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NIPMUC PROPERTIES, LLC, ET AL. v. CITY OF MERIDEN ET AL. (AC 32313)
DiPentima, C. J., and Lavine and Bear, Js. Argued May 20--officially released August 23, 2011

(Appeal from Superior Court, judicial district of New Haven at Meriden, M. Taylor, J. [motion to dismiss]; Matasavage, J. [motion for summary judgment; judgment].)

Dominic J. Aprile, for the appellants (plaintiffs). Deborah Leigh Moore, for the appellee (named defendant).

Opinion

BEAR, J. The plaintiffs, Nipmuc Properties, LLC (Nipmuc), and Summitwood Development, LLC (Summitwood), appeal from the summary judgment rendered by the trial court in favor of the defendant city of Meriden in their action to quiet title to a fiftytwo acre parcel of land1 owned by the defendant, in which Nipmuc asserts a leasehold interest.2 On appeal, the plaintiffs claim that the trial court improperly applied the doctrine of res judicata to bar their action. Because we agree with the defendant that the plaintiffs' claims in this litigation are barred by the doctrine of res judicata, we affirm the judgment of the trial court. The following facts and procedural history are relevant to the resolution of the plaintiffs' appeal. In 2002, Nipmuc instituted an action in the trial court (Nipmuc I), seeking a declaratory judgment as to the validity of an escrowed lease and, by way of relief, an order requiring the escrow agent to deliver the lease to Nipmuc.3 Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-02-0281664 (August 11, 2005) (M. Taylor, J.). That action arose out of a dispute over ownership and lease of a portion of a large tract of undeveloped property owned by Nipmuc, situated in Meriden and in the town of Berlin, which, in part, was the proposed site of an electric generation facility. Id. Nipmuc and Summitwood had entered into an arrangement under which Summitwood would purchase the entire tract of undeveloped property from Nipmuc, and Summitwood would have the exclusive right to purchase or lease back from the subsequent purchaser, who was to buy such property and complete the electric generation facility project, approximately thirty acres of the property. Id. Summitwood then entered into an agreement to sell the entire tract of undeveloped property to PDC-El Paso Meriden, LLC (PDC-El Paso). Id. The final version of the agreement between Summitwood and PDC-El Paso contained a provision under which PDC-El Paso would lease a fiftytwo acre parcel, all of which was located in Meriden, to Summitwood, acting on behalf of Nipmuc, instead of the thirty acre parcel, and the lease of the fifty-two acre parcel would be held in escrow until the electric generation facility project was approved by the Connecticut siting council (siting council). Id. After the sale to PDC-El Paso occurred, PDC-El Paso almost immediately sold the entire tract to Meriden Gas Turbines, LLC (Meriden Gas Turbines). Id. The siting council eventually issued to Meriden Gas Turbines the necessary permits for the construction of the electric generation facility, but it rejected the release from escrow of the lease to Summitwood and directed that the fifty-two acre parcel be donated to Meriden. Id.

After a trial to the court, the Nipmuc I court rendered a decision in favor of the defendants in that action, including the present defendant.4 Id. In ruling for the Nipmuc I defendants, the court found that approval of the underlying lease arrangement by the siting council was a condition precedent to delivery of the lease from escrow and that such condition had not been met. Id. On appeal, this court affirmed the judgment of the trial court, holding that ``[a] thorough review of the record supports the court's conclusion that approval by the siting council was a condition precedent to the delivery of the lease . . . .'' Nipmuc Properties, LLC v. PDCEl Paso Meriden, LLC, 103 Conn. App. 90, 100, 927 A.2d 978, cert. denied, 284 Conn. 932, 934 A.2d 247 (2007). Following the trial court's judgment in Nipmuc I, the defendant acquired title to the fifty-two acre parcel, inter alia, from Meriden Gas Turbines.5 In November, 2007, the plaintiffs commenced the present action, the third state court action brought by Nipmuc and the second brought by Summitwood concerning the fiftytwo acre parcel, alleging that the defendant had prevented Nipmuc from taking possession of that parcel.6 In the second count of the present complaint, the plaintiffs seek to require the defendant to perform its obligations under the lease.7 In the third count of the complaint, the plaintiffs seek to quiet title to the fiftytwo acre parcel. On January 25, 2008, the defendant filed an answer and special defenses, including the defense of res judicata. The defendant then filed a motion for summary judgment, arguing, in part, that counts two and three of the complaint were barred by virtue of the judgment in Nipmuc I. In support of its motion for summary judgment, the defendant submitted an affidavit attesting that the situation as found by the court in Nipmuc I continued to exist, i.e., the lease remains in escrow and the condition precedent to its release has not occurred. On May 12, 2010, the court granted the motion for summary judgment, and this appeal followed. On appeal, the plaintiffs argue that the court's application of the doctrine of res judicata to the present matter was inappropriate because their claims do not seek to vindicate the same interests at issue in Nipmuc I. Specifically, the plaintiffs argue that in the present matter they assert rights to a leasehold interest in the fifty-two acre parcel, whereas in Nipmuc I, Nipmuc sought a judgment only with respect to the duties of the escrow agent pursuant to the escrow agreement. The plaintiffs further argue that they were unable to raise the claims at issue in the present matter in the Nipmuc I action because the conduct of which they presently complain, namely, the defendant's failure to honor the plaintiffs' leasehold interest, did not accrue until title to the fifty-two acre parcel was transferred to the defendant after judgment was rendered in Nip-

muc I. In addition, the plaintiffs argue that the trial court's grant of summary judgment was inappropriate because there are genuine issues of material fact as to the intent of the parties to the lease agreement. Specifically, the plaintiffs argue that, regardless of whether the lease document was delivered from escrow, an issue of fact exists as to whether the parties to the lease agreement intended for the plaintiffs to have rights to occupy and use the fifty-two acre parcel absent their possession of the original lease document. We are not persuaded. As a preliminary matter, we set forth the applicable standard of review. ``Practice Book

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