Opinion
No. CV 07-4008719 S
May 12, 2010
MEMORANDUM OF DECISION
This is a decision on a motion for summary judgment filed by the defendant, city of Meriden, dated January 29, 2010.
By complaint dated November 8, 2007, the plaintiffs, Nipmuc Properties, LLC and Summitwood Development, LLC, brought suit against the defendants, the city of Meriden and the state of Connecticut Siting Council, arising out of the plaintiffs' claimed leasehold interest in a 52-acre parcel of property (the subject property) in Meriden. In their complaint, the plaintiffs allege two counts against the defendant and the following relevant facts. This court, M. Taylor, J., previously decided a motion to dismiss on June 12, 2008 in this file; and in doing so, the court provided a detailed factual description of this case. As no significant events have occurred relative to this case since that June 12, 2008 decision of this court, the court will herein adopt the factual description of this case as detailed in the prior motion in Nipmuc Properties, LLC v. Meriden, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 07 4008719 (June 12, 2008, M. Taylor, J.).
On December 26, 2007, the defendant Siting Council filed a motion to dismiss the complaint. That motion was granted by the court, M. Taylor, J., on June 12, 2008, as to count one of the complaint. Accordingly this decision will only make reference to the remaining defendant, the city of Meriden. It should be noted that the city of Meriden also filed a motion to dismiss on February 20, 2008, which was denied by the court, M. Taylor, J., on June 12, 2008.
"This is an action for declaratory relief to quiet and settle the title to a 52-acre parcel of land located in Meriden, in which the plaintiff, Nipmuc Properties, LLC (Nipmuc), claims a leasehold interest. This action was filed on November 15, 2007, and follows a previous action brought by the plaintiff, Nipmuc, to declare its rights to possession of the original lease, held in escrow. See Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0281664 (August 11, 2005, M. Taylor, J.), affirmed, 103 Conn.App. 90, 927 A.2d 978, cert. denied, 284 Conn. 932, 934 A.2d 247 (2007) (the Appellate Court held that approval of the lease agreement by the Connecticut Siting Council was a condition precedent to delivery of the original lease from the escrow agent) . . ."
In the earlier case involving Nipmuc, which will be referred to in this decision as `Nipmuc I' the court adopted stipulated findings of fact. They included the following facts, which the court refers to in these proceedings by way of background, and are not adopted by the court for any other purpose. On April 27, 1999, the Connecticut Siting Council issued to PDC-El Paso (PDC), a Certificate of Environmental Compatibility and Public Need (Certificate) for construction of an electric generation facility (Facility). The Certificate was issued in accordance with and subject to the terms and conditions set forth in the Siting Council's decision and order. The Siting Council's Findings of Fact stated: `Approximately 700 acres of land would be deeded to Berlin and Meriden on title interest. Some 30 acres of traprock ridges would be under a conservation restriction. About 60 acres around Beaver Pond in Meriden would be restricted to use as open space, recreational purposes, or educational use. An additional 14.6 acres of land would be placed under conservation restriction for vernal pool protection west of the 36-acre site.' The Siting Council's decision and order further stated: `The facility shall be constructed and operated substantially as specified by the certificate holder in the application and record, except where otherwise ordered by the council.' On August 2, 2001, Meriden Gas Turbine (MGT), the current owner of the land, submitted a development and management plan (DM Plan), requesting the Siting Council's approval of the construction of the access road to the power plant, site excavation and grading. On September 4, 2001, MGT submitted a second DM Plan to the Siting Council seeking to use different turbines at the Facility. On September 12, 2001, the Siting Council approved MGT's two DM Plans. On September 7, 2001, PDC submitted a document, entitled `Disposition of Land Within the Larger Parcel' to the Siting Council. On September 12, 2001, Joseph F. Carabetta, `Agent' for Nipmuc, wrote to Joel Rienbold, Executive Director of the Siting Council, asking that the `Siting Council give due consideration and support for the contact [sic] rights of NIPMUC to that 52 acres.' By letter dated September 14, 2001, `the Council denied a request by PDC-El Paso Meriden, LLC to retain 51.9+/- acres of land on the 845.5-acre site. The Council ruled that this 51.9+/- acre parcel of land be included in the acreage donated to the City of Meriden and the Town of Berlin, Connecticut, a total donation of 808.8 acres.'"
