author: BEAR, J.

text:
    SUMMITWOOD DEVELOPMENT, LLC, ET AL. v. KENNETH ROBERTS, SR., ET AL.
    (AC 32341)
    DiPentima, C. J., and Lavine and Bear, Js.

      Argued May 20
    officially released August 23, 2011

      Dominic J. Aprile, for the appellants (plaintiffs).

      Bryan L. LeClerc, with whom was Michael P. Burdo, for the appellees (defendants).
   Opinion

BEAR, J.

The plaintiffs, Summitwood Development, LLC (Summitwood), and Nipmuc Properties, LLC (Nipmuc), initiated this action for damages and reformation of a sale and leaseback agreement, and they appeal from the summary judgment rendered by the trial court in favor of the defendants, Kenneth Roberts, Sr., Michael Armitage, Thomas Atkins, John DeTore and PDC-E1 Paso Meriden, LLC (PDC-E1 Paso). The plaintiffs claim that the trial court erred in (1) overruling their objection to the defendants’ request to amend their answer and special defenses and (2) applying the doctrine of res judicata to bar the present action. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs’ appeal. In 2002, Nipmuc instituted an action in the Superior Court (Nipmuc I), seeking a declaratory judgment as to the validity of an escrowed lease and, by way of relief, an order requiring the escrow agent to deliver the lease to Nipmuc. Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-02-0281664-S (August 11, 2005). That action arose out of a dispute relating to a lease between PDC-El Paso and Summitwood, acting on behalf of Nipmuc, of an approximately fifty-two acre parcel, which comprised a portion of a much larger tract of undeveloped property owned by Nipmuc situated in the city of Meriden and the town of Berlin. Id.

PDC-El Paso had sought permission from the Connecticut siting council (siting council) to build an electric generation facility on a portion of the property separate from the fifty-two acre parcel. Id. In furtherance of the PDC-El Paso proposal, Nipmuc and Summitwood entered into an arrangement under which the latter would have the exclusive right to purchase the entire undeveloped property. Id. Summitwood then entered into an agreement to sell the property to PDCEl Paso. Id. The original version of the agreement contained a provision for either a sale or leaseback of approximately thirty acres by PDC-El Paso to Summitwood. The final version of the agreement contained a provision under which PDC-E1 Paso would lease the fifty-two acre parcel, all of which was located in Meriden, to Summitwood. The lease of the fifty-two acre parcel would be held in escrow until the electric generation facility project was approved by the siting council. Id. After the sale to PDC-E1 Paso occurred, PDC-E1 Paso almost immediately sold the entire tract to Meriden Gas Turbines, LLC (Meriden Gas Turbines). Id. The siting council eventually issued to Meriden Gas Turbines the necessary permits for the construction of the electric generation facility, but it rejected the release from escrow of the lease to Summitwood and directed that the fifty-two acre parcel be donated to Meriden. Id.

In May, 2004, while Nipmuc I was pending, the plaintiffs commenced the present action, seeking damages and reformation of the sale and lease agreement, based on the defendants’ alleged tortious and fraudulent conduct. In their complaint, the plaintiffs alleged the following additional facts. The individual defendants were agents or authorized representatives of PDC-E1 Paso. At various times during the course of negotiating the sale and lease agreement with Summitwood, Armitage, Roberts and Atkins represented that PDC-E1 Paso would deed or lease back to Summitwood, or its designee, Nipmuc, a portion of the undeveloped property and that such arrangement would be effective upon the siting council's approval of the electric generation facility plans. Roberts and Atkins further represented to Summitwood that Roberts would serve as Summitwood’s sole liaison to communicate with both PDCE1 Paso and the siting council about the lease of the fifty-two acre parcel. Roberts, Atkins and Armitage also gave assurances to the plaintiffs that the siting council had been apprised of the plaintiffs’ leasehold interest in the fifty-two acre parcel. The defendants forwarded a letter to the siting council, however, portraying the plaintiffs’ rights to the fifty-two acre parcel in a false and disparaging manner. The plaintiffs alleged that these actions represented a fraudulent scheme intended to benefit the defendants at the expense of the plaintiffs’ interests and that the defendants’ actions have prevented the plaintiffs from receiving the benefit of their bargain.

In December, 2004, while evidence was being presented in the Nipmuc I action, the defendants filed an answer and special defenses in the present matter. In their special defenses, the defendants did not allege the doctrine of res judicata. In August, 2005, judgment was rendered in Nipmuc I in favor of the defendants in that action, including PDC-E1 Paso. The Nipmuc I court determined that siting council approval of the lease, which had not occurred, was a condition precedent to the delivery of the lease from escrow. Nipmuc appealed, and this court affirmed the judgment. Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, 103 Conn. App. 90, 927 A.2d 978, cert. denied, 284 Conn. 932, 934 A.2d 247 (2007).

On November 13, 2009, the defendants filed a motion for summary judgment in the present matter on the ground that this litigation is barred by the judgment in Nipmuc I. Thereafter, on December 4, 2009, the defendants filed a request to amend their answer and special defenses to add the defense of res judicata. On December 21, 2009, the plaintiffs filed an objection to the request to amend, and, on January 8,2010, the plaintiffs filed an objection to the motion for summary judgment. On February 1, 2010, the court heard oral argument on the motion for summary judgment, and the defendants’ request to amend their answer and special defenses was granted over the plaintiffs’ objection at that hearing. On May 13, 2010, the court granted summary judgment in favor of the defendants. This appeal followed.

I

On appeal, the plaintiffs claim that the trial court erred in overruling their objection to the defendants’ request to amend their answer and special defenses to add the defense of res judicata. Specifically, the plaintiffs argue that the defendants waived their right to assert res judicata by failing to include that defense in their original answer and special defenses filed on December 13, 2004. The plaintiffs also point out that the defendants waited approximately four years and three months from the rendering of judgment in Nipmuc I before raising the issue of res judicata in the present matter.

As an initial matter, the plaintiffs argue that the appropriate standard of review to apply to the trial court’s decision granting the defendants’ request to amend their answer and special defenses is plenary review. In support of their contention, the plaintiffs rely on our decision in DiPietro v. Farmington Sports Arena, LLC, 123 Conn. App. 583, 2 A.3d 963, cert. granted on other grounds, 299 Conn. 920, 10 A.3d 1053 (2010).The defendants respond that the proper standard of review of a trial court’s decision on a request to amend a pleading is the abuse of discretion standard. We agree with the defendants.

Generally, “[a] motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court.” (Internal quotation marks omitted.) Canterbury v. Deojay, 114 Conn. App. 695, 705, 971 A.2d 70 (2009). Here, the plaintiffs contend that their claim should be reviewed under the plenary standard because the trial court ruled on the plaintiffs’ objection to the request to amend during the course of summary judgment proceedings.

The plaiutiffs’ reliance on this court’s decision in DiPietro is misplaced. DiPietro considered the proper scope of review of a trial court’s determination of the admissibility of expert witness testimony in the course of a summary judgment proceeding. There, this court determined that plenary review was appropriate because “it would be inconsistent with [the] plenary scope of review to subject a particular subset of [a] trial court’s determinations in [summary judgment] proceedings, namely, the admissibility of an expert’s opinion, to the highly deferential abuse of discretion scope of appellate review.” DiPietro v. Farmington Sports Arena, LLC, supra, 123 Conn. App. 611.

Although the court’s ruling on the request to amend in the present matter occurred during the proceedings on the motion for summary judgment, the court’s decision to grant the amendment was not dependent on the existence of those proceedings. Furthermore, although the court’s grant of permission to amend the pleadings enabled the summary judgment motion to be considered by the court because it permitted the defendants to move for judgment on the ground of res judicata, the existence of the summary judgment proceedings did not affect the defendants’ usual burden of proof with respect to the granting of an amendment to their special defenses. Accordingly, we will review the plaintiffs’ claim under the abuse of discretion standard.

“It is well settled that whether to allow an amendment to the pleadings rests within the discretion of the trial court." Miller v. Fishman, 102 Conn. App. 286, 291, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008). “The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial. . . . The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case.” (Citation omitted; internal quotation marks omitted.) Canterbury v. Deojay, supra, 114 Conn. App. 705.

Here, the plaintiffs have failed to demonstrate prejudice resulting from the defendants’ delay in raising their defense of res judicata. “The law is well-settled that belated amendments to the pleadings rest in the sound discretion of the trial court.” Conference Center Ltd. v. TRC, 189 Conn. 212, 216, 455 A.2d 857 (1983). This discretion may be exercised before, during or after trial. Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 575-76, 715 A.2d 46 (1998) (trial court should have permitted complaint to be amended posttrial to conform to proof during trial). Absent evidence of an abuse of discretion, we find no error in the court’s ruling on the defendants’ request to amend their answer and special defenses.

II

The plaintiffs further claim that the trial court erred in applying the doctrine of res judicata to bar the present action. Specifically, the plaintiffs argue that Nipmuc I was limited to determining only the responsibilities of the escrow agent. The plaintiffs contend that their present claims focus on the alleged breach of a separate and distinct contractual undertaking by Roberts as part of an overarching fraudulent scheme, in which he was aided by the other defendants. In addition, the plaintiffs argue that the trial court erred in finding privity between the individual defendants and PDC-E1 Paso, a defendant in Nipmuc I.

