Simons v. Town of Sherman Board of Selectmen

• Decision Date: 01 March 2019
• Docket Number: DBDCV175010844S
• Court: Connecticut Superior Court
• Parties: Sam J. SIMONS v. TOWN OF SHERMAN BOARD OF SELECTMEN

Sam J. SIMONS v. TOWN OF SHERMAN BOARD OF SELECTMEN

No. DBDCV175010844S

Superior Court of Connecticut, Judicial District of Danbury, Danbury

March 1, 2019

UNPUBLISHED OPINION

OPINION

Kowalski, J.

The issues before the court are whether the defendant, Connie Wilson, is entitled to summary judgment as to all pending claims against her asserted by the plaintiffs, Sam and Angela Simons, sounding in fraudulent inducement, breach of contract, malicious prosecution and fraud, and whether the municipal defendants are entitled to summary judgment on or dismissal of count ten of the second amended complaint seeking a declaratory judgment, on the basis of res judicata collateral estoppel and lack of standing.Due to the lack of a genuine issue of material fact with respect to counts one three, five, six and seven against Wilson, her motion for summary judgment(# 192.00) is granted, and count eight against Wilson is dismissed for lack of subject matter jurisdiction.The municipal defendants’ motions for summary judgment(# 181.00) is granted, because the plaintiffs’ claims are barred by the doctrine of res judicata.

I.BACKGROUND

This litigation is the latest chapter in a neighbor dispute between the plaintiffs, Sam and Angela Simons, who instituted this action against their next-door neighbor, the defendant, Connie Wilson("Wilson") and the Town of Sherman Board of Selectmen, Town of Sherman Inland Wetlands and Watercourses Commission, Town of Sherman Planning and Zoning Commission, Town of Sherman Zoning Enforcement Officer, Town of Sherman Building Inspector, and the Town of Sherman("Municipal Defendants"), arising out of a boundary dispute pertaining to a plot of land located within an area known as the Glen View Subdivision in Sherman, Connecticut.

The plaintiffs allege the following facts in the second amended complaint (# 135.00).Within the Glen View subdivision, there are four parcels of land (# 135.00, p. 4).The first parcel involved in this dispute is referred to as "Lot 1" and is owned by the plaintiffs.(Id.)The second parcel is referred to as "Glen View Drive" and is owned by the Town of Sherman.(Id.)The third and fourth parcels are referred to as the "Reserve Lot" and "Lot 2," respectively, and are owned by Wilson.(Id.)

The plaintiffs allege that they are the owners of the driveway to Lot 1 which was constructed on and runs across portions of Glen View Drive, the Reserve Lot, and Lot 1.(Id., p. 5.)The driveway was constructed pursuant to a properly issued municipal driveway permit, as referred to in a 2014 settlement agreement ("2014 Settlement Agreement") that resolved a prior civil action, captioned Angela M. Simons v. Town of Sherman, DocketNo. DBD-CV-12-5009055-S, that was commenced by the plaintiffs against Wilson and the Town of Sherman("Simons I ").The plaintiffs further allege that the defendants, Planning and Zoning Commission and the Wetlands Commission approved the building permits for the construction of said driveway, which entitles them to uses set forth in General Statutes § 22a-40 on portions of Glen View Drive, the Reserve Lot and Lot 1.(Id., pp. 7-8.)

The plaintiffs further allege that from October 31, 2011 until the execution of the 2014 Settlement Agreement, the defendants uniformly denied the existence of the foregoing permits and approvals, denying that the plaintiffs had any rights whatsoever in the Reserve Lot, thus restricting the plaintiffs’ usage of the land.(Id., p. 9.)These denials were allegedly made during administrative, criminal enforcement trespass proceedings and municipal administrative land use and enforcement matters, and caused the plaintiff, Sam Simons, to be prosecuted for criminal trespass for trimming grass on the driveway in dispute.(Id.)The plaintiffs allege that Wilson voluntarily testified at the May 19, 2014 criminal trespass trial that Sam Simons"had no rights to be on any portion of the Reserve [Lot] for any reason whatsoever prior to February 27, 2014" and that at the time Wilson so testified, she knew or should have known that Sam Simons was permitted to conduct certain activities in the Reserve Lot due to prior permits referred to in the 2014 Settlement Agreement.(Id., p. 15.)