The court will summarize the plaintiffs' allegations, as follows. The 52-acre parcel of land subject to the disputed title in this case was part of a much larger 845-acre parcel located in Meriden and Berlin, and originally owned by Nipmuc. Summitwood Development, LLC (Summitwood), the second plaintiff in this action, contracted with Nipmuc for the exclusive right to purchase this larger property. On July 15, 1998, Summitwood entered into a trust agreement with PDC-EI Paso, LLC (PDC) to purchase the land from Nipmuc and sell it to PDC for the purpose of building a power generation facility. The agreement provided that Summitwood would retain the right to 30 acres within the larger parcel, for no consideration, with the particular location to be determined by the parties at a future date.
On April 27, 1999, the Siting Council issued a Certificate of Environmental Compatibility and Public Need (Certificate) to PDC. The Certificate was issued pursuant to General Statutes §§ 16-50g et seq., for the purpose of building the power generation facility on the larger, 845-acre parcel. On December 21, 2000, Summitwood and PDC amended their original trust agreement whereby Summitwood would retain the 30-acre parcel, and replace it with a new agreement to, upon closing, both quitclaim a 52-acre parcel to Summitwood and lease the 52-acre parcel to Summitwood or its nominee.
Although the nature of this transaction is unclear, these allegations suggest that Summitwood was intended to receive a quitclaim deed and Nipmuc was intended to receive a lease, both of which were to be applicable to the same 52-acre parcel.
On January 10, 2001, PDC assigned all its rights and obligations under its agreement with Summitwood to Meriden Gas Turbines, LLC (MGT). On the same day, MGT closed on the 845-acre parcel. The deed to this property refers to the lease in favor of Nipmuc as an encumbrance on the property. After MGT closed title to the 845 acres, PDC continued the process of obtaining the permits necessary to build an electric generation facility on the property. On September 7, 2001, PDC submitted a document to the Siting Council entitled `Disposition of Land Within the Larger Parcel,' which was followed by a letter from a representative of Nipmuc, dated September 12, 2001, specifically requesting consideration of its contractual rights under the 52-acre lease. By letter dated September 14, 2001, the Siting Council denied PDC's request to retain the 52 acres and ordered it to be transferred to Meriden.
In furtherance of its decision, the Siting Council brought an enforcement action against MGT in August of 2005, for the transfer of a 357-acre portion of the 845-acre parcel to Meriden; this portion being located within the geographical boundaries of the municipality, and including the disputed 52-acre parcel. In the enforcement action, Connecticut Siting Council v. Meriden Gas Turbines, Superior Court, judicial district of New Britain, Docket No. CV054007011 (January 13, 2006, Levine, J.), "a stipulation was executed by the parties in that case, requiring MGT to transfer the 357 acres to Meriden, subject to the 52-acre lease . . . Nipmuc, however, now alleges that Meriden has prevented it from taking possession of the land and has refused its tender of tax payments. Nipmuc and Summitwood also allege that the deed from MGT to Meriden was recorded in November of 2006 without listing the 52-acre lease as an encumbrance . . . There have been two decisions by the Siting Council adversely affecting the plaintiffs' alleged lease. Neither the original Siting Council order issued on April 27, 1999, nor the subsequent decision issued on September 14, 2001, allowed, as a condition for the issuance of the Certificate, MGT to transfer a leasehold interest in the 52-acre parcel to the plaintiffs. Instead, the Siting Council ordered the 52-acre parcel transferred to Meriden. Although the Siting Council initiated an enforcement action in 2005, the action resulted in a stipulation which allowed the lease to be listed as an encumbrance on the deed to Meriden, apparently without determining its validity or enforceability."
Count two of the plaintiffs' complaint alleges that "MGT's title to the 357 acres is subject to the Lease of 51.9±-acre parcel to NIPMUC. NIPMUC has not executed a release of the Lease as an encumbrance to MGT's title. Any conveyance of the 357 acres to the City is subject to the Lease to NIPMUC of the 51.9±-acre parcel. Despite demand, the City has failed to perform its obligations under the Lease, to wit, it has prevented NIPMUC from taking possession to the 51.9±-acre parcel. Equity requires that the City perform its obligations under the Lease, to wit, to allow NIPMUC to take possession to the 51.9±-acre parcel."
