Wellswood Columbia, LLC v. Town of Hebron
Wellswood Columbia, LLC v. Town of Hebron
Opinion
**55
In
Wellswood Columbia, LLC
v.
Hebron
,
I
FACTS AND PROCEDURAL HISTORY
This court's opinion in Wellswood I sets forth the following relevant facts and procedural history. "In early 2004, the plaintiffs were considering the purchase of the property, which consisted of approximately 188 acres of land in the town of Columbia, for purposes of constructing a six phase residential retirement community. The only ... existing access to the property **57 [was] Wellswood Road in Hebron, 4 which runs from Route 66 to the town line between Hebron and Columbia. At that point, Wellswood Road becomes Zola Road, which continues into the property and terminates in a dead end....
"Because the only access to the property was by way of Wellswood Road, the plaintiffs requested a meeting with Hebron town officials to discuss the proposed development. During a meeting on April 21, 2004, Hebron town officials expressed several concerns about the proposed development, including concerns about storm water runoff from Wellswood Road, the adequacy of the water supply and the feasibility of septic services. The parties also discussed whether access to the property would be through private or public roads.... Hebron town officials indicated that, because the sole access to the development, at least initially, would be Wellswood Road, the development did not comply with that town's subdivision regulations.
"After several additional meetings with the Hebron town officials to discuss the development, Wellswood purchased the property in August, 2004, and decided to go forward with its development plans despite knowing of [those] concerns. In October, 2004, the plaintiffs began the subdivision approval process in Columbia. On December 9, 2004, Paul Mazzaccaro, then the town manager for Hebron, sent a letter to the Columbia [P]lanning and [Z]oning [C]ommission in which he raised several concerns regarding the proposed development. Mazzaccaro stated that, as depicted in the plans that the plaintiffs had submitted, the proposed development *415 'never could have access to other ... development [in Columbia] or be connected to the present Columbia street system.' He requested that future plans **58 provide for such connection. Thereafter, the plaintiffs met separately with officials of both towns and it was determined that Mazzaccaro's letter had been based on outdated plans. Later subdivision plans showed several proposed new streets running from Zola Road to the property line. None of these streets, however, connected with existing roads in Columbia.
"Over the next several months, the plaintiffs continued the subdivision approval process in Columbia. On September 13, 2005, the Columbia [P]lanning and [Z]oning [C]ommission conducted a public hearing on the proposed subdivision. Several town officials from Hebron attended the hearing and voiced concerns over the remote location of the subdivision, the difficulty of responding to emergencies at that location, the effect of additional traffic on the safety of Wellswood Road and the increased cost to Hebron of maintaining the road and providing emergency services.
"On October 6, 2005, the Hebron [P]lanning and [Z]oning [C]ommission held a special meeting and recommended closing and barricading Wellswood Road at the town line. The Hebron [B]oard of [S]electmen adopted the recommendation that night. Thereafter, the plaintiffs brought [an] action seeking a temporary and permanent injunction to prevent [Hebron] from closing Wellswood Road. After the plaintiffs filed the action, [Hebron] ... posted a 'road closed' sign at the end of Wellswood Road. [Hebron] then filed a motion to dismiss the action for lack of subject matter jurisdiction, claiming, inter alia, that the plaintiffs' lacked standing, which the trial court, Peck, J. , denied.
"In April, 2006, the town of Columbia approved the plaintiffs' subdivision application. The parties subsequently entered into a stipulation for a temporary injunction pursuant to which the town of Hebron was enjoined from obstructing the plaintiffs' use of Wellswood
**59
Road for access to their property pending resolution of the action. Thereafter, the action was tried to the court,
Hon. Lawrence C. Klacz
a
k
, judge trial referee ...." (Footnotes altered.)
Wellswood Columbia, LLC
v.
Hebron , supra,
On July 21, 2008, the trial court issued a memorandum of decision in which it concluded, inter alia, that the plaintiffs were not entitled to a permanent injunction because they had failed to demonstrate that they were without an adequate remedy at law or that they would suffer irreparable harm in the absence of an injunction.
5
Wellswood Columbia, LLC
v.