At the outset, we note that “[o]ur review of [a] trial court’s decision to render summary judgment is plenary, and in accordance with the standards set forth in Practice Book § 17-49.” Ventres v. Goodspeed Airport, LLC, 301 Conn. 194, 205, 21 A.3d 709 (2011). In addition, “the applicability of res judicata . . . presents a question of law over which we employ plenary review.” Weiss v. Weiss, 297 Conn. 446, 458, 998 A.2d 766 (2010).

The doctrine of res judicata, or claim preclusion, promotes judicial efficiency, establishes adjudicative consistency and avoids the vexation of litigants by precluding the splitting of actions that could be adjudicated together. Isaac v. Truck Service, Inc., 253 Conn. 416, 422-23, 752 A.2d 509 (2000); see also 1 Restatement (Second), Judgments § 24 (1982). Under the doctrine, “a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim.” (Internal quotation marks omitted.) Tirozzi v. Shelby Ins. Co., 50 Conn. App. 680, 685, 719 A.2d 62, cert. denied, 247 Conn. 945, 723 A.2d 323 (1998). “The doctrine of res judicata is one of rest and is enforced on the ground of public policy. ... If the same cause of action is again sued on, the judgment is conclusive with respect to any claims relating to the cause of action which were actually made or might have been made.” (Citation omitted.) Corey v. Avco-Lycoming Division, 163 Conn. 309, 316-17, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973).

If the plaintiffs’ present claims are to be barred under the doctrine of res judicata, all of the defendants in the present matter must be susceptible to the doctrine’s application. The plaintiffs argue that the court erroneously found the individual defendants in privity with PDC-E1 Paso.

“The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.” (Internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 600, 922 A.2d 1073 (2007). In their complaint, the plaintiffs alleged that the individual defendants were agents or authorized representatives of PDC-El Paso at “all times relevant,” and the record reveals no evidence to the contrary. See Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 561, 436 A.2d 24 (1980) (agents of same municipal corporation in privity with one another and municipality); see also 50 C.J.S. 480, Judgments § 1108 (2009) (“[a] judgment for the defendant in an action against an agent may generally be pleaded as a bar to a subsequent action for the same cause against the principal, and vice versa”); 50 C.J.S., supra, § 1109 (“[w]here a plaintiff in an action against an employee is defeated on the merits, the judgment is generally regarded as a bar to a subsequent action against the employer, and vice versa”). Thus, we find no error in the court’s determination that the individual defendants, as agents or representatives of PDC-E1 Paso, were in privity with PDC-E1 Paso, a defendant in the Nipmuc I action.

“Because the operative effect of the principle of claim preclusion or merger is to preclude relitigation of the original claim, it is crucial to define the dimensions of that original claim. The Restatement (Second), Judgments provides, in § 24, that the claim [that is] extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. In amplification of this definition of original claim, § 25 of the Restatement (Second) [of Judgments provides] that [t]he rule of § 24 applies to extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action (1) [t]o present evidence or grounds or theories of the case not presented in the first action, or (2) [t]o seek remedies or forms of relief not demanded in the first action.

“The transactional test of the Restatement [(Second) of Judgments] provides a standard by which to measure the preclusive effect of a prior judgment, which we have held to include any claims relating to the cause of action which were actually made or might have been made. ... In determining the nature of a cause of action for these purposes, we have long looked to the group of facts which is claimed to have brought about an unlawful injury to the plaintiff . . . and have noted that [e]ven though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action.” (Internal quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light & Power Co., 300 Conn. 325, 348-49, 15 A.3d 601 (2011). “In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action.” (Internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, supra, 123 Conn. App. 591.

A pragmatic comparison of the present complaint with the judgment and pleadings in Nipmuc I convinces us that this litigation arises out of the same common nucleus of facts as the Nipmuc I action. It is apparent that the claims in both the present matter and Nipmuc I stem from the same series of transactions, namely, the negotiation, execution, review and performance, or lack thereof, of the sale and leaseback agreement. Furthermore, both in the present matter and Nipmuc I the plaintiffs seek redress based on their allegedly wrongful prohibition from use of the fifty-two acre parcel as a result of the siting council's rejection of the lease and its order transferring the fifty-two acre parcel to Meriden.

The plaintiffs’ additional claims of fraudulent and tortious business conduct by the defendants relate to their alleged failure to negotiate with, and lack of approval by, the siting council, and the consequent lack of performance of the lease. The plaintiffs’ contractual claims against Roberts concern his actions before the siting council during its review of the lease and arise out of an alleged contractual undertaking that he entered into with the plaintiffs at the time the sale and leaseback agreement was negotiated.

The complaint in Nipmuc I alleged that “PDC-E1 Paso and Meriden Gas Turbine [s] told [Nipmuc] that they would present the [l]ease, and that [Nipmuc] should not appear before the [siting council]. However, [Nipmuc] became concerned PDC-E1 Paso and Meriden Gas Turbine [s] had not made a full disclosure of [Nipmuc’s] leasehold interest to the [siting council].” Moreover, the complaint in Nipmuc I further alleged that “[Nipmuc] believes that PDC-E1 Paso has concealed from the [siting council] in PDC-E1 Paso’s original submissions that PDC-E1 Paso’s right to purchase the [l]arger [p]arcel was subject to the obligation to deed out [thirty] acres of the [l]arger [p]arcelto Summitwood’s designee. [Nipmuc] believes that PDC-E1 Paso and the Meriden Gas Turbine [s] failed to properly disclose and present to the [siting council] after January 10, 2001, that the deed of the [l]arger [p]arcel to Meriden Gas Turbine[s] was subject to the [l]ease.”

In reaching its judgment, the Nipmuc I court thus examined the same nucleus of facts at issue here, including the negotiation of the sale and leaseback agreement and the siting council’s subsequent review and rejection of the lease. It is apparent that the plaintiffs’ claims relate in time, space, origin and motivation to those claims raised and decided in Nipmuc I. Moreover, it is clear that Nipmuc I and the present matter form a convenient trial unit, with overlapping witnesses and evidence.

“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.) New England Estates, LLC v. Branford, 294 Conn. 817, 842, 988 A.2d 229 (2010). “[T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . . .” (Emphasis in original; internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 43-44, 694 A.2d 1246 (1997). The plaintiffs had an adequate opportunity to litigate their present claims in Nipmuc I and failed to do so. Accordingly, the court’s rendering of summary judgment was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The individual defendants, Roberts, Armitage, Atkins and DeTore, will be referred to collectively as the “individual defendants.”

       Nipmuc’s claim seeking a judgment declaring the lease valid and in effect was abandoned at a hearing held on July 15, 2005. Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-02-0281664-S (August 11, 2005).

       The lease establishes that the total acreage of the subject parcel is 51.935 acres. For the sake of clarity and convenience, this opinion will refer to the parcel as the “fifty-two acre parcel.”

       The complaint contains nine counts. The first count alleges common-law fraud against Roberts, Armitage, Atkins and PDC-E1 Paso. The second and third counts allege breach of contract and breach of the covenant of good faith and fair dealing, respectively, against Roberts. The fourth count is directed at all of the defendants and alleges a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The fifth and sixth counts allege civil conspiracy and tortious interference with contractual relations, respectively, against all of the defendants. The seventh count alleges slander of title against DeTore and PDC-E1 Paso. The eighth count requests reformation of the sale and leaseback agreement due to the fraudulent conduct of Roberts, Atkins, Armitage and PDC-E1 Paso. Finally, the ninth count alleges fraudulent concealment against all of the defendants.

       The defendants to the Nipmuc I action were PDC-El Paso, Meriden Gas Turbines, Thomas P. Cadden, and Meriden. Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, 103 Conn. App. 90, 91, 927 A.2d 978, cert. denied, 284 Conn. 932, 934 A.2d 247 (2007).

       A second memorandum in opposition to the motion for summary judgment, dated January 8, 2010, was filed with the court on January 19, 2010.

       The Supreme Court granted certification to appeal inDiPietro on December 15,2010. One of the questions presented for review is whether this court properly determined that plenary review applied to the trial court’s decision concerning the admissibility of expert testimony in connection with a summary judgment motion. DiPietro v. Farmington Sports Arena, LLC, 299 Conn. 920, 10 A.3d 1053 (2010).

       The plaintiffs urge us to consider portions of Roberts’ deposition testimony. As this evidence was not before the trial court when it decided the motion for summary judgment, we will not consider it on appeal. Fiorelli v. Gorsky, 120 Conn. App. 298, 307 n.3, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010).

       In fact, Roberts testified during the Nipmuc I proceedings. Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, supra, Superior Court, Docket No. CV-02-0281664-S.


source: Caselaw Access Project

license: Public Domain

text:
    NIPMUC PROPERTIES, LLC, ET AL. v. CITY OF MERIDEN ET AL.
    (AC 32313)
    DiPentima, C. J., and Lavine and Bear, Js.

      Argued May 20
    officially released August 23, 2011

      Dominic J. Aprile, for the appellants (plaintiffs).

      Deborah Leigh Moore, for the appellee (named defendant).
   Opinion

BEAR, J.