Count three alleges in relevant part that the "Plaintiffs have an encumbrance in the form of a lease on the 51.9±-acre parcel conveyed to the City by virtue of a Special Warranty Deed dated October 17, 2006 (the "Special Deed") and recorded in Vol. 3945 at Page 282 of the land records of the City of Meriden. A description of the Property is attached hereto as Exhibit A. MGT, the City's predecessor in interest, obtained its title to the property in question by warranty deed dated January 10, 2001. Such deed notes plaintiffs' Lease and makes such conveyance of the property subject to such Lease. The Special Deed from MGT to the City omitted the Lease as an encumbrance. Plaintiffs have not executed a release moving its Lease as an encumbrance. There are no known claimants, or possible claimants, to the property described in this action other than those named herein. Plaintiffs claim a judgment determining the rights of the parties in or to the land and settling title thereto . . ."
On January 25, 2008, the defendant, city of Meriden, filed an answer and twelve special defenses to the plaintiffs' complaint. The defendant's third special defense as to counts two and three states that the plaintiffs' claims are barred by the doctrine of res judicata. The plaintiffs filed a reply to the defendant's special defenses on July 11, 2008, denying "each and every" special defense. On January 29, 2010, the defendant filed a motion for summary judgment as to the second and third counts of the plaintiffs' complaint and a memorandum of law in support thereof. The plaintiffs filed a corrected memorandum in opposition to the defendant's motion for summary judgment on March 8, 2010. The defendant filed a reply to the plaintiffs' opposition dated March 15, 2010. The plaintiffs filed a supplemental memorandum in opposition to the defendant's motion on April 1, 2010. Finally, the defendant filed a reply to the plaintiffs' supplemental memorandum in opposition to its motion for summary judgment on April 9, 2010. The matter was heard at short calendar on April 12, 2010.
I.
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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "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).
"[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).
II.
In furtherance of its motion for summary judgment, the defendant argues that: (1) the plaintiffs' claims in counts two and three are barred by the doctrine of res judicata by virtue of Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0281664 (August 11, 2005, M. Taylor, J.), aff'd, 103 Conn.App. 90, 927 A.2d 978, cert. denied, 284 Conn. 932, 934 A.2d 247 (2007) (collectively referred to herein as Nipmuc I); (2) the plaintiffs are collaterally estopped from asserting the issues underlying the claims contained in counts two and three by virtue of Nipmuc I; and (3) the plaintiffs lack standing to bring any claim under the lease at issue because the lease was never delivered from escrow by the escrow agent to the plaintiffs, and thus delivery of the lease is absent depriving the plaintiffs of any ability to enforce any rights under, or bring an action to quiet title to, said lease. The defendant argues that the issue of whether delivery from escrow was appropriate was decided in the negative in Nipmuc I.
In opposition to the defendant's motion for summary judgment, the plaintiffs argue that res judicata and collateral estoppel are inappropriate here because "the Declaratory Judgment Action concerned only the rights of plaintiffs to release of the original Lease document from escrow by the escrow agent, whereas the current case before this Court involves infringement of plaintiffs' rights concerning possession of the property at issue after the Declaratory Judgment Action was concluded and after the transfer of title to the City . . . The instant matter involves different contractual undertakings not within the nucleus of operative facts or temporal parameter common to the Declaratory Judgment Action." The plaintiffs argue that delivery of the original document from escrow is not necessary for them to take action on their legal rights under the lease, and there "is no common law or statutory requirement that a lease be delivered from escrow, or that the tenant be in physical possession of a lease document in order for that lease to be valid." Plaintiffs contend that the lease has been recorded on the land records, and even if not recorded it would not render the lease void, but rather "merely voidable by creditors and bona fide purchasers," of which the defendant is neither. Finally, the plaintiffs argue that they have standing to bring the instant action because they "have demonstrated specific, personal and legal interests in the enforcement of their rights under the Lease and the status of the encumbrances on the subject property."
In reply to the plaintiffs' opposition, the defendant argues that any claim made by the plaintiffs of a right to use and occupy the subject property separate and apart from the lease is not part of the plaintiffs' complaint and thus cannot now be considered by the court at the summary judgment stage of the proceedings.