Hebron
, Superior Court, judicial district of Tolland, Docket No. TTD-CV-05-4003914-S,
Finally, the trial court observed that "the plaintiffs argue in their [post trial] brief that, should the court find [that] injunctive relief is not the proper remedy
**61
... they are entitled to money damages and a temporary injunction until such damages are paid ...."
On appeal to this court in
Wellswood I
, the plaintiffs challenged the trial court's denial of their request for a permanent injunction but not the court's denial of their request for damages. Specifically, the plaintiffs argued that the trial court "improperly denied their request for a permanent injunction barring the [town] from closing Wellswood Road because: (1) barring the road was an unreasonable and arbitrary exercise of police power; (2) equitable
*417
relief is an appropriate remedy for the destruction of access even without a showing of irreparable harm; (3) even if a showing of irreparable harm is required, the plaintiffs were irreparably harmed by the road closure because there is no other access to the property; (4) the road closure was inconsistent with the public policy underlying General Statutes § 13a-55 ; and [5] contrary to the trial court's finding, the plaintiffs cannot use the property for purposes other than the subdivision if the road is closed." (Footnote omitted.)
Wellswood Columbia, LLC
v.
Hebron , supra,
In reaching our determination, we rejected the town's contention that the plaintiffs were not aggrieved by its decision to close the road, and, therefore, the plaintiffs lacked standing to bring the injunction action. Id., at 809, 813,
Shortly after the trial court issued the injunction, as directed by this court on remand, the plaintiffs brought the present action seeking damages for, inter alia, a temporary taking. In their complaint, the plaintiffs alleged that, as a result of the temporary closure of Wellswood Road, "[they] were prevented from developing the property and deprived of the economic value and income to be derived from the property and from [the] development. When the ... [t]own ... posted and maintained the 'road closed' sign, it knew or should have known that any potential buyer with respect to [the residential retirement community] would become aware of the 'road closed' sign, and that [the] sign would have the effect of driving away potential buyers with respect to [the residential retirement community]." Thereafter, the town removed the case to the United **63 States District Court for the District of Connecticut, and that court, Bryant, J., subsequently dismissed two of the plaintiffs' federal claims, retained jurisdiction over a bad faith takings claim, and remanded the plaintiffs' temporary takings, temporary nuisance and tortious interference with business expectancies claims to the Superior Court.
Following remand to the Superior Court, the town moved for summary judgment, arguing, inter alia, that the plaintiffs' claims were barred by the doctrine of res judicata and the applicable statutes of limitations. The trial court, Elgo, J. , granted the town's motion, concluding that all of the plaintiffs' claims arose out of the same operative facts as the plaintiffs' claim for injunctive relief, and, therefore, the plaintiffs'
*418 claims should have been brought in Wellswood I . After oral argument in this court, the District Court reached a similar conclusion with respect to the plaintiffs' bad faith takings claim and granted summary judgment in favor of the town with respect to that claim. See Wellswood Columbia, LLC v. Hebron , United States District Court, Docket No. 3:10-CV-1467 (VLB) (D. Conn. March 28, 2017).
On appeal, the plaintiffs argue that their takings and tortious interference with business expectancies claims are not barred by res judicata because they did not accrue until the town reopened the road following this court's decision in Wellswood I . In support of this claim, the plaintiffs maintain that, until the reopening of the road, the full extent of their damages could not be established with reasonable certainty. The plaintiffs further argue that the road closure constituted a private temporary or "continuing" nuisance, 7 and, as such, their **64 damages claim falls within the exception to res judicata for "continuing or recurrent wrong[s]." 1 Restatement (Second), Judgments § 26 (1) (e), p. 234 (1982). 8 In the alternative, the plaintiffs argue that the policies underlying the doctrine of res judicata, in particular, the policy of judicial economy, are not furthered by the doctrine's application in the present case. The plaintiffs' claim, among other reasons, that damages could not have been assessed in Wellswood I until this court ruled, in 2010, on the propriety of the town's conduct and, therefore, even if the plaintiffs had brought all of their claims in the earlier action, "[t]he remand order from this court would have been ... for a hearing in damages for the temporary taking." Thus, according to the plaintiffs, because further proceedings would have been required, even if they had brought all of their claims in Wellswood I , allowing the present case to proceed would work no real violence on the doctrine of res judicata.
