is no evidence in the record that the Commission's appeals were "objectively baseless" or that "a reasonable litigant could not realistically expect success on the merits." While the plaintiff cites authority which stated the sham exception is also applicable when a party "sought to bar their competitors from meaningful access to adjudicatory tribunals and so to usurp the decision making process," California Motor Transport Co. v. Trucking Unlimited, supra, 404 U.S. 512, the plaintiff fails to acknowledge that the defendant in that action allegedly utilized extensive appeals and court proceedings to bar access to the courts. This is not the case here. The conduct of neither the defendant or the Commission acted to bar the plaintiff's access to the courts. In fact, the extensive litigation history of this case stands as a testament to the high degree of accessability that the plaintiff has experienced.
It is the plaintiff's argument that the appeals taken by the Commission can be used against the defendant due to the existence of an improper relationship. As discussed above, the plaintiff is collaterally estopped from extending vicarious liability to the defendants for the conduct of the town. Therefore, the plaintiff's argument that the defendant can be held liable for any appeals undertaken by the Commission is without merit.
2. Factually False
This court has already found summary judgment to be appropriate for seven out of the eight subparagraphs based on collateral estoppel, statute of limitations and the Noerr-Pennington doctrine. Therefore, the court need not look to the factual accuracy of the allegations for any subparagraph except 6G, involving allegations that the defendant enforced noncompete agreements to the detriment of the plaintiff.
While this court does not analyze the factual basis for a majority of the plaintiff's claims, it does note that the defendant offered extensive evidence to establish that there was not a factual foundation to support the plaintiffs' allegations and that an improper economic relationship did not exist. In contrast, much of the material offered by the plaintiff to support her allegations is not in the form of admissible evidence. The court also recognizes that the pro se plaintiff sought to subpoena Raymond Turri, a non party, to testify at the argument of the present motion. The court quashed the subpoena. The pro se plaintiff at one point, also requested that she be sworn in by the court so that she could provide her own testimony in opposition to this motion. The court notes that the Practice Book creates a number of discovery tools which are available to all parties and through which testimony or statements under oath. The plaintiff cannot ignore or fail to use those tools and turn a summary judgment motion into a contested testimonial hearing. The plaintiff, with the assistance of her co-counsel could have submitted her own affidavit in opposition to this motion.
Subparagraph 6G alleges that the defendant "enforc[ed] non-competition agreements against potential competitors in the Torrington area. In support of summary judgment on this subparagraph, the defendant offers the signed and sworn affidavit of Raymond Oneglia, the vice-chairman of the defendant corporation. In the affidavit, Oneglia attests, "O G has not entered into any agreement, formal or informal, with Gorman Brothers or any other competitor of O G that would limit or restrict the competitor's right to sell its product in competition with O G." This evidence directly contradicts the allegations of the plaintiff.
The plaintiff's brief in opposition is rife with allegations of events and conversations relating to the alleged non-compete agreement. The plaintiff discusses conversations that occurred between her and Gorman Brothers, the company who purchased an option contract for use of her land, as well as conversations she had with former customers allegedly affected by the alleged non-compete agreement. The plaintiff also mentions list prices published by Gorman Brothers that allegedly demonstrated the different prices charged compared with the defendant. Again, no affidavits or depositions of witnesses taken by the plaintiff were submitted by the plaintiff in opposition to this motion. The defendant did submit a portion of the plaintiff's deposition in support of its motion. A review of the deposition shows that the plaintiff relies upon hearsay to support her claim of a non competition agreement (Plaintiff's deposition, p. 212-13). The plaintiff's documents, however, fail to supply any reliable or admissible evidence to create a dispute of fact for presentation to a jury.
C. Conclusion
The defendant has withstood the strict standard applied to a movant for summary judgment. In response to the defendant's affidavits and supporting material, the plaintiff has not created disputes as to the material facts. While the plaintiff submitted extensive documentary evidence, the evidence was generally inadmissible. Even if the court ignored the procedural deficiencies, the plaintiff has not met her burden. The court is mindful that this motion is dispositive of the plaintiff's case. The court has reviewed the substantial filings from both the plaintiff and the defendant to determine if there was a basis for finding a dispute as to a material fact. It has been unable to do so. Furthermore, neither the pro se plaintiff nor the corporate plaintiff have used the discovery tools available to present sufficient evidence to support their contentions.
