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SUMMITWOOD DEVELOPMENT, LLC, ET AL. v. KENNETH ROBERTS, SR., ET AL. (AC 32341)
DiPentima, C. J., and Lavine and Bear, Js. Argued May 20--officially released August 23, 2011

(Appeal from Superior Court, judicial district of Waterbury, Complex Litigation Docket, Stevens, J.) Dominic J. Aprile, for the appellants (plaintiffs). Bryan L. LeClerc, with whom was Michael P. Burdo, for the appellees (defendants).

Opinion

BEAR, J. The plaintiffs, Summitwood Development, LLC (Summitwood), and Nipmuc Properties, LLC (Nipmuc), initiated this action for damages and reformation of a sale and leaseback agreement, and they appeal from the summary judgment rendered by the trial court in favor of the defendants, Kenneth Roberts, Sr., Michael Armitage, Thomas Atkins, John DeTore and PDC-El Paso Meriden, LLC (PDC-El Paso).1 The plaintiffs claim that the trial court erred in (1) overruling their objection to the defendants' request to amend their answer and special defenses and (2) applying the doctrine of res judicata to bar the present action. 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 Superior 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.2 Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-02-0281664-S (August 11, 2005). That action arose out of a dispute relating to a lease between PDC-El Paso and Summitwood, acting on behalf of Nipmuc, of an approximately fifty-two acre parcel, which comprised a portion of a much larger tract of undeveloped property owned by Nipmuc situated in the city of Meriden and the town of Berlin.3 Id. PDC-El Paso had sought permission from the Connecticut siting council (siting council) to build an electric generation facility on a portion of the property separate from the fifty-two acre parcel. Id. In furtherance of the PDC-El Paso proposal, Nipmuc and Summitwood entered into an arrangement under which the latter would have the exclusive right to purchase the entire undeveloped property. Id. Summitwood then entered into an agreement to sell the property to PDCEl Paso. Id. The original version of the agreement contained a provision for either a sale or leaseback of approximately thirty acres by PDC-El Paso to Summitwood. The final version of the agreement contained a provision under which PDC-El Paso would lease the fifty-two acre parcel, all of which was located in Meriden, to Summitwood. The lease of the fifty-two acre parcel would be held in escrow until the electric generation facility project was approved by the 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.

In May, 2004, while Nipmuc I was pending, the plaintiffs commenced the present action, seeking damages and reformation of the sale and lease agreement, based on the defendants' alleged tortious and fraudulent conduct. In their complaint, the plaintiffs alleged the following additional facts. The individual defendants were agents or authorized representatives of PDC-El Paso. At various times during the course of negotiating the sale and lease agreement with Summitwood, Armitage, Roberts and Atkins represented that PDC-El Paso would deed or lease back to Summitwood, or its designee, Nipmuc, a portion of the undeveloped property and that such arrangement would be effective upon the siting council's approval of the electric generation facility plans. Roberts and Atkins further represented to Summitwood that Roberts would serve as Summitwood's sole liaison to communicate with both PDCEl Paso and the siting council about the lease of the fifty-two acre parcel. Roberts, Atkins and Armitage also gave assurances to the plaintiffs that the siting council had been apprised of the plaintiffs' leasehold interest in the fifty-two acre parcel. The defendants forwarded a letter to the siting council, however, portraying the plaintiffs' rights to the fifty-two acre parcel in a false and disparaging manner. The plaintiffs alleged that these actions represented a fraudulent scheme intended to benefit the defendants at the expense of the plaintiffs' interests and that the defendants' actions have prevented the plaintiffs from receiving the benefit of their bargain.4 In December, 2004, while evidence was being presented in the Nipmuc I action, the defendants filed an answer and special defenses in the present matter. In their special defenses, the defendants did not allege the doctrine of res judicata. In August, 2005, judgment was rendered in Nipmuc I in favor of the defendants in that action, including PDC-El Paso.5 The Nipmuc I court determined that siting council approval of the lease, which had not occurred, was a condition precedent to the delivery of the lease from escrow. Nipmuc appealed, and this court affirmed the judgment. Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, 103 Conn. App. 90, 927 A.2d 978, cert. denied, 284 Conn. 932, 934 A.2d 247 (2007). On November 13, 2009, the defendants filed a motion for summary judgment in the present matter on the ground that this litigation is barred by the judgment in Nipmuc I. Thereafter, on December 4, 2009, the defendants filed a request to amend their answer and special defenses to add the defense of res judicata. On December 21, 2009, the plaintiffs filed an objection to the request to amend, and, on January 8, 2010, the plaintiffs filed an objection to the motion for summary judgment.6 On February 1, 2010, the court heard oral argument on the motion for summary judgment, and the defendants'