We conclude that the plaintiffs' claims are foreclosed by principles of res judicata that are well established in Connecticut law, and that the out-of-state cases on which the plaintiffs rely provide no compelling reason to deviate from those principles so as to exempt their **65 claims from the preclusive effect of res judicata. To the contrary, as we explain more fully hereinafter, the present case falls squarely within the parameters of that doctrine and its jurisprudential underpinnings.
II
GOVERNING LEGAL PRINCIPLES
It has long been an "established principle in our law of civil procedure that
*419
two [actions] shall not be brought for the determination of matters in controversy between the same parties, whether relating to legal or equitable rights, or to both, when such determination can be had as effectually and properly in one [action].... To this end the law provides that all courts having jurisdiction at law and in equity, may administer legal and equitable rights, and apply legal and equitable remedies in favor of either party, in one and the same [action], so that legal and equitable rights of the parties may be enforced and protected in one action." (Internal quotation marks omitted.)
Beach
v.
Beach Hotel Corp.
,
"The doctrine of res judicata holds that an existing final judgment rendered [on] 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 [that] were actually made or [that] might have been made....
"The applicability of the [doctrine] of ... res judicata presents a question of law that we review de novo.... Because [the doctrine is a] judicially created [rule] of reason that [is] enforced on public policy grounds;
**66
Stratford
v.
International Assn. of Firefighters, AFL-CIO, Local 998
,
"We also have recognized, however, that the application of [the] doctrine has dramatic consequences for the party against whom it is applied, and that we should be careful that the effect of the doctrine does not work an injustice.... Thus, [t]he [doctrine] ... should be flexible and must give way when [its] mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies." (Citations omitted; internal quotation marks omitted.)
Powell
v.
Infinity Ins. Co.
,
"Because the operative effect of the principle of [res judicata] is to preclude relitigation of the original claim, it is crucial to define the dimensions of that original claim. The Restatement (Second) [of Judgments] provides, **67 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 *420 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 [that] 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 [that] 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....
"The Restatement (Second) of Judgments further explains, with respect to how far the witnesses or proof in the second action would tend to overlap the witnesses or proof relevant to the first, [i]f there is a substantial overlap, the second action should ordinarily be
**68
held precluded. But the opposite does not hold true; even when there is not a substantial overlap, the second action may be precluded if it stems from the same transaction or series. 1 Restatement (Second), [supra] § 24, comment (b) ...."
9
(Internal quotation marks omitted.)
Lighthouse Landings, Inc.
v.
Connecticut Light & Power Co.
,
III
THE PLAINTIFFS' CLAIMS
With these principles in mind, we turn to the merits of the plaintiffs' claims. Specifically, they contend that their damages claims-for a temporary taking, temporary nuisance and tortious interference with the plaintiffs' business expectancies-do not fall within the purview of the doctrine of res judicata. The plaintiffs' further contend that, even if principles of res judicata are generally applicable to their claims, we should exempt them from the preclusive effect of that doctrine because its underlying policies would not be served in the present case. We reject these contentions.
A
Temporary Taking
The plaintiffs first argue that res judicata does not apply to their temporary
*421
takings claim because it did
**69
not accrue, and, therefore, could not have been brought, until this court issued its opinion in
Wellswood I
. They claim that, until then, neither the extent of their damages nor the nature of the taking-whether temporary or permanent-was known. At oral argument before this court, however, counsel for the plaintiffs conceded that this contention is contrary to this court's decision in
Cumberland Farms, Inc.
v.
Groton
,
Thus, under controlling case law, the mere fact that the extent of the plaintiffs' damages was not immediately known at the time of the taking-because the plaintiffs did not know whether the taking would be temporary or permanent-does not operate to postpone the accrual of the plaintiffs' takings claim for res judicata purposes. This is so because, "[a]lthough the exact amount of the [plaintiffs'] damages might have remained uncertain when [they] commenced [the first] action, it nevertheless was abundantly clear that the plaintiff[s] had sustained some damages .... Pursuant to Connecticut's ripeness
*422
jurisprudence, as long as it is clear that [the plaintiffs have] suffered an injury sufficient to give rise to the cause of action alleged, a lack of certainty as to the precise scope of damages will not prevent the claim from being justiciable." (Emphasis omitted; footnote added.)
Chapman Lumber, Inc.
v.
