Adam McNiece v. Town of Waterford et al. (2016)

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

In this case, the plaintiff, Adam McNiece, a building contractor, seeks money damages for injuries and losses stemming from the alleged actions of defendant town and town officials in refusing to inspect and issue permits allowing him to remodel a two-car garage at residential property he owns, located at 184 Oswegatchie Road in Waterford, CT, allegedly in retaliation for his having brought a federal lawsuit against them earlier.  The extant operative Fourth Revised Amended Complaint is in seven counts for refusal to inspect in reckless disregard to health and safety;  refusal to issue permits in reckless disregard to health and safety;  denial of right to appeal;  defamation;  tortious interference with a business expectancy;  false light invasion of privacy;  and civil conspiracy.  The remaining defendants in the case are the Town of Waterford, First Selectman Daniel Steward;  Building Inspector Frank Hoagland, III;  Planning Director Thomas Wagner and Zoning Enforcement Officer Michael Glidden.  Pending before the court is a motion for summary judgment filed by the defendants seeking a judgment in their favor on all remaining counts.  Doc. No. 264.00.  For the following reasons, the court finds that the material facts are not in dispute, and the defendants are entitled to judgment as a matter of law all remaining counts.  Therefore, the motion is granted, and judgment is entered in favor of the remaining defendants, Town of Waterford, Daniel Steward, Frank Hoagland, III, Thomas Wagner and Michael Glidden, and against the plaintiff on all remaining counts.

I

The law governing summary judgment is well-settled.  As our Appellate Court has summarized:

Practice Book § [17–49] requires that 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.  A material fact is a fact that will make a difference in the result of the case ․ The facts at issue are those alleged in the pleadings.  (Citation omitted;  internal quotation marks omitted.)  Gohel v. Allstate Ins. Co., 61 Conn.App. 806, 809, 768 A.2d 950 (2001).

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In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.  The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.  The courts hold the movant to a strict standard.  To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.  (Citations omitted;  internal quotation marks omitted.)  Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).

It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17–45 and 17–46, a party opposing a summary judgment motion “must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Harvey v. Boehringer Ingelheim Corp., 52 Conn.App. 1, 4, 724 A.2d 1143 (1999).  As noted by the trial court in this case, typically “[d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.”  (Internal quotation marks omitted.)  New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).  Moreover, “[t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue ․ Such assertions are insufficient regardless of whether they are contained in a complaint or a brief ․ Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.”  (Citations omitted;  internal quotation marks omitted.)  Id., 244–45.

Rockwell v. Quintner, 96 Conn.App. 221, 227–29, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

The Practice Book further mandates that “[a]ny adverse party shall at least five days before the date the motion is to be considered on short calendar file opposing affidavits and other available documentary evidence.  Affidavits, and other documentary proof not already part of the file, shall be filed and served as are pleadings.”  Practice Book § 17–45.  “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.  Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.”  Practice Book § 17–46.

II

The plaintiff, Adam McNiece, commenced this action against the defendants Town of Waterford, First Selectman Daniel Steward, Building Inspector Frank Hoagland, III, Planning Director Thomas Wagner, and Zoning Enforcement Officer Michael Glidden, by writ, summons and complaint served on December 18, 2012.  Town Attorney Robert Avena was also sued, but judgment entered in his favor on October 28, 2015.  See Order on Doc. No. 258.00.

The operative complaint is the plaintiff's Fourth Revised Complaint dated November 19, 2014.  Doc No. 241.00.  In it, the plaintiff alleges that he is a resident of the State of Connecticut and he is a licensed and insured contractor who is authorized to provide building, remodeling and construction repair services for commercial and residential properties.  He alleges that he has provided his contractor services to individuals and entities located in New London County for the past two decades and that he is well known to Waterford building officials as a result of having previously submitted applications for permits to the town and its employees for work to be performed on property located within the town.  He alleges that in May 2010, he purchased a residential property at 184 Oswegatchie Road in Waterford, CT and that this property contains a detached two-car garage.