The plaintiffs, Nipmuc Properties, LLC (Nipmuc), and Summitwood Development, LLC (Summitwood), appeal from the summary judgment rendered by the trial court in favor of the defendant city of Meriden in their action to quiet title to a fifty-two acre parcel of land owned by the defendant, in which Nipmuc asserts a leasehold interest. On appeal, the plaintiffs claim that the trial court improperly applied the doctrine of res judicata to bar their action. Because we agree with the defendant that the plaintiffs’ claims in this litigation are barred by the doctrine of res judicata, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs’ appeal. In 2002, Nipmuc instituted an action in the trial court (Nipmuc I), seeking a declaratory judgment as to the validity of an escrowed lease and, by way of relief, an order requiring the escrow agent to deliver the lease to Nipmuc. 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 action arose out of a dispute over ownership and lease of a portion of a large tract of undeveloped property owned by Nipmuc, situated in Meriden and in the town of Berlin, which, in part, was the proposed site of an electric generation facility. Id.

Nipmuc and Summitwood had entered into an arrangement under which Summitwood would purchase the entire tract of undeveloped property from Nipmuc, and Summitwood would have the exclusive right to purchase or lease back from the subsequent purchaser, who was to buy such property and complete the electric generation facility project, approximately thirty acres of the property. Id. Summitwood then entered into an agreement to sell the entire tract of undeveloped property to PDC-E1 Paso Meriden, LLC (PDC-E1 Paso). Id. The final version of the agreement between Summitwood and PDC-E1 Paso contained a provision under which PDC-E1 Paso would lease a fifty-two acre parcel, all of which was located in Meriden, to Summitwood, acting on behalf of Nipmuc, instead of the thirty acre parcel, and the lease of the fifty-two acre parcel would be held in escrow until the electric generation facility project was approved by the Connecticut siting council (siting council). Id. After the sale to PDC-E1 Paso occurred, PDC-E1 Paso almost immediately sold the entire tract to Meriden Gas Turbines, LLC (Meriden Gas Turbines). Id. The siting council eventually issued to Meriden Gas Turbines the necessary permits for the construction of the electric generation facility, but it rejected the release from escrow of the lease to Summitwood and directed that the fifty-two acre parcel be donated to Meriden. Id.

After a trial to the court, the Nipmuc I court rendered a decision in favor of the defendants in that action, including the present defendant. Id. In ruling for the Nipmuc I defendants, the court found that approval of the underlying lease arrangement by the siting council was a condition precedent to delivery of the lease from escrow and that such condition had not been met. Id. On appeal, this court affirmed the judgment of the trial court, holding 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 . . . .” Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, 103 Conn. App. 90, 100, 927 A.2d 978, cert. denied, 284 Conn. 932, 934 A.2d 247 (2007).

Following the trial court’s judgment in Nipmuc I, the defendant acquired title to the fifty-two acre parcel, inter alia, from Meriden Gas Turbines. In November, 2007, the plaintiffs commenced the present action, the third state court action brought by Nipmuc and the second brought by Summitwood concerning the fifty-two acre parcel, alleging that the defendant had prevented Nipmuc from taking possession of that parcel. In the second count of the present complaint, the plaintiffs seek to require the defendant to perform its obligations under the lease. In the third count of the complaint, the plaintiffs seek to quiet title to the fifty-two acre parcel.

On January 25, 2008, the defendant filed an answer and special defenses, including the defense of res judicata. The defendant then filed a motion for summary judgment, arguing, in part, that counts two and three of the complaint were barred by virtue of the judgment in Nipmuc I. In support of its motion for summary judgment, the defendant submitted an affidavit attesting that the situation as found by the court in Nipmuc I continued to exist, i.e., the lease remains in escrow and the condition precedent to its release has not occurred. On May 12, 2010, the court granted the motion for summary judgment, and this appeal followed.

On appeal, the plaintiffs argue that the court’s application of the doctrine of res judicata to the present matter was inappropriate because their claims do not seek to vindicate the same interests at issue in Nipmuc I. Specifically, the plaintiffs argue that in the present matter they assert rights to a leasehold interest in the fifty-two acre parcel, whereas in Nipmuc I, Nipmuc sought a judgment only with respect to the duties of the escrow agent pursuant to the escrow agreement. The plaintiffs further argue that they were unable to raise the claims at issue in the present matter in the Nipmuc I action because the conduct of which they presently complain, namely, the defendant’s failure to honor the plaintiffs’ leasehold interest, did not accrue until title to the fifty-two acre parcel was transferred to the defendant after judgment was rendered in Nipmuc I.

In addition, the plaintiffs argue that the trial court’s grant of summary judgment was inappropriate because there are genuine issues of material fact as to the intent of the parties to the lease agreement. Specifically, the plaintiffs argue that, regardless of whether the lease document was delivered from escrow, an issue of fact exists as to whether the parties to the lease agreement intended for the plaintiffs to have rights to occupy and use the fifty-two acre parcel absent their possession of the original lease document. We are not persuaded.

As a preliminary matter, we set forth the applicable standard of review. “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 fight most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Gateway, Kelso & Co. v. West Hartford No. 1, LLC, 126 Conn. App. 578, 583, 15 A.3d 635, cert. denied, 300 Conn. 929, 16 A.3d 703 (2011). “Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary. . . . Additionally, the applicability of res judicata . . . presents a question of law over which we employ plenary review.” (Citation omitted; internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 458, 998 A.2d 766 (2010).

“The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. ... If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made.” (Internal quotation marks omitted.) Bender v. Bender, 292 Conn. 696, 706-707, 975 A.2d 636 (2009). “The doctrine of res judicata is one of rest and is enforced on the ground of public policy.” Corey v. Avco-Lycoming Division, 163 Conn. 309, 316, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973).

“We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. ... In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action.” (Citations omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 123 Conn. App. 583, 590-91, 2 A.3d 963, cert. granted on other grounds, 299 Conn. 920, 10 A.3d 1053 (2010).

Comparing the operative complaint in the present matter with the pleadings and judgment in Nipmuc I, it is clear that the plaintiffs’ present claims arise out of the same transaction or series of transactions at issue in Nipmuc I. In Nipmuc I, Nipmuc “requested that the court ‘[d]etermine and enter judgment declaring that the [fifty-two acre lease] is valid and in effect . . . .’ In addition, it requested that [the escrow agent] be directed to deliver the lease . . . .” Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, supra, 103 Conn. App. 95. Moreover, Nipmuc specifically alleged in the Nipmuc I complaint that it was “the holder of a leasehold interest in approximately 51.935 acres of land ... in Meriden pursuant to a written lease . . . .” The judgment in Nipmuc I established that siting council approval was a condition precedent to the delivery of the lease and that such condition had not been met. Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, supra, 100.

In the present matter, the plaintiffs allege that the defendant has failed to accept tax payments tendered by Nipmuc in connection with Nipmuc’s rights under the lease and that the defendant has prevented Nipmuc from taking possession of the fifty-two acre parcel. In their present complaint, the plaintiffs seek not only declaratory relief, but also orders requiring the defendant to perform its obligations under the lease and quieting title to the fifty-two acre parcel. It is apparent from our review of the record that the plaintiffs’ claims in the present action, seeking to effectuate the turnover of their purported leasehold interests, and their claims in Nipmuc I, seeking the release of the lease from escrow, stem from the same agreement pertaining to that lease and seek redress on the basis of the same underlying factual predicate, namely, the siting council’s decision rejecting the plaintiffs’ efforts to obtain the release of the lease from escrow and ordering the transfer of the fifty-two acre parcel to the defendant. Similarly, the plaintiffs’ claim that the parties to the underlying lease agreement intended for the lease to have operative effect regardless of physical possession of the lease document arises from the same common nucleus of facts as set forth in the Nipmuc I action.

Res judicata, or claim preclusion, “bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action . . . which might have been made.” (Internal quotation marks omitted.) Isaac v. Truck Service, Inc., 253 Conn. 416, 421, 752 A.2d 509 (2000). “[T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . . .” (Emphasis in original; internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 43-44, 694 A.2d 1246 (1997). The Nipmuc I action provided the plaintiffs ample opportunity to raise their claim to an independent leasehold interest, separate and apart from the escrowed lease document considered in Nipmuc I, against Meriden Gas Turbines, the defendant’s predecessor in interest to the fifty-two acre parcel. Moreover, a pragmatic view of the record convinces us that the Nipmuc I action and the present matter form a convenient trial unit, involving a significant overlap of potential witnesses and evidence, and that treatment as a unit would conform to the parties’ expectations and business understanding. Accordingly, because the plaintiffs’ present claims arise from the same common nucleus of operative facts as the claims raised in Nipmuc I, and because the plaintiffs could have raised their present claims in the Nipmuc I action, they are now precluded from raising such claims in the present matter. Therefore, the court properly rendered summary judgment in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parcel of property that is the subject of this litigation is described as consisting of 51.935 acres. However, in the various pleadings referred to in this opinion there is some inconsistency as to the exact size of the parcel. For the sake of clarity and convenience, this opinion will refer to the subject parcel as the “fifty-two acre parcel.”

       The Connecticut siting council also was a defendant in the underlying action. The trial court, however, granted its motion to dismiss on June 12, 2008. The plaintiffs did not appeal from the judgment dismissing their claims against the siting council. Thus, the siting council is not a party to the present appeal, and we refer to Meriden as the sole defendant.