Tager , supra,
Consistent with the foregoing principles, the Appellate Court, in
**72
Buck
v.
Berlin
,
In arguing to the contrary, the plaintiffs rely on two federal circuit court cases,
Corn
v.
Lauderdale Lakes
,
In
Corn
v.
Lauderdale Lakes
,
In a separate concurring opinion, Judge Edmondson, the author of the opinion in
Corn
, similarly acknowledged that Chief Judge Tjoflat's criticisms of
Corn
were valid but maintained that the decision was nevertheless correct on its facts and in light of the issue presented therein, which did not require a determination of when a claim accrues but, rather, when the applicable
*424
statute of limitations began to run.
The plaintiffs also rely on
Creppel
v.
United States
, supra,
B
Temporary Nuisance
We also do not agree with the plaintiffs that the road closure constituted a temporary private nuisance-or any other type of continuing or recurrent wrong-such that their damages claim falls within the exception to res judicata for continuing or recurrent wrongs, as set forth in § 26 (1) (e) of the Restatement (Second) of Judgments. Pursuant to that exception, in cases of "continuing or recurrent wrong[s]," a plaintiff may commence an action "from time to time for the damages incurred to the date of [that action]" without running afoul of res judicata's prohibition against seeking additional damages after the original action. 1 Restatement (Second), supra, § 26 (1) (e), p. 234. The continuing or
**77
recurrent wrongs exception accords with the principle that "[m]aterial operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first." 1 Restatement (Second), supra, § 24, comment (f), p. 203; see also
Marone
v.
Waterbury
,
The plaintiffs cite two cases for the proposition that the road closure constituted a continuing wrong such that every day that the road remained closed constituted a new injury. They first cite
Gordon
v.
Warren
,
**78
*426
Courts have not adopted the approach utilized in
Gordon
because that methodology conflates the continuation of unlawful acts with the continued ill effects of a single unlawful act, for example, the passage of an ordinance halting construction of an apartment complex. See, e.g.,
Trzebuckowski
v.
Cleveland
,
The plaintiffs also rely on
Creek
v.
Westhaven
,
The present case is readily distinguishable from Creek on many levels, most notably, for our purposes, because the plaintiffs do not allege that the town committed any additional unlawful acts during or subsequent to the injunction action. Rather, all of the plaintiffs' claims are predicated on a single wrongful act-the closing of Wellswood Road-that occurred prior to the injunction action.
Apart from
Gordon
, the plaintiffs have not identified a single case in which a regulation that merely restricted the manner in which land could be developed was deemed to constitute a continuing or recurrent wrong, much less a nuisance. We previously have explained that " '[a] private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land.' 4 Restatement (Second), Torts § 821D (1979) ; see also
Herbert
v.
Smyth
,
**81
Maykut
v.
Plasko
,
But, even if the road closure in the present case was properly characterized as a nuisance, the plaintiffs' private nuisance claim would still be barred by res judicata. As the Appellate Court explained in
Rickel
v.
Komaromi
,
In reliance on
Rickel
, the plaintiffs in the present case argue that the road closure was a temporary nuisance because the town could have abated it at any time by reopening the road. This argument, however, simply ignores the Appellate Court's analysis in
Rickel
and the readily distinguishable facts of that case. First, as the Appellate Court explained, not all nuisances that are technically abatable are considered temporary: "if [the nuisance] is one whose character is such that, from its nature and under the circumstances of its existence, it presumably will continue indefinitely," it will not be deemed abatable. (Internal quotation marks omitted.)
C
Tortious Interference with Business Expectancies
The plaintiffs further claim that the trial court improperly granted the town's motion for summary judgment on the ground of res judicata as to the plaintiffs' tortious interference with business expectancies claim because there is a genuine issue of material fact as to when that claim accrued. Specifically, the plaintiffs argue that, because an essential element of a claim for tortious interference is that the plaintiffs suffer an "actual loss"; (internal quotation marks omitted)
American Diamond Exchange, Inc.
v.
Alpert
,
This court previously has explained that, with respect to the "ascertainable loss" requirement of a claim under the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., "[t]he term loss necessarily encompasses a broader meaning than the term damage, and has been held synonymous with deprivation, detriment and injury.... To establish an ascertainable loss, a plaintiff is not required to prove actual damages
**84
of a specific dollar amount.... [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known." (Citations omitted; internal quotation marks omitted.)