Count One of the complaint alleges that, on or about May 13, 2010, the plaintiff sought routine permits from the town to make improvements to his property, including the creation of a second floor addition and remodeling of the detached two-car garage.  The plaintiff alleges that on or about October 25, 2011, the defendants refused to inspect his property in retaliation against the plaintiff for having brought a federal lawsuit against the town and the named defendants in reckless disregard for public health or safety and in violation of General Statutes § 52–557n(b)(8).  As a result of the defendants' actions, the plaintiff asserts that he has suffered damages.

Count Two alleges that that, on or about August 28, 2012, the defendants refused to process the plaintiff's applications for plumbing and electrical permits, which amounted to an abuse of discretion.  The plaintiff further alleges that the defendants continued to disregard a third-party inspector's recommendations regarding numerous code violations that were discovered during that inspection.  The plaintiff alleges that the failure to process his permits evidences a reckless disregard for public health or safety.  Additionally, he alleges that in September 2012, the defendants refused to process his application for a permit to repair the two-car garage, which he alleges was evidence of a reckless disregard for public health or safety.  He alleges that the conduct violates General Statues § 52–557n(b)(7).  He alleges that he has suffered damages as a result of the defendants' refusal to process his permits.

In Count Three the plaintiff alleges that on or about September 16, 2012, he formally requested an appeal of the defendants' refusal to inspect his property as well as the denial of his permit applications.  He alleges that, two days later, on September 18, 2012, the defendants denied his request to appeal in violation of General Statutes § 26–266, et seq. without reasonable basis, and that the denial constituted an abuse of discretion, and that he suffered damages.

Counts Four, Five and Six are based on the allegation that, sometime in June 2012, the defendant Hoagland, acting in concert with the other defendants and/or with their knowledge and acquiescence, followed the plaintiff to his job site and told a client of the plaintiff that the plaintiff did not hold a valid contractor's license and was not properly insured.  The plaintiff alleges that he believes that the defendants plotted to have Mr. Hoagland follow the plaintiff to his job sites in order to intimidate and harass him.  The plaintiff further alleges that his client questioned him regarding his status as a contractor and the state of his insurance coverage, causing him to waste work hours and lose future business from that client and others in the community.  The claims sound in defamation, tortious interference with a business expectancy and false light invasion of privacy.  He alleges that he has suffered damages under all theories.

Finally, in Count Seven, the plaintiff alleges that the refusal to inspect, refusal to process permit applications, denial of his right to appeal and the false and defamatory statements made by the defendant, Hoagland, were part of a course of conduct employed by the defendants pursuant to a scheme and in furtherance of the object of intimidating and harassing the plaintiff.  The conspiracy cause him damages, he alleges.

The plaintiff is self-represented.  The defendants are represented by counsel.

In connection with their motion for summary judgment, the defendants filed an affidavit by Frank Hoagland, III, and an affidavit by Carol Libby, with copies of discovery requests and responses, correspondence, town records and a copy of a decision of the court (Moukawsher, J.) rendered earlier in this case.  The plaintiff filed an objection with copies of correspondence attached.

Based on the information supplied, the court finds that the following material facts are not in dispute:  On August 9, 2013, the defendants served a set of interrogatories and requests for production on the plaintiff.  The plaintiff provided his first response on March 14, 2014.  The responses failed to fully and fairly respond to the defendants' discovery requests.  The defendants moved that the plaintiff be nonsuited for the failure to properly respond to their discovery requests on March 21, 2014.  After hearing, the court (Moukawsher, J.) found that the plaintiff had not adequately responded and the plaintiff was ordered to supplement his responses by July 25, 2014.  Order on Doc. No. 180.00.

On July 21, 2014, the plaintiff supplemented his responses to the defendants' interrogatories and requests for production.  The responses did not adequately respond to the discovery requests, so, the defendants again moved, on August 8, 2014, for a judgment of nonsuit.  After hearing, the court (Moukawsher, J.) did not grant an immediate nonsuit, but precluded the plaintiff from offering certain evidence in support of his various claims.  The order, in pertinent part, provided as follows:

1. At trial, McNiece may not offer dollar damages evidence under counts one, two, four, five, six and seven.

2. McNiece may not provide any documents in support of his claim for damages.

3. McNiece may not offer evidence about what Waterford officials said concerning his permit requests.

4. McNiece may not offer evidence on the topic of defendant, Hoagland, allegedly following him around and speaking to McNiece clients.