       Nipmuc’s claim seeking a judgment declaring the lease valid and in effect was abandoned at a hearing held on July 15, 2005. 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.).

       The defendants in the Nipmuc I action were PDC-El Paso, Meriden Gas Turbines, Thomas P. Cadden, and Meriden. Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, 103 Conn. App. 90, 91, 927 A.2d 978, cert. denied, 284 Conn. 932, 934 A.2d 247 (2007).

       Title was acquired by way of a special warranty deed dated October 17, 2006. The deed was recorded on or about October 20, 2006.

       Nipmuc previously had brought an action in the United States District Court for the District of Connecticut, which was dismissed for lack of subject matter jurisdiction.

       The first count of the complaint was directed at the siting council and, thus, is irrelevant to this appeal.

       Summitwood was not a party to the Nipmuc I action. Nonetheless, it is undisputed that Nipmuc transferred an exclusive right to purchase the entire undeveloped tract of land encompassing the fifty-two acre parcel to Summitwood and that Summitwood entered into a sale agreement for the parcel, pursuant to which the lease back arrangement was created on behalf of Nipmuc. “[T]he concept of privity has moved away from the conventional and narrowly defined meaning of mutual or successive relationships to the same rights or property. It now signifies a relationship between one who is a party of record and another who is a nonparty, but is sufficiently close to mandate the application of res judicata or collateral estoppel.” Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 813 n.12, 695 A.2d 1010 (1997). Because Summitwood’s interests in the lease are sufficiently close to Nipmuc’s, and they are related parties, the application of the doctrine of res judicata to Summitwood’s present claims is appropriate.

       “This court may take judicial notice of court files in another suit between the same parties, ‘especially when the relevance of that litigation was expressly made an issue at this trial.’ McCarthy v. Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990).” Legassey v. Shulansky, 28 Conn. App. 653, 654 n.3, 611 A.2d 930 (1992).

       “Generally, an escrow takes effect as a fully executed instrument at the time when it is rightfully delivered by the depositary to the grantee, obligee, or payee, that is, it takes effect from the second delivery.” 30A C.J.S. 613-14, Escrows § 6 (2007). The Nipmuc I court’s determination that a condition precedent to delivery of the escrowed lease had not been met establishes that the lease is inoperative. Cf. Grilley v. Atkins, 78 Conn. 380, 384, 62 A. 337 (1905) (“where the future delivery [of a deed] depends upon the performance of some condition . . . the deed does not become operative until rightfully delivered by the depositary to the grantee”).

       Although the plaintiffs assert that their claims against the defendant accrued subsequent to Nipmuc I, after Meriden Gas Turbines had transferred title to the fifty-two acre parcel to the defendant, that factual distinction is unavailing. The preclusive effect of res judicata applies not only to the parties to a prior action, but also to their privies. Powell v. Infinity Ins. Co., 282 Conn. 594, 600, 922 A.2d 1073 (2007). The defendant was not only a party to the Nipmuc I action, but is also a successor in interest with respect to the fifly-two acre parcel and is, therefore, in privity with Meriden Gas Turbines. Cf. LaBow v. Rubin, 95 Conn. App. 454, 462 n.5, 897 A.2d 136 (“ [w] e have stated that a successor in interest is in privity with a previous owner for purposes of collateral estoppel”), cert. denied, 280 Conn. 933, 909 A.2d 960 (2006).

       We need not reach the plaintiffs’ argument that the trial court failed to give proper weight to affidavits purporting to evince the parties’ intent that Nipmuc would have a right to occupy, possess and use the fifty-two acre parcel without having physical possession of the lease document. These claims go to the merits of the plaintiffs’ action, which we have determined is barred by res judicata.


author: PER CURIAM.

text:
    O’CONNELL, FLAHERTY AND ATTMORE, LLC v. ELIZABETH A. RICHTER
    (AC 32353)
    Bishop, Robinson and Borden, Js.

      Argued June 1
    officially released August 23, 2011

      Elizabeth A. Richter, pro se, the appellant (defendant).

      SandiB. Girolamo, with whom were Peter J. Sterling and, on the brief, Pamela M. Magnano, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The self-represented defendant, Elizabeth A. Richter, appeals from the judgment of the trial court finding in favor of the plaintiff, O’Connell, Flaherty & Attmore, LLC, on its complaint and on the defendant’s counterclaim that alleged legal malpractice. On appeal, the defendant claims that the court improperly (1) denied her motion for a continuance, (2) precluded the introduction of deposition testimony, and (3) concluded that she had failed to meet her burden of demonstrating legal malpractice. We find no error and affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the claims on appeal. On April 30, 2007, the plaintiff and the defendant entered into a representation agreement, under which the plaintiff agreed to represent the defendant in the dissolution of her marriage. The plaintiff represented the defendant until September 5, 2007, when attorney James Flaherty, a partner with the plaintiff, withdrew from his representation of the defendant.

On March 12, 2009, the plaintiff filed a complaint, in which it alleged that the defendant had failed to pay the attorney’s fees that she had incurred as a result of the plaintiffs representation. On April 8, 2009, the defendant filed an answer to the plaintiffs complaint and asserted a counterclaim for legal malpractice.

On July 16, 2009, a subpoena was authorized for the defendant to take the deposition of James Black, a child psychologist, who served as the custody evaluator in the defendant’s dissolution case. The defendant, however, was unable to depose Black until January 29, 2010.

A two day trial began on February 4,2010. The defendant did not call Black as a witness, but instead attempted to introduce Black’s deposition into evidence. The defendant argued that Black had evaluated her during her marital dissolution case, and she therefore wanted to admit his deposition testimony because attorney Flaherty had “made [her] mental health such a central issue in [the] case . . . The plaintiff objected, arguing that the deposition was irrelevant, as it did not pertain to breach of the standard of care, that Black had not been disclosed as an expert witness and that the deposition was hearsay that did not fall within a recognized exception to the hearsay rule. The court sustained the objection on both relevancy and hearsay grounds.

The defendant did not obtain an expert witness to testify as to the standard of care, nor did she disclose any expert witness in accordance with Practice Book § 13-4. The court, however, allowed the defendant to question attorney Flaherty on the standard of care of an attorney.

On the second day of trial, the court would not permit the defendant to testify to her claim that she had obtained a substandard divorce agreement due to the plaintiffs malpractice, without “expert testimony to guide the court in understanding [her] claim for damages.” The defendant then orally requested “an additional court date when [she could] bring in expert testimony . . . .” The court denied the request.

On March 15, 2010, the court, Domnarski, J., issued a memorandum of decision. The court found in favor of the plaintiff in the collection action, and also concluded that the defendant was unable to prevail on her counterclaim for legal malpractice. In determining that the defendant was unable to prevail on her malpractice claim, the court found that the evidence failed to establish that “attorney Flaherty’s performance constituted an obvious and gross want of care and skill so as to fall within the exception to the expert witness requirement.” The court then proceeded to find that even with the testimony from attorney Flaherty concerning the standard of proper professional skill and care, the defendant’s evidence failed to demonstrate that the plaintiff breached such standard. This appeal followed.

The defendant first claims that the court improperly denied her motion for a continuance in order to procure Black’s testimony. We disagree.

“A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion. . . . We are especially hesitant to find an abuse of discretion where the court has denied amotion for continuance made on the day of trial. ... In deciding whether to grant a continuance, the court of necessity balances several factors, including the importance of effective case flow management and the relative harm or prejudice to both parties.” (Citation omitted; internal quotation marks omitted.) Irving v. Firehouse Associates, LLC, 82 Conn. App. 715, 719-20, 846 A.2d 918 (2004).

After reviewing the record, it is unclear that a motion for a continuance was made in order to procure Black’s testimony. Although the defendant did orally request an additional court date to bring in expert testimony, there was no indication that this request was made so that Black could testify. Even if we were to assume, without deciding, that the oral request was a motion for a continuance to obtain Black’s testimony, the defendant has not established an abuse of discretion by the trial court. The defendant was able to depose Black, yet she never disclosed him as an expert witness in accordance with Practice Book § 13-4 or subpoenaed him to testify. Furthermore, the defendant made her request for an additional trial date near the end of trial, after both sides had endured two days of testimony. As a result, we find that the trial court did not abuse its discretion in refusing the defendant’s request.

The defendant next claims that the court improperly precluded the defendant from introducing Black’s deposition into evidence. We are not persuaded.

“The admissibility of a deposition into evidence under Practice Book . . . [§ 13-31] is permissive in nature, leaving the ultimate determination to the trial judge. ... On appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference . . . [and] will be disturbed only upon a showing of clear abuse of discretion.” (Internal quotation marks omitted.) Mack v. LaValley, 55 Conn. App. 150, 153, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999).

The defendant argues that she wanted Black’s testimony admitted into evidence because attorney Flaherty “made [her] mental health such a central issue in [the] case” and Black had evaluated her in the dissolution of her marriage. After reviewing the record and testimony, it is unclear how, if at all, Black’s testimony was relevant to the defendant’s claim of legal malpractice and the applicable standard of care of an attorney. Thus, the trial court did not abuse its discretion in denying the deposition into evidence.