Artie's Auto Body, Inc.
v.
Hartford Fire Ins. Co.
,
Applying this definition of loss to the facts of the present case, it is readily apparent that the plaintiffs suffered immediate and cognizable losses as a result of the closure of Wellswood Road, foremost among them the loss of access to their property. In support of their claim for a permanent injunction in Wellswood I , the plaintiffs presented expert testimony regarding the diminution in the value of the land that resulted from the town's decision to close the road. The trial court in the present case properly relied on these facts in concluding that the plaintiffs' tortious interference claim could have been brought in Wellswood I and, **85 accordingly, properly granted the town's motion for summary judgment with respect to that claim.
D
Whether the Plaintiffs' Claims Should Be Exempt from the Preclusive Effect of Res Judicata
The plaintiffs finally argue that the policies underlying the doctrine of res judicata, namely, judicial economy, minimization of repetitive litigation, prevention of inconsistent judgments and repose to parties, will not be served by the doctrine's application in the present case. In support of this contention, they maintain, first, that, even if they had brought all of their claims in Wellswood I , any damages awarded by the trial court would have been vacated by this court's reversal of the trial court's judgment, resulting in further proceedings upon remand for a determination of damages for a temporary taking. Thus, according to the plaintiffs, because a *430 new hearing on damages would have been required in Wellswood I in any event, allowing this case to proceed would not undermine the policy of judicial economy. The plaintiffs' argument fails to take into account the duration of the proceedings that have occurred in the present case.
To be sure, if the plaintiffs had sought damages in Wellswood I , further proceedings would have been required for a determination of just compensation for the period of time that the plaintiffs were deprived of the use of their land, namely, from the date of the road's closure until the date of its reopening following this court's decision in Wellswood I . 16 Those proceedings, **86 however, would have concluded seven years ago, thus conserving the considerable resources that the parties and the courts have expended on the present case to date-with no end in sight, if the case were to proceed-and providing repose to the town. Furthermore, as we previously indicated, the issue of damages was extensively litigated in Wellswood I , albeit in relation to the issue of irreparable harm. In light of this history, allowing the present case to go forward runs counter to several of the central tenets of res judicata, namely, the minimization of repetitive litigation, the promotion of judicial economy and repose to the parties. We therefore believe that the policies undergirding the doctrine of res judicata strongly support its application in the present case.
The plaintiffs argue nonetheless that it is "inequitable and illogical" for this court to conclude that they should have brought their takings claim in Wellswood I because, until this court issued its decision in that case, they had no way of knowing whether the taking would be temporary or permanent, and, therefore, they had no way of knowing the full extent of their damages. The plaintiffs contend, moreover, that applying the doctrine under the facts of this case "would in effect punish [them] for ... challenging the town's conduct in Wellswood I , rather than initially seeking damages." More specifically, the plaintiffs argue that, "[o]nce it became clear in 2005 that the town intended to close Wellswood Road, [they] had two mutually exclusive **87 remedies ... concede [their] property rights and seek damages for a permanent taking or ... challenge the town's actions and seek to have the road closure ... reversed. [They] could not be granted both remedies ...."
We have already explained that any uncertainty as to the nature of the takings claim-whether it was for a temporary or permanent taking-did not prevent the plaintiffs from bringing the claim in
Wellswood I
. See part III A of this opinion; see, e.g.,
Chapman Lumber, Inc.
v.
Tager , supra, 288 Conn. at 88,
*431
It is beyond argument, moreover, that a plaintiff may request two mutually exclusive forms of relief in a single action. See, e.g.,
Dreier
v.
Upjohn Co.
,
**88
We also disagree with the plaintiffs that, if they had brought all of their claims in
Wellswood I
and the trial court had denied their request for a permanent injunction but awarded them damages for a permanent taking, "a substantial question exists as to whether the Connecticut courts would have entertained [their] appellate challenge to the denial of the injunction ...." The plaintiffs cite no authority for this proposition, and we are aware of none. Indeed, it is axiomatic that a party may appeal from a final adverse determination of the trial court and that the award of some relief does not mean that a party is not aggrieved by the trial court's decision. See, e.g.,
In re Allison G.