In their supplemental memorandum in opposition to the defendant's motion for summary judgment, the plaintiffs argue that they "do not assert that delivery of the lease document was dependent on a favorable decision by the Siting Council on DM plans submitted by MGT, but rather that plaintiffs' rights to use and possess the 52-acre parcel were dependent solely upon that decision." The plaintiffs further contend that "the subject matter of plaintiffs' complaint is not the lease document that is in escrow," but rather "the leasehold rights and interests in the 52 acre parcel separate and apart from the issue of the lease document from that escrow." As such, the plaintiffs argue that their right to use, possess and occupy that 52-acre parcel "is part and parcel of the claims asserted in the complaint in this action."
In reply to the plaintiffs' supplemental memorandum in opposition, the defendant argues that any claim by the plaintiffs of an oral agreement to use and occupy the property separate and apart from the lease is not a part of the complaint and is otherwise barred by the statute of frauds. The defendant asserts that the allegations of the complaint as well as the plaintiffs' March 14, 2008 objection to the defendant's motion to dismiss clearly indicates that the complaint is based on the lease currently held in escrow.
At oral argument, the plaintiffs clarified that they do not argue an oral agreement existed apart from the lease, but rather that they have a leasehold interest in the subject property that is separate and distinct from the physical lease currently held in escrow.
III.
The defendant's third special defense as to counts two and three alleges that the plaintiffs' claims are barred by the doctrine of res judicata. "[S]ummary judgment is an appropriate vehicle for raising a claim of res judicata . . ." (Citations omitted.) Joe's Pizza, Inc. v. Aetna Life Casualty Co., 236 Conn. 863, 867 n. 8, 675 A.2d 441 (1996). "[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties] on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it." (Internal quotation marks omitted.) Bridges v. Commissioner of Correction, 97 Conn.App. 119, 122, 905 A.2d 103, cert. denied, 280 Conn. 921, 908 A.2d 543 (2006). "Res judicata is a doctrine grounded in public policy, whose primary function is to prevent the relitigation of issues already decided in a court of competent jurisdiction." Dunham v. Dunham, 221 Conn. 384, 391, 604 A.2d 347 (1992).
"In deciding whether the doctrine of res judicata is determinative, we begin with the question of whether the second action stems from the same transaction as the first. We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the transaction arose. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understandings or usage . . . In applying the transactional test, we compare the complaint in the second action with the pleadings and judgment in the earlier action." (Citations omitted; internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 604, 922 A.2d 1073 (2007).
"The purpose of a lawsuit is not only to do substantial justice but also to bring about an end to controversy . . . Res judicata is a doctrine grounded in public policy, whose primary function is to prevent the relitigation of issues already decided in a court of competent jurisdiction . . ." (Citations omitted.) Brown v. Commissioner of Correction, 44 Conn.App. 746, 749-50, 692 A.2d 1285 (1997). "The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it." Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589, 674 A.2d 1290 (1996).
The defendant cites to DH Platt, LLC v. 1365 Whittemore Associates, Superior Court, judicial district of Waterbury, Docket No. CV 02 0175061 (July 20, 2006, Agati, J.), a mortgage foreclosure action, for the proposition that summary judgment is appropriate here because the lease remains in escrow and was never delivered to the plaintiffs, and thus a valid conveyance did not occur and the plaintiffs have no standing to enforce any rights under the lease. In DH Platt, the defendants argued that because the mortgage at issue was held in escrow and was not to be released unless a condition precedent was met, which did not occur, "it was never delivered to the plaintiff, thus the plaintiff never became the mortgage holder and, therefore, is precluded from foreclosing." Id. The court granted summary judgment, holding that "[b]ecause undisputed evidence demonstrates that the mortgage deed was placed, and remains, in escrow, the mortgage deed was never delivered to the plaintiff. Thus, absent the element of delivery, a valid conveyance of the mortgage deed from the defendants to the plaintiff has never occurred." Id. In support of this holding, the DH Platt court cited to Young v. Young, 64 Conn.App. 651, 656-57, 781 A.2d 342, cert. denied, 258 Conn. 908, 782 A.2d 1255 (2001), aff'd, 78 Conn.App. 394, 827 A.2d 722 (2003), which held that "because [the defendant] failed to satisfy the agreed on conditions for the delivery of the deed to be accomplished, the deed was not delivered to him, and the plaintiff remains the legal owner of the property." DH Platt, LLC v. 1365 Whittemore Associates, supra, Superior Court, Docket No. CV 02 0175061.