Last, the defendant claims that the court erred in ruling that the defendant had failed to meet her burden of demonstrating legal malpractice. First, she argues that the court improperly determined that expert testimony was required for her claim of legal malpractice. Second, she argues that assuming expert testimony was necessary, the defendant offered sufficient expert testimony on the reasonable standard of care through the testimony of attorney Flaherty.

“The determination of whether expert testimony is needed to support a claim of legal malpractice presents a question of law. . . . Accordingly, our review is plenary. . . . Generally, to prevail on a legal malpractice claim, in Connecticut, a plaintiff must present expert testimony to establish the standard of proper professional skill or care. . . . Not only must the plaintiffs establish the standard of care, but they must also establish that the defendant’s conduct legally caused the injury of which they complain. . . . Our courts have carved out a limited exception to this general rule in cases in which there is present such an obvious and gross want of care and skill that the neglect [to meet the standard of care] is clear even to a layperson.” (Citations omitted; internal quotation marks omitted.) Moore v. Crone, 114 Conn. App. 443, 446-47, 970 A.2d 757 (2009).

The defendant contends that her case fits within the exception for the need to present expert testimony. After reviewing the record, however, we conclude that the defendant’s allegation of legal malpractice required expert testimony to assist the judge, as the trier of fact, with both the applicable standard of care and the evaluation of the plaintiffs performance with respect to that standard.

The defendant next argues that if she did need to provide expert testimony, she did so through attorney Flaherty’s testimony. In the memorandum of decision, the court noted that the only testimony on the relevant standard of care and skill was elicited from attorney Flaherty, and “[t]he evidence presented by the defendant failed to establish a breach of the standard of care by attorney Flaherty.” It is clear that the court did allow the defendant to use attorney Flaherty’s testimony on the reasonable standard of care as expert testimony. Thus, the defendant’s claim is without merit.

The judgment is affirmed.

       As to why he withdrew his representation, attorney Flaherty testified that “[the defendant] could be very nice. But when she was difficult, she was impossible. And she would be, in those situations . . . abusive to my staff.”

       In her counterclaim, the defendant alleged that Flaherty did not take direction from the defendant; ignored requests of the defendant; did not maintain good communication with the defendant; did not explain certain matters fully to the defendant; conducted incomplete discovery concerning her husband’s assets; wrongfully advised the defendant to execute and to deliver a promissory note to her parents; lacked reasonable competence in understanding the medical evidence involved in the case; wrongfully threatened to withdraw from representation of the defendant; and made misrepresentations to the court concerning the defendant during the hearing on the plaintiffs motion to withdraw that harmed her case and reputation.

       The record reveals that on July 29,2009, a motion for a restraining order was filed by the defendant’s husband in the marital dissolution proceeding whereupon the court, Baráll, J., issued an order preventing the defendant from deposing Black. On November 12, 2009, the defendant was granted a continuance due to this order. Another subpoena was authorized for the defendant to depose Black on November 10, 2009, and the court denied Black’s motion to quash the subpoena and a motion for a protective order. On January 13, 2010, counsel for Black again served a motion to quash and a motion for a protective order, requesting the date of the deposition be moved from January 14 to January 20, 2010, which was granted on January 14, 2010.

       The defendant filed a motion to set aside the judgment on March 31, 2010, as well as a motion to reargue on May 17, 2010, both of which were denied by the court.


author: LAVINE, J.

text:
    HAWLEY AVENUE ASSOCIATES, LLC v. ROBERT D. RUSSO, M.D. AND ASSOCIATES RADIOLOGY, P.C.
    (AC 32452)
    Lavine, Bear and Espinosa, Js.

      Argued May 17
    officially released August 23, 2011

      James A. Lenes, for the appellant (plaintiff).

      Robert D. Russo, for the appellee (defendant).
   Opinion

LAVINE, J.

This case arises from an action brought by the plaintiff, Hawley Avenue Associates, LLC, for the recovery of unpaid rent allegedly due from the defendant, Robert D. Russo, M.D. & Associates Radiology, P.C. The plaintiff appeals from the judgment of the trial court rendered, after a trial to the court, in favor of the defendant. On appeal, the plaintiff claims that the court (1) improperly concluded that the parties did not enter into an enforceable lease agreement, (2) failed to find that, under Connecticut law, covenants of a commercial lease are deemed to be independent so that a breach of one covenant by a landlord does not suspend the obligation of the tenant to pay the agreed upon rent and (3) erroneously concluded that the plaintiff had terminated the lease. We disagree with the plaintiff, and, accordingly, affirm the judgment of the court.

The following facts and procedural history are relevant to this appeal. On or about February 5, 2002, the parties signed a written lease (lease) for the defendant’s use and occupancy of the property located at 63 Hawley Avenue in Bridgeport (property). The term of the lease was for fifteen years and commenced on February 1, 2002. Importantly, the lease contained a provision that allowed the defendant and its employees to park their vehicles on the property. Specifically, paragraph 32.03 of the lease provided in relevant part: “The [1] essee shall have the right to park in the parking lot immediately in front of the demisefd] premises, which shall be reserved for [l]essee’s use. Lessee shall have the right and option to construct a fence around said parking area [fifty-five] feet by [thirty-five] feet existing from the entrance to the building . . . .”

Sometime in 2004, the plaintiff constructed its own fence on the property to prevent illegal dumping that had been occurring at the property. On June 9, 2005, the defendant, through its attorney, notified the plaintiff that it was unable to park its vehicles on the property because of the fence and that the fence had been constructed around the parking area described in paragraph 32.03 of the lease. The defendant’s attorney also sent letters to the plaintiff dated July 21, 2005, November 28, 2007, and August 21, 2008, complaining about the fence.

In December, 2008, the defendant abandoned the property, claiming that the plaintiff breached the lease by failing to correct the parking situation. In January, 2009, the parties executed a surrender agreement, and the plaintiff took possession of the property.

The plaintiff commenced this action alleging, inter alia, that, pursuant to the lease, the defendant owed it unpaid rent from December 1, 2008, and thereafter. Specifically, the plaintiff alleged that “the defendant agreed to make monthly payments of fixed rent as follows: (1) $3195.96 per month from February 1, 2002 through January 31, 2007; (2) $3777.04 per month from February 1, 2007 through January 31, 2012; and, [3] $4358.13 per month from February 1,2012 through January 31, 2017 . . . .” In addition to the fixed rent, the plaintiff alleged that the defendant also agreed to pay additional rent in the form of monthly payments for utilities and a share of the real property taxes. The plaintiff further alleged that the defendant failed to pay the fixed rent on December 1, 2008, and thereafter, and failed to pay the additional rent due on February 1,2009, and thereafter, and, consequently, owed the plaintiff $405,015.32 in fixed rent and $102,083.33 in additional rent. In its answer to the complaint, the defendant asserted, as a special defense, that the plaintiff is barred from recovery of the unpaid rent due to the plaintiffs failure to grant it access to the parking area described in the lease.

At trial, Robert D. Russo, the president of the defendant, testified about his decision to sign the lease and his understanding as to the location of the parking area described in paragraph 32.03 of the lease. Russo testified that he wanted to rent the property because it provided the defendant with warehouse space for the storage of medical records, equipment and old X ray films, it was in close proximity to one of the defendant’s other offices and it offered the defendant the ability to secure the parking area. Russo also testified that the ability to fence in the parking lot was integral to his decision to sign the lease. Finally, Russo testified that he would not have rented the property if he could not fence in the parking lot because “the issue in [his] practice is security. [Ninety-five percent] of my workforce is female and we’ve had two instances, years ago, of females being attacked, one of them in a file system, and one of them in the office, so security is a big issue with us.”

As to the location of the parking area described in paragraph 32.03 of the lease, Russo testified that he believed that the parking area surrounded the pedestrian entrance to the property. Russo testified that he measured the parking area by walking off a box consisting of fifty-five feet by thirty-five feet from the pedestrian entrance to the property, located several feet to the right of the loading ramp. Russo wanted the fence by the pedestrian entrance “because [he] needed . . . the ability to come inside the gate [and] lock the gate before [going] into the building.”

Scott Polatsek, the plaintiff’s managing member, testified that at the time he signed the lease on behalf of the plaintiff, he understood that the parking area described in the lease consisted of an area surrounding the ramp leading to the loading dock at the property because the defendant “had vans that would come in periodically, maybe, in the night, and they wanted a safe entrance and a safe exit. ” To support his interpretation of the lease, Polatsek noted a drawing attached to the lease that showed an area of thirty-five feet by fifty-five feet around the ramp. Russo testified, however, that he had not seen this map until it was produced as part of the discovery process for this action.

In a memorandum of decision dated June 17, 2010, the court found that, because the parties both believed that the lease permitted the defendant to park its vehicles and construct a fence in different areas of the property, “there is a misunderstanding between the parties and a misapprehension by one or both so that their minds have never met.” The court also found that “the parties did not even agree on how the parking area would be shaped.” Finally, the court found that the parking provision was an “integral part of the lease.” Accordingly, the court concluded that the parties never entered into a valid contract, thereby relieving the defendant of any obligations under the lease. This appeal followed.

