LLC v. City of Shelton et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR REARGUMENT AND/OR RECONSIDERATION

By its memorandum of decision dated December 23, 2010, this Court denied the defendants' motion for summary judgment which was premised on the argument that the plaintiff's claims were barred by the doctrine of res judicata.   The defendants have moved Court for re-argument and/or reconsideration of its decision which the Court hereby denies.

The Court does, however, further articulate the basis for its decision as follows.

The plaintiff, in its brief in opposition to this motion, points out that the mandamus action which preceded the instant suit had been brought against the City of Shelton and a number of its officials whereas the instant action names only the City of Shelton and Robert Kulacz, its City Engineer, in his individual capacity.   In addition, relief sought in the mandamus action was to have the Court order such officials to do their jobs.   The relief sought in such an action is entirely different from the relief sought in the instant case.   The plaintiff sought immediate relief from the Court regarding a very specific complaint-the failure or the refusal of an official of a town to perform his duty-which is the purpose of a mandamus action.   That relief can be, and was, afforded to the plaintiff on an expeditious basis without the procedural burden and delay which accompany a jury trial such as the instant case.

As the plaintiff points out in its brief in opposition, in the case of New England Estates, LLC vs.   Town of Branford, 294 Conn. 817 (2010), that Court noted, “ ․ the doctrine of res judicata is driven by the principle of judicial economy and not by the mechanistic application of the transactional test.”  Id. 845.   The fact that both the instant case and the mandamus case involved the taking of property does not change that finding.

The defendants argue that the plaintiff not only could have but should have sought the relief it now seeks at the time when it brought the mandamus action The Court agrees with the plaintiff that it not only did it not have to do so, it could not have done so because the conduct of the defendant Kulacz which is the basis of this suit did not occur-or was not admitted to by him-until he testified at the mandamus trial.   The Court alluded to the allegations in the plaintiff's complaint regarding the testimony of Kulacz in its previous memorandum of decision.¹  The plaintiff could not have made allegations concerning Kulacz's actionable conduct when his testimony, which is the basis for the allegation, had not occurred yet.

It is for the foregoing reasons as well as those set forth in the memorandum of decision dated December 23, 2010, that the Court has denied the defendants' motion for summary judgment.

BY THE COURT

Joseph W. Doherty, J.

FOOTNOTES

FN1. In the instant motion the defendants wrote that the Court was mistaken when it found that the allegations concerning Kulacz's testimony were set forth in paragraph 16 of Count Two, and that, in fact, “they appeared for the first time in Paragraph 14 of Count Three.”   This is a rather disingenuous comment or the reason that those allegations did appear in paragraph 16 of Count Two, albeit in the plaintiff's original complaint dated July 17, 2007, and were reiterated in Paragraph 14 of Count Three in the plaintiff's amended complaint dated November 12, 2007..  FN1. In the instant motion the defendants wrote that the Court was mistaken when it found that the allegations concerning Kulacz's testimony were set forth in paragraph 16 of Count Two, and that, in fact, “they appeared for the first time in Paragraph 14 of Count Three.”   This is a rather disingenuous comment or the reason that those allegations did appear in paragraph 16 of Count Two, albeit in the plaintiff's original complaint dated July 17, 2007, and were reiterated in Paragraph 14 of Count Three in the plaintiff's amended complaint dated November 12, 2007.

Doherty, Joseph W., J.