5. McNiece may not offer evidence at trial on the topic of wasted hours spent demonstrating to a client he was properly licensed and insured.

6. McNiece may not offer evidence of any ‘scheme’ or “course of conduct,” involving the defendants.

Memorandum of Decision, Doc No. 223.01, p. 9.

The court also ordered, with respect to the conspiracy claim, that “McNiece may not offer evidence that anyone else participated in the alleged conduct besides the defendants and he may only offer evidence that the problem with them is that they favor certain contractors with lax enforcement and disfavor others.”  Id., p. 8.

III

Based on these undisputed facts, the defendants argue that they are entitled to judgment as a matter of law on all of the remaining counts in this case.  The issues are discussed seriatim:

A

First, defendants argue that they are entitled to judgment on Counts One and Two because the court's prior ruling, prohibiting plaintiff from offering evidence or documents on the issue of damages on these counts, prevents the plaintiff from proving an essential element of his causes of action.  The court agrees.  Counts One and Two are brought pursuant to General Statutes §§ 52–557n(b)(7) and (8).  Those sections are exceptions to the general rule granting governmental immunity for “negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”  General Statutes § 52–557n(a)(2)(B).  As defendants correctly point out, the “[e]ssential elements of a cause of action in negligence are well-established:  duty;  breach of that duty;  causation;  and actual injury.”  (Citations omitted;  emphasis added.)  Burton v. City of Stamford, 115 Conn.App. 47, 75, n.18, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009).  It is also correct that the court previously barred the plaintiff from offering evidence of damages on these counts.  Damages are different from injuries.  The court did not bar proof of injury.  In some cases, where there is proof of actual injury, but no proof of damages, the law allows an award of nominal damages.  However, in negligence cases, proof of damages also is a necessary element of the cause of action.  Right v. Breen, 277 Conn. 364, 375–77, 890 A.2d 1287 (2006).  Without evidence of damages, the plaintiff cannot prove his causes of action in Counts One and Two. Accordingly, the motion is granted on this point.

B

Next, defendants argue that they are entitled to judgment as a matter of law on Count Three, which alleges a violation of General Statutes § 29–266(b), because that statute does not provide a private right of action against the defendants.  The court agrees.  To be a source for a private cause of action for money damages, such a right must be in evidence in the text of the statute, either explicitly or implicitly.  Perez–Dickenson v. City of Bridgeport, 304 Conn. 483, 506–08, 43 A.3d 69 (2012).  There is no such evidence in this case.  General Statutes § 29–266(b) provides for appeals from a local building official to a local building board of appeals.  No action for money damages is explicit or implicit.  Therefore, summary judgment must enter in defendants' favor on this point.

Defendants also argue that they are entitled to judgment as a matter of law on this count because the plaintiff has failed to exhaust his administrative remedies.  Having decided that the defendants are entitled to judgment as a matter of law because the statute does not grant a private right of action, it is unnecessary to decide this additional point.

C

The defendants argue that they are entitled to judgment as a matter of law as to Counts Four and Five because the plaintiff has been precluded from introducing evidence necessary to prove those causes of action.  The court agrees.

Count Four is for defamation.  “To establish a prima facie case of defamation, the plaintiff must demonstrate that:  (1) the defendant published a defamatory statement;  (2) the defamatory statement identified the plaintiff to a third person;  (3) the defamatory statement was published to a third person;  and (4) the plaintiff's reputation suffered injury as a result of the statement.”  (Citations omitted.)  Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).  The plaintiff's claim in this regard is based upon statements made by the defendant, Hoagland, to one of plaintiff's clients sometime in June 2012.  The court, (Moukawsher, J.), previously ruled that the plaintiff is precluded from offering evidence on the topic of Hoagland allegedly speaking to plaintiff's clients.  See Memorandum of Decision, Doc. No. 223.01, p. 9. That ruling prevents the plaintiff from proving the first three elements of his cause of action for defamation.  Since the plaintiff is unable to prove all of the elements of his cause of action under Count Four, summary judgment shall enter in favor of the defendants on Count Four.