“A lease is a contract.” (Internal quotation marks omitted.) Warner Associates v. Logan, 50 Conn. App. 90, 94, 718 A.2d 48 (1998). “The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence. ... On appeal, our review is limited to a determination of whether the trier’s findings are clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Harley v. Indian Spring Land Co., 123 Conn. App. 800, 813, 3 A.3d 992 (2010).

“A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Reid v. Landsberger, 123 Conn. App. 260, 267, 1 A.3d 1149 (2010).

“In order for an enforceable contract to exist, the court must find that the parties’ minds had truly met. ... If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make. . . . [A]n agreement must be definite and certain as to its terms and requirements.” (Internal quotation marks omitted.) Tsionis v. Martens, 116 Conn. App. 568, 577, 976 A.2d 53 (2009). “[Njumerous Connecticut cases require definite agreement on the essential terms of an enforceable agreement. . . . [Furthermore] [w]hether a term is essential turns on the particular circumstances of each case.” (Citation omitted; internal quotation marks omitted.) Coady v. Martin, 65 Conn. App. 758, 766, 784 A.2d 897 (2001), cert. denied, 259 Conn. 905, 789 A.2d 993 (2002).

There was evidence in the record to support the court’s conclusion that the parties did not enter into a valid contract because there was a misunderstanding as to the location and shape of the parking area described in paragraph 32.03 of the lease. Both Russo and Polatsek testified as to their initial understanding of the location for the parking area. Russo believed that the lease referred to an area surrounding the pedestrian entrance to the property while Polatsek believed that the lease referred to an area surrounding the ramp to the loading dock. Polatsek relied on a map of the property that he claimed was attached to the lease to support his claim that paragraph 32.03 only guaranteed the defendant’s employees the right to park and construct a fence in an area near the ramp to the loading dock. There was evidence, however, that Russo had not seen this map before signing the lease.

Additionally, there was evidence in the record to support the court’s conclusion that the parking clause was an integral part of the lease and that Russo would not have signed the lease on behalf of the defendant had he known that the parking area did not surround the pedestrian entrance. Russo testified specifically that the ability to fence in the parking lot was integral to his decision to sign the lease because some of the defendant’s employees had been “attacked” in the past. Russo believed that the lease allowed him to fence in the area surrounding the pedestrian entrance to provide protection for the defendant’s employees. Furthermore, the court found credible Russo’s testimony that he would not have signed the lease had he seen the map Polatsek referenced during his testimony. “[W]e are mindful of the well trodden notion that the trial court is the sole arbiter of credibility, [and it is] free to accept or reject, in whole or in part, the testimony offered by either, party.” (Internal quotation marks omitted.) Shaulson v. Shaulson, 125 Conn. App. 734, 742-43, 9 A.3d 782 (2010), cert. denied, 300 Conn. 912, 13 A.3d 1102 (2011). Because there is evidence that the parties never agreed on the precise location and shape of the parking area described in paragraph 32.03 of the lease, and that the benefits provided by paragraph 32.03 were an integral part of Russo’s decision to sign the lease, we conclude that the court’s finding was not clearly erroneous.

The plaintiff argues that the court improperly concluded that the parties never entered into a valid contract for several reasons. First, the plaintiff claims that the defendant made a judicial admission, in its answer to the complaint, that it entered into an enforceable contract with the plaintiff. We decline to address this claim by the plaintiff because the issue of whether the defendant made a judicial admission in its answer was not raised at trial.

“We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. . . . [T]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Williams v. Hartford Hospital, 122 Conn. App. 597, 601 n.2, 1 A.3d 130 (2010).

To challenge the court’s decision based on the claim that the defendant made a judicial admission in its answer to the complaint, the plaintiff first was required to raise its claim in the trial court. If the plaintiff had chosen to raise its claim for the first time after the court’s decision, one way for it to do so would have been by way of a motion for reargument. “ [T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts.” (Internal quotation marks omitted.) Jaser v. Jaser, 37 Conn. App. 194, 202, 655 A.2d 790 (1995). Reargument also “may be used to address alleged inconsistencies in the trial court’s memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court.” (Internal quotation marks omitted.) Opoku v. Grant, 63 Conn. App. 686, 692, 778 A.2d 981 (2001). The plaintiff did not raise this claim during trial or, subsequently, in a motion for reargument, and, accordingly, we will not review it for the first time on appeal.

Second, the plaintiff argues that the defendant failed to allege a special defense asserting the lack of an enforceable contract. Specifically, the plaintiff argues that “[i]f the defendant wished to claim that the lease was not enforceable, it was required to plead such in a special defense.” We conclude, however, that the issue of whether the parties created an enforceable contract properly was before the court.

In its complaint, the plaintiff alleges that the defendant breached the lease by failing to pay the agreed upon rent. “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.” (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn. App. 699, 706-707, 905 A.2d 1236 (2006). In resolving the claim raised by the plaintiff, therefore, it was necessary for the court first to conclude that the parties entered into an agreement. See generally Miller v. Guimaraes, 78 Conn. App. 760, 773, 829 A.2d 422 (2003) (existence of contract between parties is necessary antecedent to any claim of breach of duty of good faith and fair dealing). Without first determining whether the parties entered into a valid agreement, the court could not reach a decision as to whether there was a breach of the lease by the defendant.

Next, the plaintiff argues that the parties had a “meeting of the minds on all lease provisions” because they were represented by the same law firm during the negotiation and execution of the lease. The plaintiff does not cite any cases in its brief to this court that stand for the proposition that when the same law firm represents two different parties during the negotiation and execution of a contract, a “meeting of the minds” necessarily must be inferred. Instead, the plaintiff relies on Prisco v. Westgate Entertainment, Inc., 799 F. Sup. 266 (D. Conn. 1992). That case, however, has no relevance to the plaintiffs argument. In Prisco, Westgate Entertainment (Westgate) moved to have the law firm of Slavitt, Connery and Vardamis (firm) disqualified from representing Westgate’s former partners in an action that was adverse to Westgate’s interests. Id., 268. The court noted that one of the firm’s lawyers served as general counsel to a limited partnership named Titanic Ventures and that Westgate previously had been a general partner of Titanic Ventures. Id. The court then granted Westgate’s motion to disqualify concluding that the firm could not represent Westgate’s former partners pursuant to rule 1.9 of the Rules of Professional Conduct because one of the firm’s lawyers had represented Westgate in a substantially related matter. Id., 272.

Although Prisco addresses impermissible conduct under rule 1.9 of the Rules of Professional Conduct, a rule which is not at issue in the present case, it is silent as to whether a “meeting of the minds” necessarily must be inferred when the same law firm represents two different parties during the negotiation and execution of a contract. The issue of contract formation is not addressed at all by the court in Prisco. The plaintiff, therefore, has not provided us with any authority to support his claim. We conclude that the plaintiffs claim that the parties’ minds met because they were represented by the same law firm concerning the execution of the contract is unpersuasive.

Finally, the plaintiff argues that the court improperly concluded that the parties never entered into a valid contract because both parties acted as though they had entered into an enforceable lease for six years. Again, the plaintiff has cited no cases in his brief to this court that support his argument. We also conclude that the parties’ actions tend to support the court’s view that there was no meeting of the minds concerning paragraph 32.03. Although the defendant paid rent for the use of the property from February, 2002, until December, 2008, the evidence indicates that there was a dispute between the parties as to the location of the parking area described in paragraph 32.03 of the lease as early as June, 2005. The defendant’s attorney also notified the plaintiff of the defendant’s objection to the fence on four separate occasions between 2005 and 2008, yet the plaintiff did not remove the fence. As to the parking provision of the lease, therefore, the parties acted as though they were operating under two different leases.

The judgment is affirmed.

In this opinion the other judges concurred.

       Both parties were represented by the same law firm, Quatrella & Rizio, LLC, concerning the execution of the lease and for matters arising after the execution. The exhibits reflect that the attorney representing the defendant sent notification of the parking issue directly to the plaintiff.

       The plaintiff also alleged that the defendant violated the lease by causing damage to the property when it removed high bay lighting, improperly installed an exhaust vent and performed improper and substandard internal construction.

       Two copies of the lease were admitted into evidence at trial. Exhibit A contained a copy of the map referenced by Polatsek in his testimony. Exhibit B did not contain a map of the property but did contain additional language in paragraph 32.03. This language provided: “ownership of said fencing shall revert to [l]essor at the expiration or termination of this [l]ease. Lessee shall be responsible for the maintenance and repair of said fencing.”

       “Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings. . . . They excuse the other party from the necessity of presenting evidence on the fact admitted and are conclusive on the party making them. . . . The statement rehed on as a binding admission [however] must be clear, deliberate and unequivocal.” (Internal quotation marks omitted.) McFarland v. Dept. of Developmental Services, 115 Conn. App. 306, 317, 971 A.2d 853, cert. denied, 293 Conn. 919, 979 A.2d 490 (2009).

       Because we conclude that the court properly determined that the parties did not enter into a valid commercial lease agreement, we do not need to address the plaintiffs remaining claims.


author: BEACH, J.

text:
    PHILIP QUARANTA ET AL. v. WILLIAM COOLEY ET AL.
    (AC 31355)
    Lavine, Beach and McDonald, Js.
    Argued April 13
    officially released August 30, 2011

      Nicholas J. Adamucci, for the appellant (defendant Joanne Cooley).

