Orange Hotel Development Limited Partnership et al. v. The United Illuminating Company (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS/STAY (# 102)

The plaintiffs, Orange Hotel Development, LLP, and S.C. Hospitality, LLC, commenced the present action against the defendant, The United Illuminating Company, by a summons and complaint filed on April 22, 2010.   The plaintiffs are also the party plaintiffs in two related administrative appeals, Orange Hotel Development, LLP v. Connecticut State Traffic Commission, Superior Court, judicial district of Hartford, Docket No. CV 10 6005557 and Orange Hotel Development, LLP v. Zoning Board of Appeals, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 10 6004709, the pendency of which is relevant to the disposition of the present motion to dismiss.

Count one of the plaintiffs' five-count complaint states a cause of action for intentional misrepresentation and alleges the following salient facts.   The plaintiffs are the owners of certain real property situated in the town of Orange at numbers 132 and 136 Marsh Hill Road, which is a six-lane thoroughfare.   The plaintiffs' properties are improved with a restaurant at the roadside and a hotel set behind the restaurant.   Both properties are served by a narrow driveway that connects to Marsh Hill Road.

The defendant is the owner of certain real property situated at numbers 100–110 and 114 Marsh Hill Road, and the tenant of the real property situated at numbers 155, 163 and 177 Indian River Road and 0 Marsh Hill Road. The southern boundary of the plaintiffs' properties is shared with the defendant's properties at 100–110 and 114 Marsh Hill Road, and the northern boundary of the plaintiffs' properties is shared with the defendant's leased properties.

After acquiring the property at numbers 100–110 and 114 Marsh Hill Road in November of 2008, the defendant made numerous public and private representations through its agents that it would provide the plaintiff with a reciprocal easement to facilitate the construction of a driveway connection between the plaintiffs' properties and the properties owned by the defendant so that the patrons of the businesses operated on the plaintiffs' properties could have access to the defendant's driveway and dedicated traffic signal.   Subsequent to obtaining approval of its application for a zoning permit from the Orange planning and zoning commission the defendant's agent wrote a letter to the plaintiff on October 29, 2009, indicating that the defendant did not intend to construct the driveway connection or provide the plaintiff with an easement.

The plaintiffs further allege that the pre-approval representations made by the agents of the defendant were false statements of fact, which the defendant knew to be untrue and were made “to induce the plaintiffs not to oppose the defendant's zoning applications and not to appeal the approval of those zoning applications.”   The plaintiffs allege that they relied upon the defendant's false statements to their detriment, that they suffered damages as a result of their reliance and that they will suffer irreparable harm if they are denied “the ability to provide the public safe ingress and egress to their property.”

The plaintiffs rely upon the same substantive factual allegations contained in count one of their complaint to support the causes of action stated in counts two through five of their complaint:  negligent misrepresentation, promissory estoppel, easement by estoppel and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110 et seq., respectively.   The plaintiffs seek an order of this court:  (a) prohibiting the defendant from proceeding with its planned development unless or until a reciprocal easement agreement is executed to facilitate the promised connection;  (b) requiring the defendant to construct the driveway connection and/or (c) enforcing an existing easement by estoppel by requiring the defendant to construct the driveway connection and precluding the defendant from interfering with the plaintiffs' use of the easement.   The plaintiffs also claim compensatory damages, common law punitive damages, punitive damages as provided for by General Statutes § 42–110g(a) and attorneys fees and costs pursuant to General Statues § 42–110g(d).

The defendant filed the present motion to dismiss the plaintiffs' complaint on the ground that the court lacks subject matter jurisdiction, together with a memorandum of law in support thereof on July 7, 2010.   Alternatively, the defendant moves for an order staying the present action until the plaintiffs' administrative appeals are resolved.   The plaintiffs filed an objection to the defendant's motion to dismiss and a memorandum in support thereof on August 20, 2010.   The defendant filed a supplemental memorandum in opposition on September 28, 2010 and the plaintiff filed a reply memorandum on October 19, 2010.   The court heard oral argument on December 14, 2010.

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).  “[The] plaintiff bears the burden of proving subject matter jurisdiction, wherever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “When a court ․ decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”   (Citation omitted;  internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

A

Whether the Plaintiffs' Claims are Justiciable

In both its memorandum of law in support of its motion to dismiss and its supplemental memorandum of law, the defendant argues that the causes of action contained in the plaintiffs' complaint are unripe until the Superior Court renders final decisions in the plaintiffs' state traffic commission appeal and land use appeal.   The defendant contends that the plaintiffs' action is premature because, if the plaintiffs prevail in either of their administrative appeals, the plaintiffs will not “suffer the core injury alleged in [their] complaint.”

