Zeller v. Consolini

667 A.2d 64, 235 Conn. 417, 1995 Conn. LEXIS 390, 1995 WL 687125
CourtSupreme Court of Connecticut
DecidedNovember 21, 1995
Docket15099
StatusPublished
Cited by45 cases

This text of 667 A.2d 64 (Zeller v. Consolini) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zeller v. Consolini, 667 A.2d 64, 235 Conn. 417, 1995 Conn. LEXIS 390, 1995 WL 687125 (Colo. 1995).

Opinion

BORDEN, J.

The plaintiffs appeal1 from the judgment of the trial court in favor of the defendants, following the granting of the defendants’ motion to strike the plaintiffs’ amended complaint. In the first and third counts of the complaint,2 the plaintiffs sought damages for tortious interference with a business relationship and vexatious litigation, respectively.3 The plaintiffs [419]*419claim that the trial court improperly concluded both that they had not been parties to certain underlying administrative proceedings and that, therefore, for purposes of the torts of interference with a business relationship and vexatious litigation, a termination of those proceedings in the plaintiffs’ favor could not have occurred. We agree with the plaintiffs, and reverse the judgment of the trial court.

The plaintiffs’ amended complaint alleged, and would permit the proof of, the following facts, which we must take as true for purposes of evaluating the propriety of the trial court’s ruling on the defendants’ motion to strike. Mingachos v. CBS, Inc., 196 Conn. 91, 108-109, 491 A.2d 368 (1985). The plaintiffs are A. James Zeller [420]*420and Torringford Commercial Associates Limited Partnership, a partnership in which Zeller is the general partner and owns the majority interest.4 Zeller is the owner of thirty-six acres of land located at Route 183 and Route 202 in Torrington, on which the plaintiffs propose to build a shopping mall. The defendants5 are members of an unincorporated association known as Neighbors Against the Mall.

In December, 1986, the plaintiffs applied to the Torrington planning and zoning commission for a zone change from R-15 (residential) to CIR (restricted commercial and industrial) of twenty-eight of the thirty-six acres. The planning and zoning commission granted that application in March, 1987. Certain defendants appealed from the decision of the planning and zoning commission to the Superior Court, Pickett, J., which dismissed their appeal in August, 1988. The defendants sought certification to appeal further to the Appellate Court, which that court denied.

In March, 1988, the plaintiffs applied to the planning and zoning commission for a zone change of forty-nine and one-half acres of land at Routes 183 and 202, including the twenty-eight acres that had been previously rezoned in 1987. The purpose of this application was to expand the restricted commercial and industrial [421]*421zone from twenty-eight acres to forty-nine and one-half acres. In August, 1988, the planning and zoning commission approved this zone change, together with a development plan filed by the plaintiffs for a shopping mall at the site. Certain defendants appealed from that action to the Superior Court, Reifberg, J., which dismissed their appeal in September, 1990. The defendants sought certification to appeal further to the Appellate Court, which that court denied.

In February, 1990, the Torrington inland wetlands commission granted a permit to the plaintiffs in connection with the development of the mall. Certain defendants appealed from that decision to the Superior Court, Susco, J., which dismissed their appeal in July, 1991. Following the grant of the defendants’ certification by the Appellate Court, that court, in September, 1992, affirmed the judgment of the Superior Court dismissing the defendants’ appeal from the decision of the inland wetlands commission.

Meanwhile, in February, 1992, the defendants filed an application with the planning and zoning commission for a zone change from restricted commercial and industrial to industrial park for Zeller’s property, the same property as was the subject of the previous appeals. Pursuant to General Statutes § 8-3 (b),6 Zeller filed a protest against the defendants’ request for a [422]*422zone change of his property. The planning and zoning commission denied the defendants’ application, and the defendants appealed from that denial to the Superior Court.

In July, 1992, pursuant to Practice Book § 99,7 Zeller moved to intervene as a matter of right as a party defendant in the appeal, and the court granted that motion in September, 1992. In March, 1993, the trial court, Dranginis, J., dismissed the defendants’ appeal.

In the amended complaint in this case, the plaintiffs also alleged that, in June, 1991, prior to the defendants’ application to rezone Zeller’s property, the plaintiffs had contracted to sell the property to Conroy Development Company (Conroy) of New York for $4,300,000, conditioned on the plaintiffs’ ability to deliver to Conroy a final, nonappealable zoning certificate and zoning approvals regarding the property. The defendants knew of this contract from its inception, and had filed the application for zone change and the subsequent appeal with that knowledge.

The plaintiffs’ complaint farther alleged that, given all of these facts and circumstances, the defendants’ application for a zone change of Zeller’s property, and their subsequent appeal from the denial of that application, were initiated in bad faith and with malice, with the intent to harass and intimidate the plaintiffs, and to interfere with the plaintiffs’ contract with Conroy. The complaint also alleged that these actions by the defendants culminated in proceedings that ended in the plaintiffs’ favor, and were brought without probable [423]*423cause and with a malicious intent unjustly to vex and trouble the plaintiffs.

The trial court, Pickett, J., granted the defendants’ motion to strike, on the ground that Zeller was not a “party” to the zoning application proceedings or to the subsequent judicial appeal therefrom. The trial court noted that it was necessary for the plaintiffs to allege that the underlying proceedings that formed the basis of the plaintiffs’ claims had terminated in their favor. In the trial court’s view, because the plaintiffs had not been parties to the underlying proceedings, for the purposes of the torts alleged, those proceedings could not, as a matter of law, have terminated in their favor.

The trial court reasoned that the zoning proceeding was solely between the defendants and the planning and zoning commission, and that Zeller had entered those proceedings of his own volition. With respect to the judicial appeal, the court reasoned similarly that Zeller had become a party through his own motion to intervene. In the trial court’s view, the fact that Zeller’s participation in both the underlying administrative proceedings and the subsequent judicial proceedings had come about through his own efforts, rather than by virtue of action by the defendants against the plaintiffs, compelled the conclusion that the plaintiffs had not been parties to those underlying proceedings and that, as a consequence, “for purposes of stating a claim for vexatious litigation, a termination in the plaintiffs’ favor could not have occurred.” The trial court rendered judgment for the defendants, and this appeal followed.

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Bluebook (online)
667 A.2d 64, 235 Conn. 417, 1995 Conn. LEXIS 390, 1995 WL 687125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zeller-v-consolini-conn-1995.