For all the above reasons, the motion for summary judgment of the defendant is granted as to the plaintiffs Holly Blinkoff and Quality Sand Gravel, Inc.
APPENDIX A
1. Memorandum of Decision from Commission on Human Rights and Opportunities v. City of Torrington, 96 Conn.App. 313, 901 A.2d 46 (2006).
2. Memorandum of Decision from Quality Sand and Gravel, Inc., v. Planning and Zoning Commission of the City of Torrington, 55 Conn.App. 533, 738 A.2d 1157 (1999).
3. Memorandum of Decision from Quality Sand and Gravel, Inc. v. Planning and Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 97 0074499 (June 1, 1998, Pickett, J.T.R.) 4. Memorandum of Decision from Blinkoff v. Planning and Zoning Commission of the City of Torrington and O G Industries, Superior Court, judicial district of Litchfield, Docket No. CV 98 0078081 (June 23, 1999, Pickett, J.T.R.).
5. Subpoena for documents involving O G Industries, in the possession of Holly Blinkoff. Subpoena sent by the State of Connecticut Attorney General. (July 14, 2006)
6. Court opinion from Blinkoff v. O G Industries, Inc., 89 Conn.App. 251, 873 A.2d 1009 (2005).
7. Defendant (Raymond Turri) Response to First Set of Interrogatories to Defendant, Planning and Zoning Commission for the City of Torrington et al. (Nov. 18, 1998)
8. Building Permit with O G as the applicant and Charlotte Hungerford Hospital as the owner. (November 10, 1997)
9. Application for Electrical Permit listing Raymond Turri as the contractor, to work on property owned by Charlotte Hungerford Hospital (Oct. 14, 1998).
10. Application for Electrical Permit, listing Raymond Turri as the contractor, to work on property owned by Charlotte Hungerford Hospital (Nov. 17, 1997).
11. Application for Electrical Permit listing Raymond Turri as the contractor, to work on property owned by Charlotte Hungerford Hospital (Dec. 14, 1998).
12. Building Permit with O G as the applicant and Charlotte Hungerford Hospital as the owner. (May 1, 1997)
13. Defendant (Rita Pacheo) Response to First Set of Interrogatories to Defendant, Planning and Zoning Commission for the City of Torrington et al. (Nov. 18, 1998)
14. Deposition of Raymond Turri (May 8, 2000) (Prepared for federal court case).
15. Memorandum sent to all boards and commissions, providing guidelines regarding conflict of interest and voting abstention. Memo sent by Albert Vasko, at the request of Mayor Donne. (Dated March 16, 1995)
16. Deposition of Rita Pacheo (March 23, 2000) (prepared for federal court case).
17. Photocopy of a Letter from Mayor Gryniuk to Rita Pacheo, requesting the Planning and Zoning Commission to meet with City Council in Executive Session, regarding countersuit against Blinkoff. (March 3, 1998)
18. Photocopy of a Letter from Mayor Gryniuk to Raymond Turri, requesting the Planning and Zoning Commission to meet with City Council in Executive Session, regarding countersuit against Blinkoff. (March 3, 1998)
19. Photocopy of Letter from David Frascarelli (Chairman of Planning and Zoning Commission) to the Board of Councilman. Letter requests approval of the Commission's decision to hire Martin Gould as legal council for each member of the Commission.
20. Pamphlet requesting contributions to help restore Fuessenich park. Pamphlet is signed by Ray Oneglia and Ray Turri.
21. Defendant (Dan McGuinness) response to the first set of interrogatories to Defendant, Planning and Zoning Commission for the City of Torrington et al.
22. Application of Rita Pacheo for the position on the council of the Permanent Commission in the Status of Women. Attached is letter of recommendation from Ray Oneglia, where he states he has known Rita Pacheo for 20+ years. (March 26, 1996).
23. Letter addressed to David Frascarelli, from an unknown person stating concerns that the planning and zoning commission has consistently placed the interests of O G in front of the interests of the town.
24. Deposition of Bruce Hoben (May 8, 2000) (prepared for the federal court case).
25. Application for an electrical permit listing Raymond Turri as the contractor, to work on property owned by O G Industries (March 21, 1997).
26. Building Permit application for O G Industries for renovations to be completed as Charlotte Hungerford Hospital (May 1, 1997) (this is duplicate of copy submitted #12).