The plaintiffs reply that there is a justiciable controversy between the parties.   The crux of the plaintiffs' argument is that the claims raised in the present case relate to a private property dispute, and that their administrative appeals relate to the decision making processes of the respective administrative bodies.   The plaintiffs support their position by demonstrating that the relief that they request in the present case is separate and distinct from that which they request in their administrative appeals.   The plaintiffs conclude that the present case represents an actual controversy that is ripe for judicial determination because the injury that they complain of is not contingent upon the resolution of their administrative appeals.

“Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ․ (2) that the interests of the parties be adverse ․ (3) that the matter in controversy be capable of being adjudicated by the judicial power ․ and (4) that the determination of the controversy will result in practical relief to the complainant.”  Statewide Grievance Committee v. Burton, 282 Conn. 1, 7, 917 A.2d 1 (2007).  “[R]ipeness is a sine qua non of justiciability ․ An issue regarding justiciability ․ must be resolved as a threshold matter because it implicates [the] court's subject matter jurisdiction ․ If it becomes apparent to the court that such jurisdiction is lacking, the [case] must be dismissed.”  (Internal quotation marks omitted.)  Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 812, 967 A.2d 1 (2009).  “[I]n determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.”  (Internal quotation marks omitted.)  Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86–87, 952 A.2d 1 (2008);  Milford Power Co. v. Alstom Power, Inc., 263 Conn. 616, 626–27, 882 A.2d 196 (2003).

The substantive case relied upon by the defendant in its briefs and at argument, Palozie v. Palozie, Superior Court, judicial district of Middlesex, Docket No. CV 05 4004479 (January 17, 2006, Aurigemma, J.), is inapposite to the present case.   In Palozie, the co-administrators of an estate sought monetary damages for unjust enrichment against the defendant.   The court granted the defendant's motion to dismiss because the essential elements of the plaintiffs' claims were dependent upon the outcome of a coetaneous appeal of a probate court decision, which could have dematerialized the plaintiffs' claims.   In Palozie, there was no question as to the conjugation of the monetary damages sought in the civil suit and the reversal of the Probate Court's decision sought in the appeal because both cases concerned the same piece of real property.   Contrarily, the relief requested by the plaintiffs in the present case is unrelated to the relief that can be afforded by an administrative appeal.

The court is unpersuaded by the defendant's contention that the claims brought in the present case are merely speculative until the Superior Court renders final judgments in the plaintiffs' administrative appeals.   An “administrative appeal serves the remedial purpose of reviewing the propriety of the board's decision.”  Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 207, 719 A.2d 465 (1998).   In the present case, the plaintiffs' claims rise above an abstract disagreement insofar as they seek monetary damages and a determination of private property rights.   Stated otherwise, the resolution of the plaintiffs' administrative appeals will not extinguish the claims raised in the present case.

Admitting the well pleaded facts of the plaintiffs' complaint, the plaintiffs have established the existence of an actual controversy between the parties relating to the defendant's multiple public and private representations that it intended to construct the driveway connection between its property and the plaintiffs' property.   The plaintiffs have also established that the interests of the parties are adverse, that the matter in dispute is capable of judicial determination on the merits, and that the damages alleged by the plaintiffs are neither hypothetical, nor contingent on the outcome of the plaintiffs' administrative appeals.   Accordingly, the plaintiffs have met their burden to prove subject matter jurisdiction by demonstrating the existence of a justiciable issue.

For the foregoing reasons, the plaintiffs' objection to the defendant's motion to dismiss is sustained, and the defendant's motion to dismiss is denied.

B

Whether the Court Should Stay the Present Action

In the alternative, the defendant moves for an order staying the present case.   The defendant urges that the outcome of the plaintiffs' administrative appeals may moot the plaintiffs' claims.  “In the absence of a statutory mandate, the granting of an application or a motion for a stay of an action or proceeding is addressed to the discretion of the trial court.”  (Internal quotation marks omitted.)  Voluntown v. Rytman, 21 Conn.App. 275, 287, 573 A.2d 336 (1990).

As discussed in part A, the present case seeks more relief than can be afforded in the plaintiffs' administrative appeals.   The court finds that this case should continue to mature through pleadings, discovery, production, depositions, alternative dispute resolution and should not wither on the vine.   Accordingly, the defendant's motion to stay the present case pending a resolution of the plaintiffs' administrative appeals is denied.

Moran, John w. J.T.R.

Moran, John W., J.T.R.