Robert B. Barton et al. v. City of Norwalk (2013)

MEMORANDUM OF DECISION RE MOTION FOR EXAMINATION OF RECORDS FOR OFFER OF COMPROMISE (233.00)

I. Facts

The plaintiffs in this inverse condemnation case have moved, pursuant to General Statutes § 52–192a, to have this court examine the record and award the plaintiffs prejudgment interest based on their offer of compromise filed October 7, 2009 and this court's decision, dated August 28, 2013, awarding the plaintiffs $899,480 plus interest from February 23, 2003 to the date of judgment of $543,384.49.

The plaintiffs' offer of compromise stated:

OFFER OF COMPROMISE

Pursuant to General Statutes § 52–192a and Practice Book § 17–14, the Plaintiff, hereby offers to compromise the above-captioned matter as follows:

1.  Plaintiff stipulates to damages in the total amount of $500,000.00 to be paid by the Defendant, City of Norwalk, to the Plaintiff as full settlement of the claims underlying this action.

2. Defendant agrees to pay Plaintiff interest of 7.5% per annum on this amount from the date of the taking, January 17, 2002, to the date of payment of damages set forth above.

3. Defendant agrees to pay all appraisal fees and other fees and costs expended by the Plaintiff to prosecute this action up to $20,000.00.

4. Defendant agrees to issue all necessary land use certificates and/or approvals to allow Plaintiff and his successors in interest to use the property at 70 South Main Street for its intended use as a mixed use retail/office building.

Dkt. Entry No. 175.10

II. Discussion

The defendant City of Norwalk (Norwalk) opposes the imposition of offer of compromise interest on two distinct grounds.   First, Norwalk contends that offer of compromise interest is not permitted in “condemnation” cases, citing Branford v. Barbara, 294 Conn. 803 (2010).   Second, Norwalk contends that the offer of compromise filed by the plaintiffs, set forth above, contains conditions not permitted by Section 52–192a.

It is not at all clear to this court whether the time restrictions as to when an offer of judgment, now known as an offer of compromise, could have been filed in a condemnation appeal apply to this case.   That subject was discussed in detail in Branford v. Barbara, supra.   This is not a condemnation action or a condemnation appeal action;  rather, it is an action “seeking the recovery of money damages” that fits easily into the definition of cases eligible to file an offer of compromise.  Section 52–192a(a).

Both General Statutes § 52–192a and Practice Book § 17–14 describe a valid offer of compromise as an offer “to settle the claim underlying the action for a sum certain.”   The plaintiffs' offer of compromise filed in this case does not qualify on this ground.   Paragraph 3 of the offer contains the condition that Norwalk pay “all appraisal fees and other fees and costs expended by the Plaintiff to prosecute this action up to $20,000.”   Other fees and costs are not defined, and while it is certainly possible such expenses might exceed $20,000, it is just as possible they might be less, particularly if attorneys fees are not included.   The court determines that Paragraph 3 does not meet the “sum certain” criterion.

Paragraph 4, requiring Norwalk to issue “all necessary land use certificates and/or approvals ․ etc ․” most certainly does not set forth a “sum certain.”   Not only does Paragraph 4 lay out non-monetary conditions, but the types of approvals and certificates sought are unspecific and were not spelled out in the complaint's request for relief.

In Kazlon Communications, LLC v. The American Golfer, Inc. et al., Superior Court, judicial district of Stamford–Norwalk at Stamford, CV 01 0186424 (July 25, 2003) (2003 WL 21805585) [35 Conn. L. Rptr. 127], this court granted prejudgment interest to the plaintiff based on an offer of judgment containing a specific sum of money and an additional condition that the defendant's counterclaim be withdrawn.   This court reasoned that the offer of judgment in that case was definite and in accord with the oft-stated purpose of Section 52–192a to encourage settlements and conserve judicial resources.   The Appellate Court agreed, quoting Cardenas v. Mixcus, 264 Conn. 314, 321 (2003), to the effect that a partial settlement “does little” to conserve judicial resources.  82 Conn.App. 593, 599 (2004).

This case is very unlike Kazlon.   The conditions additional to the sum certain in the plaintiffs' offer are not specific or well defined.   In addition, the plaintiffs' conditions are not geared to achieving a “global” settlement as was the case in Kazlon.   Indeed, the court can envision likely controversy and possibly litigation as to what certificates and approvals are needed to allow the plaintiffs to use the property as a “mixed use retail/office building.”   Finally, the conditions specified in Paragraph 4 were not achieved by the plaintiffs in this litigation.   Therefore, even in the unlikely scenario that Section 52–192a could be interpreted to permit non-monetary demands in an offer of compromise, like the plaintiffs' demands here, the plaintiffs did not obtain their goal, as this court ordered no relief of the kind sought in Paragraph 4.

III. Conclusion

Having reviewed the record, the court declines to order the imposition of prejudgment interest pursuant to Section 52–192a.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.