27. Building Permit application for O G Industries for work to be conducted at Charlotte Hungerford Hospital. (June 12, 1995)
28. Application for an electrical permit listing Raymond Turri as the contractor, to work on property owned by Charlotte Hungerford Hospital (December 14, 1998) (this is duplicate of copy submitted #11).
29. Building Permit application for O G Industries for work to be conducted at Northwest Connecticut Association for the Arts (August 25, 1997).
30. Building Permit application for O G Industries for work to be conducted at Charlotte Hungerford Hospital. (May 1, 1997) (this is duplicate of copy submitted #12).
31. Photocopy of a letter addressed to Chairman Moody of the Woodbury Zoning Commission. Letter is sent by Planimetrics, after reviewing the application of O G Industries to change the zoning of their Stiles Road quarry in Woodbury. Lengthy report is included in the letter, signed by Bruce Hoben. (July 12, 1999)
32. Letter to Attorney Vincent Sabatini from Kenneth Hrica of CCA LLC, regarding Blinkoff's quarry and the 400-foot buffer proposed by Bruce Hoben (Nov. 30, 1999).
33. Letter to David Frascarelli, Chairman of the Torrington Planning and Zoning Commission from Kenneth Hrica, of CCA LLC. Letter is in regards to the special exception application filed by Blinkoff on behalf of her quarry. (May 14, 1997)
34. Memorandum sent to Torrington Planning and Zoning Commission by Bruce Hoben, planning Consultant. Subject of memorandum is the special exception application of Quality Sand and Gravel (Blinkoff quarry) Ruot Parcel. Memorandum details Bruce Hoben's recommendations related to the parcel. (May 7, 1997)
35. Memorandum sent to Torrington Planning and Zoning Commission by Bruce Hoben, planning Consultant. Subject of memorandum is the special exception application of Quality Sand and Gravel (Blinkoff quarry). Memorandum details the data submitted by applicant in support of their application. (June 25, 1997)
36. City of Torrington Planning and Zoning Commission Minutes (June 25, 1997). Meeting of Commission after the public hearing on the application for a special exception filed by the plaintiff Bruce Hoben presents his report on plaintiff's application.
37. Letter addressed to Holly Blinkoff, sent by Dan McGuinness, city planner, suggesting that Blinkoff has erred in her perception of the procedures of the Planning and Zoning Commission.
38. Location Map
39. Proposed Quarry Expansion 260 Burr Mountain Road, Torrington, Connecticut. (Blinkoff Quarry)
40. Topographical Map of the Burrville Quarry.
41. O G Industries' Application for change of zone. (May 7, 1998)
42. Copy of documentation that Blinkoff's application for special exception was unanimously denied by the P Z Commission. (7/23/1997)
43. List of Petitioners opposing O G Industries' request to change current zoning from R60 to Industrial. (Not dated.)
44. P Z Commission Minutes (page 10) (June 10, 1998). Dan McGuiness argues in support of a zone change application filed by O G Industries.
45. Letter to P Z Commission, from Dan McGuinness, regarding the proposed amendment to the Plan of Development Zone Change from R-60 to Industrial. Applicant was O G Industries. (June 5, 1998)
46. Letter from Peter Herbst, legal counsel of O G Industries, to Richard Lynn, executive director of Litchfield Hills Council of Elected Officials. Letter summarizes telephone conversation between sender and recipient that discussed zone change application filed by O G Industries. Herbst requests written confirmation of Lynn's position for future public hearing on the matter. (May 18, 1998)
47. Excerpts of Plaintiff's and Defendant's oral argument before Judge Pickett, pending disposition in the case of Quality Sand Gravel v. Planning and Zoning Commission of Torrington. (May 11, 1998)
48. City of Torrington Planning Zoning Commission Minutes (page 4) setting date of public hearing for special exception application of Quality Sand Gravel. (April 23, 1997) (2 copies of this document)
49. City of Torrington Planning Zoning Commission Minutes (May 28, 1997) (Pages 1, 4, 8, 11, 13, 19-24, 32). Public hearing for plaintiff's special exception application.
50. City of Torrington Planning Zoning Commission Minutes (June 10, 1997) (pages 1-3, 9-11, 16-17, 20-29, 31-36).