Count Five is for tortious interference with a business expectancy.  “It is well established that the elements of a claim for tortuous interference with business expectancies are:  (1) a business relationship between a plaintiff and another party;  (2) the defendant's intentional interference with the business relationship while knowing of the relationship;  and (3) as a result of the interference, the plaintiff suffers actual loss.”  (Citation omitted;  internal quotation marks omitted;  emphasis added.)  American Diamond Exchange, Inc. v. Alpert, 302 Conn. 494, 510, 28 A.3d 926 (2011).  The plaintiff's claim in this regard is based upon the defendant, Hoagland, following plaintiff to his job sites and statements made by the defendant, Hoagland, to one of plaintiff's clients sometime in June 2012.  Defendants argue that the plaintiff is precluded from proving such interference because the court (Moukawsher, J.), previously ruled that the plaintiff is precluded from offering evidence on the topic of Hoagland allegedly following him around and speaking to his clients.  The court did so rule.  See Memorandum of Decision, Doc. No. 223.01, p.9. That ruling prevents the plaintiff from proving the first element of his cause of action for tortious interference.

Defendants also argue that the court prevented plaintiff from proving damages on this count.  The court did rule that the plaintiff may not offer damages evidence under Count Five. See Order, Id. In tortious interference cases, actual loss must be proven, i.e., damages are an essential element of the claim.  American Diamond Exchange, Inc. v Alpert, supra 302 Conn. 510.  Thus, the court's ruling also prevents the plaintiff from proving the third element of his cause of action.

Since the plaintiff is unable to prove all of the elements of his cause of action under Count Five, summary judgment shall enter in favor of the defendants on that Count.

D

Defendants argue that they are entitled to summary judgment as to Count Six of the plaintiff's Fourth Revised Amended Complaint, which alleges false light invasion of privacy, because of the previously ruling of the court precluding certain evidence.  The court agrees.

“[A] false light invasion of privacy occurs if (a) the false light in which the other was placed would be highly offensive to a reasonable person and (b) the actor had knowledge or acted in reckless disregard as to the falsity of the published matter and the false light in which the other would be placed ․ The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true, and (2) is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position ․” (Citations omitted;  internal quotation marks omitted.)  Goodrich v. Waterbury Republican–American, Inc., 188 Conn. 107, 131, 448 A.2d 1317 (1982).  The plaintiff's claim in this regard is based upon statements made by the defendant, Hoagland, to one of plaintiff's clients sometime in June 2012.  The court, (Moukawsher, J.), previously ruled that the plaintiff is precluded from offering evidence on the topic of Hoagland allegedly speaking to plaintiff's clients.  See Memorandum of Decision, Doc. No. 223.01, p. 9. That ruling prevents the plaintiff from proving the matter.  Therefore, summary judgment shall enter in favor of the defendants on Count Six.

E

Finally, defendants argue that they are entitled to judgment as a matter of law on plaintiff's Count Seven, which alleges civil conspiracy, because the prior court ruling prevents the plaintiff from introducing evidence proving the claim.  The court agrees.

“The elements of a civil action for conspiracy are:  (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which results in damage to the plaintiff.”  (Citation omitted;  internal quotation marks omitted.)  Macomber v. Travelers Property and Casualty Corp., 277 Conn. 617, 635–36, 894 A.2d 240 (2006).  Defendants argue, inter alia, that the plaintiff is unable to prove a conspiracy in this case because the court, (Moukawsher, J), previously ruled that the plaintiff may not offer evidence of any “scheme” or “course of conduct” involving the defendants.  See Memorandum of Decision, Doc. No. 223.01, p. 9. The court agrees that the prior ruling prevents plaintiff from proving the matter.  Therefore, summary judgment shall enter in favor of the defendants on Count Seven.

Defendants also argue that they are entitled to judgment as a matter of law on this count on several other theories.  Having decided that the defendants are entitled to judgment as a matter of law because the plaintiff cannot prove a scheme or course of conduct, it is unnecessary to decide any additional points.

IV

For all of the foregoing reasons, the court finds that the material facts are not in dispute, and the defendants are entitled to judgment as a matter of law on all remaining counts.  Therefore, the motion is granted, and judgment is entered in favor of the remaining defendants, Town of Waterford, Daniel Steward, Frank Hoagland, III, Thomas Wagner and Michael Glidden, and against the plaintiff on all remaining counts.

Robert F. Vacchelli

Judge, Superior Court

Vacchelli, Robert F., J.