      Daniel K. Readyoff for the appellees (plaintiffs).
   Opinion

BEACH, J.

The defendant Joanne Cooley appeals from an order of the trial court imposing sanctions in favor of the plaintiffs, Philip Quaranta and Arlene Quaranta, after finding the defendant in contempt. On appeal, the defendant claims that the court (1) abused its discretion by imposing punitive sanctions for a civil contempt and (2) violated her right to due process by failing to afford her a hearing prior to imposing certain sanctions. We agree with the defendant and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The parties reside on adjacent parcels of land and share a common driveway. The quarreling between the parties began when the defendant sent a letter to the plaintiffs alleging that there was a possible dispute regarding their property lines. The animosity between the parties increased between 2000 and 2005, when the defendant’s son, Sean Cooley, hosted large parties approximately four times per month. At these parties, Sean Cooley’s friends frequently parked numerous cars on the shared driveway. The plaintiffs complained that they often were disturbed by the screaming and cursing of Sean Cooley’s friends as they left the parties late at night and by the noise from the vehicles as they left the driveway. Alcohol was served at the parties, and the plaintiffs often cleaned up empty alcohol bottles the following mornings. At one party in particular, several of Sean Cooley’s friends cursed at Arlene Quaranta after she asked them to quiet down.

These unfortunate occurrences were not limited to Sean Cooley’s parties. The defendant and her daughter drove at high speeds over the well kept lawn area surrounding the shared driveway and left unsightly tire tracks. The defendant also sped down the driveway while making rude hand gestures and sounding her car horn during the time it took to travel the entire length of the driveway. The defendant often left her trash out all week long even though trash was picked up only on Mondays. Animals thus got into the trash, and the plaintiffs often cleaned up the resulting mess. Multiple verbal confrontations also had occurred between the parties, one in which Sean Cooley said to Philip Quaranta: “Hit me! I’ll wipe the ground up with you.”

On June 14, 2005, the plaintiffs served a complaint sounding in negligent infliction of emotional distress and intentional infliction of emotional distress. In their claims for relief, the plaintiffs sought punitive damages, reasonable attorney’s fees, compensatory damages for the cost of maintaining the shared driveway and such “other relief as the court deems fair, just, and equitable. ”

The case was tried before the court. The court issued its memorandum of decision on December 3, 2007. It credited the testimony of the plaintiffs. The court concluded that the defendant “directly and indirectly negligently and intentionally caused severe emotional distress upon the plaintiffs . . . .” The court also concluded that “the defendant and her family have clearly exceeded the use of the right-of-way . . . .” As a result, the court imposed the following orders upon the defendant and her family: “(1) Drive your vehicles only on the paved or graveled portion of the right-of-way. (2) Do not drive your vehicles more than ten miles per hour on the right-of-way. (3) Do not blow your horn on your vehicles or play loud music while on the right-of-way. (4) Do not make obscene gestures on the right-of-way. (5) Do not park on the right-of-way or allow any of your guests to do so. (6) Remove any storage containers from the right-of-way. . . . (8) . . . [R]efuse is to be [put out] only on the day before trash pickup.” (Emphasis in original.)

The plaintiffs filed three separate motions for contempt on February 11, March 10 and April 4, 2008. In these motions, the plaintiffs alleged that the defendant continually had violated the orders of the court set forth in its December 3, 2007 memorandum of decision and, therefore, that she was in contempt of court. The court held an evidentiary hearing on May 7, 2008, to consider all three of the plaintiffs’ motions for contempt. At the hearing, the plaintiffs presented evidence showing that the defendant, her daughter and Sean Cooley had violated the court’s December 3, 2007 orders on numerous occasions. Specifically, the plaintiffs offered thirteen video recordings of the defendant driving on the well kept lawn area surrounding the shared driveway and forty-five video recordings of the defendant, her daughter and Sean Cooley driving in excess of twenty miles per hour on the shared driveway. The plaintiffs also provided photographs that showed that the defendant had left her garbage and recycling bins out in the driveway in violation of the court’s orders. Additionally, the defendant herself admitted to driving over the well kept lawn area surrounding the driveway and to traveling over the driveway in excess of ten miles per hour.

Following the hearing, the court issued an order on May 7, 2008, which stated in relevant part: “The court finds that the defendant . . . has committed civil and direct contempt by clear and convincing evidence .... [The] [defendant is sentenced to the custody of the commissioner of correction. She can purge herself by curing the remaining objections. Execution of sentence is stayed for one month. If during that one month there is a single episode, the stay will be lifted and the [defendant shall be incarcerated. If the [c]ourt receives a letter from [the plaintiffs’] [c]ounsel ... on June 9, 2008, stating that all the objections have been dealt with, the imposition of imprisonment shall be erased. The contempt finding shall remain.”

On June 9, 2008, the plaintiffs filed another motion for contempt alleging that the defendant had committed “an additional sixty-five separate violations” of the court’s December 3, 2007 orders since the court issued its May 7, 2008 order. On August 6, 2008, the plaintiffs filed a “motion for order” seeking, inter alia: “(1) An order that the defendant . . . pay a monetary penalty for each of the seventy-two violations established at the May 7, 2008 hearing; (2) [a]n order that the defendant pay one-half of the cost to repave and regravel the common driveway [and] ... (3) [a]n order that the defendant reimburse the plaintiffs for the attorney’s fees and costs . . . incurred since . . . February 22, 2008, to enforce the [c]ourt’s [December 3, 2007] orders . . . .”

Without holding a hearing, the court granted the plaintiffs’ motion for order on July 13, 2009, and ordered: “(1) That the defendant . . . pay to the plaintiffs the amount of [$100] for each of the violations of the [c]ourt’s orders presented at the May 7,2008 hearing on the plaintiffs’ [m]otion for [c]ontempt; (2) [t]hat the defendant . . . pay one-half of the sum of the estimate obtained by the plaintiffs for the repaving and re-graveling of the parties’ common driveway, in order to maintain the driveway as it is presently configured; (3) [t]hat the defendant. . . pay all outstanding fees to the plaintiffs as an award of counsel fees and costs incurred by the plaintiffs since February 22, 2008.” The defendant subsequently filed a motion to reargue, which the court denied. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its discretion by imposing punitive sanctions. Specifically, the defendant argues that the $100 penalties imposed by the court in its July 13, 2009 order were erroneous “because the monetary fines . . . were wholly punitive” in nature. We agree with the defendant that the court abused its discretion by imposing the $100 penalties.

We begin by setting forth our standard of review and relevant legal principles. “A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [alleged contemnor] were in contempt of a court order. ... To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . [T]he credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact. . . . We review the findings to determine whether they could legally and reasonably be found, thereby establishing that the trial court could reasonably have concluded as it did.” (Internal quotation marks omitted.) O’Connell v. O’Connell, 101 Conn. App. 516, 521, 922 A.2d 293 (2007).

“Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. . . . Contempts of court may also be classified as either direct or indirect, the test being whether the contempt is offered within or outside the presence of the court.” (Citation omitted; internal quotation marks omitted.) Edmond v. Foisey, 111 Conn. App. 760, 769, 961 A.2d 441 (2008). In the present case, the plaintiffs alleged in their motions for contempt that the defendant’s contemptuous behavior was her habitual failure to comply with the court’s December 3, 2007 orders. Because this occurred outside the presence of the court, it was an indirect contempt, notwithstanding the court’s characterization of it as “direct contempt.” See LaMacchia v. Chilinsky, 85 Conn. App. 1, 4, 856 A.2d 459, cert. denied, 271 Conn. 942, 861 A.2d 514 (2004).

Contempt is either civil or criminal in nature. Johnson v. Johnson, 111 Conn. App. 413, 420, 959 A.2d 637 (2008). “[C]riminal contempt is conduct that is directed against the dignity and authority of the court. In contrast, civil contempt is conduct directed against the rights of the opposing party. A contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public. ... In distinguishing between the two, much weight has been placed on the character and purpose of the punishment. Sanctions for civil contempt may be either a fine or imprisonment; the fine may be remedial or it may be the means of coercing compliance with the court’s order and compensating the complainant for losses sustained. . . . In criminal contempt the sanction is punitive in order to vindicate the authority of the court.” (Citations omitted.) Board of Education v. Shelton Education Assn., 173 Conn. 81, 85, 376 A.2d 1080 (1977). In its memorandum of decision, the court determined that the defendant’s contempt was civil. All parties agree as to the civil nature of the contempt.

The defendant argues that the court abused its discretion by imposing the $100 penalties because they “were not properly employed . . . [either to] coerce [her] compliance or to compensate the [plaintiffs] for losses sustained;” rather, they were “strictly punitive.” The defendant maintains that because she was found to be in civil contempt, such punitive sanctions are impermissible. See Edmond v. Foisey, supra, 111 Conn. App. 775 (“[p]unitive sanctions are not permissible for civil contempt”). The plaintiffs contend that “[b]y ordering a relatively small financial penalty of $100 for each violation, the . . . court was encouraging compliance with the order because the order required the defendant to experience a consequence for her misconduct, and it provided a measure for the possible future consequence of violating the order.” As a result, the plaintiffs argue that the $100 penalties were proper because they tended to coerce the defendant’s compliance with the court’s December 3, 2007 orders. We agree with the defendant.