,
In sum, we are not persuaded that the plaintiffs have identified a sufficiently compelling reason to exempt their claims from the preclusive effect of res judicata. We therefore reject their claim that the trial court improperly granted the town's motion for summary judgment.
The judgment is affirmed.
In this opinion the other justices concurred.
The town's Board of Selectmen and Jared Clark, the town manager, were also defendants in Wellswood I . In the present action, however, the town is the sole defendant.
The plaintiffs appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.
Because the trial court concluded that the plaintiffs' claims were barred by res judicata, it did not reach the town's claims that they were also barred by the applicable statutes of limitations or, in the case of the tortious interference claim, by governmental immunity. Because we also conclude that the plaintiffs' claims are barred by res judicata, we also do not reach the town's alternative grounds for affirmance.
For purposes of clarity, in this portion of the opinion, we refer to the town by name.
As this court repeatedly has stated, "[a] party seeking injunctive relief must demonstrate that: (1) it has no adequate remedy at law; (2) it will suffer irreparable harm absent an injunction; (3) it will likely prevail on the merits; and (4) the balance of equities tips in its favor."
Aqleh
v.
Cadlerock Joint Venture II, L.P.
,
In concluding that the plaintiffs had failed to prove a total and permanent loss of the right of access to public roads, the trial court stated: "In the present case, it remains to be seen whether proposals with alternative means of access would be acceptable to Columbia authorities, but the fact remains that access through Columbia would be possible in the future and the plaintiffs themselves embrace that model of planning. Because the plaintiffs have failed to establish that [the town's] actions would actually landlock their proposed development, they have not satisfied their burden of proving that they would suffer irreparable harm if an injunction is not granted. The fact that the plaintiffs will have to access their property through more [time consuming] and expensive means than they would if [the town] was forced to keep Wellswood Road open to their development does not mean that irreparable harm will result."
Wellswood Columbia, LLC
v.
Hebron
, supra,
"[I]n order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property. The interference may be either intentional ... or the result of the defendant's negligence." (Citation omitted.)
Pestey
v.
Cushman
,
Section 26 (1) (e) of the Restatement (Second) of Judgments provides: "When any of the following circumstances exists, the general rule of [res judicata] does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant: ... For reasons of substantive policy in a case involving a continuing or recurrent wrong, the plaintiff is given an option to [recover] once for the total harm, both past and prospective, or to [commence an action] from time to time for the damages incurred to the date of [the action], and chooses the latter course ...." 1 Restatement (Second), supra, § 26 (1) (e), p. 234.
Because the plaintiffs challenge the trial court's decision to grant the town's motion for summary judgment, our review of that decision is also guided by the general principles governing such motions. "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 light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing ... that the party is ... entitled to judgment as a matter of law.... Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Internal quotation marks omitted.)
Powell
v.
Infinity Ins. Co.
, supra,
See, e.g.,
Miller
v.
Westport
,
The court in
New Port Largo, Inc.
, did not overrule
Corn
, however, as the concurring opinions explained, inter alia, that only an en banc panel of that court can overrule a prior panel's holdings and that, in any event, it was unnecessary to review
Corn
en banc because the result would be the same regardless of what standard the court applied.
New Port Largo, Inc.
v.
Monroe County
,
See, e.g.,
Algonquin Heights Associates L.P.
v.
United States
,
We note that the opinion in
Creppel
cites a single case, namely,
First English Evangelical Lutheran Church
v.
Los Angeles
,
"The continuing violations doctrine is an equitable exception to a strict application of a statute of limitations where the conduct complained of consists of a pattern that has only become cognizable as illegal over time.... [W]hen a defendant's conduct is part of a continuing practice, an action is timely [as] long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred." (Citations omitted; internal quotation marks omitted.)
Foster
v.
Morris
,
"[T]he elements of a claim for tortious interference with business expectancies are: (1) a business relationship between the 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." (Internal quotation marks omitted.)
American Diamond Exchange, Inc.
v.
Alpert , supra,
Once a taking has been classified as either temporary or permanent, the trial court must determine just compensation for the period of the taking. See, e.g.,
First English Evangelical Lutheran Church
v.
Los Angeles
,
Reference
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- WELLSWOOD COLUMBIA, LLC, Et Al. v. TOWN OF HEBRON
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