request to amend their answer and special defenses was granted over the plaintiffs' objection at that hearing. On May 13, 2010, the court granted summary judgment in favor of the defendants. This appeal followed. I On appeal, the plaintiffs claim that the trial court erred in overruling their objection to the defendants' request to amend their answer and special defenses to add the defense of res judicata. Specifically, the plaintiffs argue that the defendants waived their right to assert res judicata by failing to include that defense in their original answer and special defenses filed on December 13, 2004. The plaintiffs also point out that the defendants waited approximately four years and three months from the rendering of judgment in Nipmuc I before raising the issue of res judicata in the present matter. As an initial matter, the plaintiffs argue that the appropriate standard of review to apply to the trial court's decision granting the defendants' request to amend their answer and special defenses is plenary review. In support of their contention, the plaintiffs rely on our decision in DiPietro v. Farmington Sports Arena, LLC, 123 Conn. App. 583, 2 A.3d 963, cert. granted, 299 Conn. 920, 10 A.3d 1053 (2010). 7 The defendants respond that the proper standard of review of a trial court's decision on a request to amend a pleading is the abuse of discretion standard. We agree with the defendants. Generally, ``[a] motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court.'' (Internal quotation marks omitted.) Canterbury v. Deojay, 114 Conn. App. 695, 705, 971 A.2d 70 (2009). Here, the plaintiffs contend that their claim should be reviewed under the plenary standard because the trial court ruled on the plaintiffs' objection to the request to amend during the course of summary judgment proceedings. The plaintiffs' reliance on this court's decision in DiPietro is misplaced. DiPietro considered the proper scope of review of a trial court's determination of the admissibility of expert witness testimony in the course of a summary judgment proceeding. There, this court determined that plenary review was appropriate because ``it would be inconsistent with [the] plenary scope of review to subject a particular subset of [a] trial court's determinations in [summary judgment] proceedings, namely, the admissibility of an expert's opinion, to the highly deferential abuse of discretion scope of appellate review.'' DiPietro v. Farmington Sports Arena, LLC, supra, 123 Conn. App. 611. Although the court's ruling on the request to amend

in the present matter occurred during the proceedings on the motion for summary judgment, the court's decision to grant the amendment was not dependent on the existence of those proceedings. Furthermore, although the court's grant of permission to amend the pleadings enabled the summary judgment motion to be considered by the court because it permitted the defendants to move for judgment on the ground of res judicata, the existence of the summary judgment proceedings did not affect the defendants' usual burden of proof with respect to the granting of an amendment to their special defenses. Accordingly, we will review the plaintiffs' claim under the abuse of discretion standard. ``It is well settled that whether to allow an amendment to the pleadings rests within the discretion of the trial court.'' Miller v. Fishman, 102 Conn. App. 286, 291, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008). ``The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial. . . . The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case.'' (Citation omitted; internal quotation marks omitted.) Canterbury v. Deojay, supra, 114 Conn. App. 705. Here, the plaintiffs have failed to demonstrate prejudice resulting from the defendants' delay in raising their defense of res judicata. ``The law is well-settled that belated amendments to the pleadings rest in the sound discretion of the trial court.'' Conference Center Ltd. v. TRC, 189 Conn. 212, 216, 455 A.2d 857 (1983). This discretion may be exercised before, during or after trial. Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 575

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