It is well established that “[c]ivil contempt is designed to compel future compliance”; Monsam v. Dearington, 82 Conn. App. 451, 456, 844 A.2d 927 (2004); or to compensate a party for losses or damages caused by a violation of the court’s orders. Gina M. G. v. William C., 77 Conn. App. 582, 594, 823 A.2d 1274 (2003). Thus, in the compliance category of civil contempt, it follows that “the punishment must be conditional and coercive, and may not be absolute.” (Emphasis added.) Mays v. Mays, 193 Conn. 261, 266, 476 A.2d 562 (1984). The court’s July 13, 2009 order imposing $100 penalties on the defendant was neither conditional nor coercive because the penalties were not prospective in nature; rather, they were imposed for violations of the court’s orders that already had occurred. Moreover, the order did not provide the defendant with a warning that if her contemptuous behavior continued, then she would be subject to penalties. In fact, the first time the defendant had become aware of the fact that her contemptuous behavior could result in the imposition of monetary penalties was after the penalties already had been imposed upon her by the court. As such, the court’s order failed to provide the defendant with an opportunity to purge herself. As our Supreme Court previously has stated: “[I]n civil contempt proceedings, the contemnor must be in a position to purge himself. . . . Otherwise the sanction imposed would cease to be remedial and coercive but would become wholly punitive in actual operation.” (Citations omitted; internal quotation marks omitted.) Mays v. Mays, supra, 266. Therefore, because the monetary penalties were not conditional or coercive, they were not proper sanctions to impose upon the defendant for civil contempt. Accordingly, we conclude that the court abused its discretion by imposing the $100 penalties.

II

The defendant also claims that the court violated her right to due process by failing to afford her a hearing to determine the amount of attorney’s fees and the cost of driveway repairs imposed upon her. Specifically, the defendant contends that “[i]n accordance with her due process rights, [she] was entitled to a . . . hearing in order to cross-examine and [to] produce evidence refuting [the] plaintiffs’ alleged actual losses and the amount of the [court’s July 13,2009] financial orders.” We agree.

The following additional facts are relevant to our review of the defendant’s claim. As stated previously, in their “motion for order,” the plaintiffs sought both an order requiring the defendant to pay half of the cost of repaving and regraveling the shared driveway and attorney’s fees incurred since February 22, 2008. The plaintiffs attached to their motion for order two exhibits: (1) two sworn affidavits in which their attorneys stated that the fees incurred on the plaintiffs’ behalf since February 22, 2008, totaled $17,562.50 and (2) an estimate of the cost of repaving and regraveling the shared driveway attributable to the defendant.

The defendant filed an objection to the plaintiffs’ motion for order. In her objection, the defendant requested that she be afforded, pursuant to her due process rights, “a hearing to dispute the allegations contained in the [plaintiffs’ motion for order.” The court, without holding a hearing, granted the plaintiffs’ motion for order and ordered the defendant to pay attorney’s fees incurred by the plaintiffs since February 22, 2008, and to pay half of the cost of repaving and regraveling the shared driveway in accordance with the two exhibits submitted by the plaintiffs.

We first set forth our relevant standard of review and legal principles that guide our analysis of the defendant’s claim. “[T]here are constitutional safeguards that must be satisfied in indirect contempt cases. It is beyond question that due process of law . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation. . . . Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must set forth the alleged misconduct with particularity. . . . Whether the defendant was deprived of his due process rights is a question of law, to which we grant plenary review.” (Citations omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 489, 499-500, 970 A.2d 570 (2009).

“[I]t is well settled . . . that the court may, in a proceeding for civil contempt, impose the remedial punishment of a fine payable to an aggrieved litigant as compensation for the special damages he may have sustained by reason of the contumacious conduct of the offender.” (Internal quotation marks omitted.) DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 279, 471 A.2d 638 (1984). Moreover, “[o]nce a contempt has been found, [General Statutes § 52-256b (a)] establishes a trial court’s power to sanction a noncomplying party through the award of attorney’s fees.” (Internal quotation marks omitted.) Gina M. G. v. William C., supra, 77 Conn. App. 594-95. “Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion”; (internal quotation marks omitted) Stein v. Horton, 99 Conn. App. 477, 488, 914 A.2d 606 (2007); as does a court’s decision whether to impose compensatory fines. See Lord v. Mansfield, 50 Conn. App. 21, 34, 717 A.2d 267, cert. denied, 247 Conn. 943, 723 A.2d 321 (1998).

In the present case, the plaintiffs’ motion for order sought both attorney’s fees and compensation for half of the cost of repaving and regraveling the driveway. The defendant filed an objection and sought “a hearing to dispute the allegations contained in the [plaintiffs’ motion for order.” (Emphasis added.) This court previously has held that “[generally, when the exercise of the court’s discretion depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Emphasis added; internal quotation marks omitted.) Esposito v. Esposito, 71 Conn. App. 744, 747, 804 A.2d 846 (2002). Although the defendant sought a hearing specifically to contest factual allegations contained in the motion for order, the court did not hold a hearing; rather, the court simply accepted the plaintiffs’ exhibits and ordered the defendant to pay the attorney’s fees and half of the cost of repaving and regraveling the driveway in accordance with the representations made therein. The defendant thus was denied the opportunity to present, at a hearing, her own evidence regarding the extent of the plaintiffs’ attorney’s fees or the cost of repairing the driveway and to cross-examine as to evidence offered by the plaintiffs. Accordingly, the court erroneously entered orders without having provided the opportunity for an evidentiary hearing.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       William Cooley also was named as a defendant in this action. He did not participate in this appeal, however, nor was he directly involved with many of the underlying circumstances of this case. Therefore, Joanne Cooley will be referred to individually as the defendant.

       The defendant also claims that the court abused its discretion by ordering her to pay compensatory damages without sufficient evidence that the plaintiffs suffered an actual loss. Discussion of this claim is rendered unnecessary by our resolution of the defendant’s second claim, and, thus, we do not address it.

       The plaintiffs installed three security cameras along the driveway after the court issued its December 3, 2007 memorandum of decision in order to document any claimed violations of the court’s orders.

       The record does not indicate that the court acted on this motion.

       The plaintiffs specified in the motion for order that they were “not seeking another hearing with this motion to prove the new . . . [alleged] violations. Instead, they are merely asking the [c]ourt to enter orders consistent with the facts that the [c]ourt . . . already found” in its May 7, 2008 order.

       The plaintiffs allege that seventy-two violations were proven at the hearing so that the monetary penalty totaled $7200.

       The court, in 2009, ordered the defendant to pay a penalty of $100 “for each of the violations of the [c]ourt’s [December 3, 2007] orders presented at the May 7, 2008 hearing on the plaintiffs’ [m]otion for [c]ontempt . . . .”

       The plaintiffs do not argue that the $100 penalties were intended to be compensatory or remedial.

       The plaintiffs also claim that this court’s decision in Southington v. De Mello, 10 Conn. App. 581, 524 A.2d 1151 (1987), supports a determination that the trial court’s imposition of the $100 penalties was not an abuse of discretion. Specifically, the plaintiffs contend that in Southington, this court “was faced with a . . . similar fact pattern and concluded that a financial penalty which could not be fully purged was permissible and civil.” The plaintiffs argue, therefore, that the penalties at issue also were permissible. We disagree.
      In Southington, the defendant constructed a second story addition to his home in violation of local zoning restrictions. Id., 582. On March 23, 1978, the trial court issued an order permanently enjoining the defendant “from using the second story addition for any purpose . . . .” Id., 583. On December 10, 1984, the court found the defendant in contempt of the injunction; id.; and issued an order requiring the defendant to remove the exterior staircase to the second floor and “included conditional coercive fines of $1000 [per] day for future violations of its orders beginning on December 14, 1984.” (Emphasis added.) Id., 590. On July 8, 1985, the court found the defendant in contempt and ordered him “to pay $1000 for each of the four days ... he was in violation of the court’s orders . . . .” (Internal quotation marks omitted.) Id., 584. Additionally, the order provided that if the defendant complied with the mandates therein by a specified date, then “the fine may be reduced to $500 for each of the four days the defendant was in violation of the court’s orders . . . .” (Internal quotation marks omitted.) Id. This court subsequently determined that the $1000 fines were permissible sanctions to impose for a finding of civil contempt. Id., 590.

        Southington is readily distinguishable from the present case. As this court stated: “When the trial court found the defendant in contempt for the third time on December 10,1984, its order included conditional coercive fines of $1000 [per] day for future violations of its orders beginning on December 14,1984. At that point in time, the defendant had the ability to avoid payment of the fine by complying with the terms of the injunction.” Id. Unlike the defendant in Southington, the defendant in the present case did not have the ability to avoid payment of the penalties because they were not conditional or coercive. On the contrary, the defendant did not know that her failure to comply with the court’s orders would result in the imposition of monetary penalties until after the penalties already had been imposed upon her by the court. Therefore, the monetary penalties imposed upon the defendant in Southington clearly were coercive and conditional, while the monetary penalties in the present case are absolute. Accordingly, Southington does not influence our determination of this issue under the facts of this case.

       General Statutes § 52-256b (a) provides: “When any person is found in contempt of any order or judgment of the Superior Court, the court may award to the petitioner a reasonable attorney’s fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt.”