Criminal proceedings and two civil actions have preceded the present action.On May 12, 2012, Sam Simons was arrested for criminal trespass in the first degree and assault in the third degree, after allegedly trimming grass on the portion of the driveway located on the Reserve Lot and allegedly assaulting Wilson’s spouse (# 194.00, Exhibit I).As a condition of release prior to trial, Sam Simons was ordered to stay off the Reserve Lot and to have no contact with Wilson or her spouse.^[1] The resulting prosecution in Geographical Area 3 in Danbury bore docket number D03D-CR12-0144052-S.On June 26, 2012, the court in Simons I issued an order permitting the plaintiffs to cross the Reserve Lot only for the purpose of using their driveway to access their home on Lot 1.Ultimately, the state filed a substitute information charging Sam Simons with simple trespass and creating a public disturbance, both of which are infractions (# 194.00, Exhibit A).After trial, at which Wilson testified on May 19, 2014, Sam Simons was found not guilty of simple trespass but found guilty of creating a public disturbance.

Simons I was filed on May 22, 2012.In that action, the plaintiffs in the present action brought suit against Wilson and the Town of Sherman, asserting claims related to the driveway, including claims sounding in implied easement, prescriptive easement and adverse possession, and misrepresentation claims related to the May 12, 2012 arrest of Sam Simons.In Simons I, the plaintiffs sought both monetary and declaratory relief.On February 27, 2014, all parties to Simons I entered into a Stipulation and Settlement Agreement ("2014 Settlement Agreement")(Complaint, Exhibit A).Before the acceptance of the 2014 Settlement Agreement by the court, Sheedy, J., and the entry of judgment thereon, the plaintiffs were thoroughly canvassed by the court(# 182.00, pp. 23-25).The following portions of the 2014 Settlement Agreement are relevant to the present action:

(1)Section III.A., "EASEMENT BY WILSON TO PLAINTIFFS" which provides, in part, that the plaintiffs and Wilson have entered into an Easement Agreement granting the plaintiffs, their heirs, successors and assigns, certain rights to the easement areas described in a map attached to the 2014 Settlement Agreement, which was subsequently recorded in the land records of the Town of Sherman.

(2)Section III.C., "DRIVEWAY," which provides, in part, that [t]he driveway constructed by or for the owner(s) of [the plaintiffs’ property] in connection with building permit # 1262 was pursuant to a properly issued driveway permit.

(3)Section III.D., "OTHER OUTSTANDING LAND USE ITEMS," which provides, in part, that "Sherman reserves the right to enforce the requirements of applicable codes, regulations and ordinances, including the Planning & Zoning Regulations, Inland Wetland Regulations, Building Code and other rules, regulations and ordinances of the Town that may be applicable, and in particular to take any and all action as may be necessary to abate a violation of same.

(4)Section III.E., "RELEASE OF ALL CLAIMS," which provides, in part, that "the Plaintiffs release and discharge Wilson and the Town of Sherman, including all of its departments, its affiliated divisions and its organizations of any kind ... including all present, past or future appointed or elected officials, boards ... from any and all past, present or future claims, demands, obligations, actions, causes of action, rights, damages, costs, losses or services, expenses and compensation, of any nature whatsoever ... whether based on a tort, contract, indemnification, common-law, statutory or other theory of recovery, which the Plaintiffs now have, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way be related to or grow out of the claims set forth in Angela M. Simons et al. v. Connie T. Wilson et al., Docket No: DBD CV125009055 S ...

Likewise, Wilson releases and forever discharges the Plaintiffs of and from any and all suits, causes of action, complaints, charge, obligations, demands, debts or claims of any kind, whether in law or in equity, direct or indirect, which Wilson now has or hereafter can, shall or may have for, upon, by reason of, on account of, or may in any way be related to or grow out of the claims set forth in Angela M. Simons et al. v. Connie T. Wilson et al., Docket No: DBD CV125009055 S ...

The right to enforce the terms and conditions of this Stipulation and Settlement Agreement is specifically reserved and excluded from the released claims.

(5)Section IV, "GENERAL PROVISIONS," which provides, in part, that "[j]urisdiction is retained for the purposes of enabling any party to the Stipulation and Settlement Agreement to apply to the Court for such further orders and directions as may be necessary and appropriate for the construction and carrying out of the Stipulation and Settlement Agreement and for enforcement of compliance herewith ...

(Complaint, Exhibit A, pp. 3-8.)

On January 15, 2016, nearly two years after the entry of judgment in Simons I, the plaintiffs filed a motion to open judgment, seeking "an order delineating scope of building permit # 1262 dated Oct 16, 1976 and driveway permit identified in Paragraph III.C. of the [2014 Settlement Agreement]"(Simons I, # 224.00).The motion to open was denied by the court, Shaban, J., on February 1 2016, with the court finding that "[n]o good or compelling reason has been provided to the court which would lead it to the conclusion that the judgment...