The plaintiffs point to Grilley v. Atkins, 78 Conn. 380, 62 A. 337 (1905), to support their contention that the lease need not be delivered from escrow to be effective in the present case, and therefore the claims made in this case are not the same as Nipmuc I, so summary judgment is inappropriate. In Grilley, the court examined a situation where a deed was conveyed by a grantor to an attorney in escrow to be delivered to a son of the grantor upon the grantor's death. Id., 380-83. The court there noted the critical distinction in cases where deeds are delivered into escrow. "Where a deed is placed in the hands of a depositary for conditional future delivery to the grantee, a distinction has by some courts been recognized between cases where the future delivery depends upon the performance of some condition, and those where it depends upon the death of the grantor. In the former case the deed does not become operative until rightfully delivered by the depositary to the grantee, while in the latter, upon delivery to the depositary, it is deemed to be the grantor's deed presently, taking effect for many, if not for most purposes, from the time of its delivery to the depositary. The deed in either of these cases is usually called an `escrow,' but perhaps more frequently and more properly that word is used to designate the deed in the former, rather than in the latter, case." (Emphasis added.) Id., 384.
Grilley v. Atkins was cited in footnote one of the Superior Court's decision in Nipmuc I. The court there stated that "[t]he plaintiff seeks delivery of the lease document from the escrow agent in this case . . . It is important to note, however, that the plaintiff argues that the delivery of physical possession of the lease to the escrow agent would render it retroactively enforceable under Connecticut law, notwithstanding the subsequent Connecticut Siting Council's (CSC) order to transfer the land to Meriden. See Grilley v. Atkins, 78 Conn. 380, 62 A. 337 (1905). Grilley v. Atkins involved the delivery of two deeds to two half-brothers by their mother. The first deed was held in escrow by her attorney and was to be delivered to her son upon her death. The second deed was granted to the second son a year later; however, upon the death of their mother, the second and subsequent deed was filed on the Waterbury land records 15 minutes earlier than the first deed. The court upheld the trial court's ruling that the title passed under the first deed, although it was filed second in time. The court reasoned that title related back to the time of delivery to the escrow agent, although actual delivery of the deed from escrow awaited the contingency of the grantor's inevitable death. This case has generally been ignored by our courts, however, and has not been cited by the Connecticut Supreme Court since 1950, perhaps because of its unusual facts . . ." Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, supra, Superior Court, Docket No. CV 02 0281664.
See footnote five, supra, for a detailed description of the facts of Grilley v. Atkins.
The Grilley court thus stated the position that a deed placed in escrow to be delivered upon the happening of some condition, other than the death of the grantor, is generally not deemed operative until delivered from escrow to the grantee, which presupposes that such condition has occurred. Id. It is notable that this was a statement of the law as it existed in 1905, and the court made reference to various other jurisdictions' holding on the issue. Grilley v. Atkins, therefore, is factually distinguishable from the present case in that it involved a grantor's delivery of a deed intended to be effective upon the death of the grantor in favor of the grantee, and analogous to the present situation in that it proposes that the delivery of a deed upon a condition precedent is to be effective on the happening of that condition. Id.
In the present case, the defendant has demonstrated that the lease at issue, which was the same lease at issue in Nipmuc I, remains in escrow. In support of this, the defendant submits a notarized affidavit of attorney Thomas Cadden, the escrow agent for the lease. (Defendant's Motion for Summary Judgment, Exhibit A.) Attorney Cadden states that he "remain[s] the Escrow Agent of the Lease that was the subject of the declaratory judgment action in" Nipmuc I, that the lease remains in his possession as escrow agent and that the lease has not been modified or altered. Id.
The defendant has further demonstrated that no changes have occurred as to the Siting Council's position on the requirements for the lease to be released from escrow, submitting an authenticated affidavit of S. Derek Phelps, the executive director of the Connecticut Siting Council. (Defendant's Motion for Summary Judgment, Exhibit C.) Phelps states that he is familiar with the alleged lease of the subject property and that "[t]here has been no change in the position of the Connecticut Siting Council with respect to the 51.9 acres" from the Council's September 14, 2001 denial of PDC-El Paso Meriden's (the predecessor in interest to Meriden Gas Turbines) request to retain that parcel of land. Id. Phelps notes that the subject property was transferred to the defendant by stipulated judgment in an enforcement action. Id.
The defendant also submits a notarized affidavit of Judith Lagano, the "Director, Asset Management, New England for NRG Energy, Inc., the parent company of Meriden Gas Turbines LLC." (Defendant's Motion for Summary Judgment, Exhibit B.) Lagano states that prior to Meriden Gas Turbines' conveyance of the subject property to the defendant, Meriden Gas Turbines "did not authorize the release of the Lease from escrow," nor did it authorize any modification of the lease or "a new or different lease with Nipmuc Properties, LLC."
"Once the moving party has met its burden . . . 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). "The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).
In their corrected memorandum in objection to the defendant's motion for summary judgment, the plaintiffs submit the notarized affidavit of Thomas Cadden who states that "[i]t was my understanding that Nipmuc's right to possession and use of the 52 acre tract was conditioned solely upon the Connecticut Siting Council approving the development and management plans (`DM plans') submitted by Meriden Gas Turbines, LLC in August and September 2001, pursuant to a Certificate of Environmental Compatibility and Public Need that had been previously issued to PDC El-Paso Meriden, LLC on April 27, 1999." (Plaintiffs' Corrected Opposition to Summary Judgment, Exhibit C.)
The plaintiffs point to paragraph three of the defendant's Exhibit B, the affidavit of Judith Lagano, to support the above proposition. Paragraph three, however, merely refers to Attorney Cadden's conveyance of certain property in Meriden to Meriden Gas Turbines by warranty deed. (Defendant's Motion for Summary Judgment, Exhibit B.) Paragraph three does not attest to the parties' intent. Id.
The plaintiffs also submit the notarized affidavit of Joseph F. Carabetta, the agent and signatory for Nipmuc Properties, LLC with respect to the lease at issue. (Plaintiffs' Corrected Opposition to Summary Judgment, Exhibit A.) Carabetta makes a statement similar to Attorney Cadden's, stating that "[i]t was the intent and understanding of Nipmuc and all interested parties to the Lease that Nipmuc's right to possession and use of the 52 acre parcel under the Lease was conditioned solely upon the Connecticut Siting Council approving the development and management plans (`DM plans') submitted by Meriden Gas Turbines, LLC (`MGT') in August and September 2001, pursuant to a Certificate of Environmental Compatibility and Public Need that had been previously issued to PDC El-Paso Meriden, LLC on April 27, 1999." Id. Carabetta goes on to state that "[i]t was the further understanding of Nipmuc and all interested parties to the Lease that Nipmuc would have the right to occupy, possess and use the 52 acre parcel without the need for physical possession of the original Lease document." Id. Carabetta's statement differs from Cadden's in that Cadden does not make any mention of the lease in paragraph four; (Plaintiffs' Corrected Opposition to Summary Judgment, Exhibit C); whereas Carabetta's statement in his paragraph four; (Plaintiffs' Corrected Opposition to Summary Judgment, Exhibit A); goes to the interested parties' intent under the lease.
The plaintiffs have not submitted any evidence to rebut the defendant's evidence regarding the lease currently being in escrow, nor has there been any argument by the plaintiffs that the lease has been modified or superseded. Rather, the plaintiffs argue that this court should look to the intent of the parties to the lease to determine whether delivery of the lease was complete when it was allegedly delivered into escrow, relying on the affidavit of the agent of the plaintiff, Nipmuc Properties. (Plaintiffs' Corrected Opposition to Summary Judgment, Exhibit A.) The issue that must be examined for this court to make such a determination, however, is based on a claim that has previously been decided. The Appellate Court previously decided in Nipmuc I that delivery from escrow had not occurred, and the plaintiffs have not demonstrated a change in circumstances or argument beyond what was decided previously. As such, the present case is a clear example of the type of relitigation that the doctrine of res judicata is designed to prevent. Accordingly, the plaintiffs have no rights under the lease where delivery from escrow has not occurred, and res judicata bars this court from allowing the plaintiffs' present claim that delivery has occurred because of the parties' alleged intent.
In Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, supra, 103 Conn.App. 100, the Appellate Court upheld the trial court's conclusion that delivery of the lease, the same lease at issue in the present matter, did not occur, finding that "[a] thorough review of the record supports the court's conclusion that approval by the siting council was a condition precedent to the delivery of the lease, and the court's findings of fact in arriving at that conclusion were not clearly erroneous." The Appellate Court reaffirmed that "[c]redible evidence was presented to the court that Joseph F. Carabetta, a principal of the plaintiff and agent for Summitwood, clearly understood that the fifty-two acre lease required [siting council] approval . . . Credible evidence was also presented to the court that Carabetta understood that Meriden's support for the fifty-two acre lease was essential for [siting council] approval and that he personally undertook that responsibility." Id., 99.
It is apparent that the facts of the present case and Nipmuc I are related in time, space and origin, as both cases revolve around the lease of the subject property and whether it should have been delivered or was delivered from escrow by the escrow agent to the plaintiffs, thereby empowering the plaintiffs with a leasehold interest. See Powell v. Infinity Ins. Co., supra, 282 Conn. 605. It is apparent from the trial court's discussion of the allegations in Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0281664 (August 11, 2005, M. Taylor, J.), that the allegations of the complaint in Nipmuc I allege a claim by the plaintiffs to "a leasehold interest" in the subject property under the same lease as the present case. The plaintiffs' claims in counts two and three of the present case arise out of the same transaction and nucleus of facts as Nipmuc I, arise from the same real estate transaction, involve presentation of repetitive evidence and turn on the alleged infringement of the same leasehold rights as those the plaintiffs alleged in Nipmuc I. Further, because Nipmuc I and the present case share the same factual underpinnings that support the claims in both actions, a "convenient trial unit" was present in Nipmuc I that would have favored consolidation of the plaintiffs' claims and that would have involved "considerable overlap of witnesses and proof relevant to both actions." Powell v. Infinity Ins. Co., supra, 282 Conn. 608-09; see Delahunty v. Massachusetts Mutual Life Ins. Co., supra, 236 Conn. 590. The only factual difference between the two cases is that in Nipmuc I Meriden Gas Turbines held title to the subject property whereas in the present case that title has since been conveyed to the defendant. This factual difference does not impact the court's analysis here however, where the defendant was still a party to Nipmuc I and the plaintiffs had the opportunity to bring the present claims.
In the defendant's reply to the plaintiffs' opposition to summary judgment, the defendant states that "[t]he description of the Lease in the complaint in Paragraph 14 is identical to the description of the Lease that is found in Nipmuc I, which was stipulated to by the parties and submitted to the Court for consideration of the declaratory judgment action to have the Leased delivered in Nipmuc I . . ." (Emphasis in original.)
Although the plaintiffs argue that "the basis of plaintiffs' Complaint is not the Lease document under the escrow agreement which was the subject of the Declaratory Judgment Action, but rather is comprised of the leasehold rights and interests in the 52 acre parcel separate and apart from the issue of the release of the Lease document from that escrow," it is a distinction without a difference. "A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it." (Internal quotation marks omitted.) Bridges v. Commissioner of Correction, supra, 97 Conn.App. 122. Without establishing that the lease of the subject property was delivered from escrow, which the court in Nipmuc I decided the plaintiffs did not have a right to, and which the defendant here has provided evidence that the relevant circumstances have remained unchanged thereafter, the plaintiffs cannot establish a claim under their "leasehold rights and interests" in the property.
The plaintiffs do not cite any authority for the specific proposition that they have "leasehold rights and interests" apart from the lease itself or without delivery of the lease from escrow. Rather, the plaintiffs cite to inapposite authority concerning the elements of a valid lease and the effect of failing to record a lease of more than one year as to creditors and bona fide purchasers.
The plaintiffs' claim to the lease and any leasehold interests thereunder was decided in Nipmuc I, Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, supra, 103 Conn.App. 100. Without evidence that anything affecting the lease's status in escrow has occurred, the plaintiffs are merely reasserting the same claim to their alleged rights under the lease under a different legal theory. The fact that the plaintiffs could have maintained their present claims seeking to quiet title and equitable relief under the lease in Nipmuc I extinguishes their ability to bring such claims thereafter. The claims brought in the instant case merely constitute additional evidence in support of the plaintiffs' claim to a leasehold interest under the subject lease in Nipmuc I.
Accordingly, res judicata bars the plaintiffs' claims brought in counts two and three of their complaint, and summary judgment is appropriate in favor of the defendant on those counts. As the defendant's claim of res judicata is found herein to be dispositive of the motion for summary judgment as to counts two and three of the plaintiffs' complaint, the court need not further reach the defendant's arguments regarding collateral estoppel or standing.
For the above stated reasons, the defendant's motion for summary judgment is granted as to counts two and three of the plaintiffs' complaint.