Procurement, LLC v. Ahuja ( 2020 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
PROCUREMENT, LLC v. GURPREET AHUJA ET AL.
(AC 41680)
DiPentima, C. J., and Keller and Harper, Js.
Syllabus
The plaintiff, P Co., a real estate development company, sought damages
from the defendant A, a property owner, and the defendant H Co., a
real estate holding company, for vexatious litigation in connection with
P Co.’s plans to construct a mixed use development project in Stamford.
P Co. alleged that the defendants sought to impede its development
project through A’s opposition to three of P Co.’s zoning applications.
The trial court granted the defendants’ motion for summary judgment,
determining that A’s zoning appeals were protected activity pursuant
to the Noerr-Pennington doctrine, which shields individuals from liabil-
ity for petitioning a government entity for redress in order to advocate
their causes regarding business and economic interests. On appeal, P
Co. claimed, inter alia, that the trial court erred in concluding that A’s
appeals were not objectively baseless and, therefore, that the sham
exception to the Noerr-Pennington doctrine, which does not protect
activity brought with no reasonable expectation of obtaining a favorable
ruling, was not applicable. Held:
1. The trial court properly determined that there was no genuine issue of
material fact and that A’s legal actions in contesting various changes
to P Co.’s zoning applications did not qualify for the sham exception
to the Noerr-Pennington doctrine; contrary to the plaintiff’s claim, A’s
appeals were not objectively baseless and did not become baseless
merely because they failed; a reasonable litigant in A’s position could
have concluded that P. Co.’s failure to comply with the Stamford zoning
regulations resulted in an incomplete application, and that the zoning
board’s failure to post notice of a hearing continuation could have been
grounds for an appeal, and, once the trial court determined that at
least one claim in an action had objective merit, it was not required
to determine whether additional claims in the same action were not
objectively baseless.
2. P Co. could not prevail on its claim that the trial court misinterpreted
the sham exception to the Noerr-Pennington doctrine in applying the
two part analysis in Professional Real Estate Investors, Inc. v. Columbia
Pictures Industries, Inc. (508 U.S. 60), in which a trial court may exam-
ine a litigant’s subjective motivations only if the challenged litigation
was objectively meritless; although P Co. claimed that A’s petitioning
activity consisted of several legal proceedings rather than a single pro-
ceeding, and that the trial court should have applied the holistic analysis
in California Motor Transport Co. v. Trucking Unlimited (404 U.S.
508), in which a court may analyze a litigant’s subjective motivations
in determining whether A’s appeals were not baseless, the two part
analysis was appropriate in the present case because there were only
three actions alleged to have been baseless, and the holistic analysis
argued by P Co. has only been applied in cases concerning proceedings
that far outnumbered those in the present case.
Argued November 14, 2019—officially released June 2, 2020
Procedural History
Action seeking to recover damages for, inter alia,
vexatious litigation, and for other relief, brought to the
Superior Court in the judicial district of Fairfield, where
the court, Arnold, J., granted the plaintiff’s motion to
substitute Nicholas Ahuja, executor of the estate of
Gurpreet Ahuja, for the named defendant; subsequently,
the trial court, Ecker, J., granted in part the defendants’
motion for summary judgment and rendered judgment
thereon; thereafter, the plaintiff withdrew the remaining
count of the complaint and appealed to this court.
Affirmed.
Richard C. Robinson, with whom was Jonathan A.
Kaplan, for the appellant (plaintiff).
Peter Milano, for the appellees (substitute defendant
et al.).
Opinion
KELLER, J. The plaintiff, Procurement, LLC, brings
this action sounding in vexatious litigation, abuse of
process, violation of the Connecticut Unfair Trade Prac-
tices Act (CUTPA), General Statutes § 42a-110g et seq.,
aiding and abetting, and tortious interference with con-
tractual and business relations, and seeking damages
from the defendants Gurpreet Ahuja1 and Ahuja Hold-
ings, LLC (Holdings), on the ground that they generally
sought to impede the plaintiff’s development of a mixed
use development project. The plaintiff appeals from the
judgment of the trial court rendered after the granting
of the defendants’ motion for summary judgment. On
appeal, the plaintiff claims that (1) the trial court erred
in concluding as a matter of law that Ahuja’s zoning
appeals with regard to the plaintiff’s proposed develop-
ment plan were not objectively baseless and, therefore,
the sham exception to the Noerr-Pennington doctrine
was not applicable, and (2) the court misinterpreted the
sham exception under the Noerr-Pennington doctrine.2
We affirm the judgment of the trial court.
The following procedural history, as set forth by the
trial court in its thorough, well reasoned memorandum
of decision, is relevant to this appeal. This appeal and
the underlying litigation arose ‘‘out of a series of interre-
lated administrative and judicial proceedings . . .
involving [the plaintiff’s development project].’’ The
plaintiff’s development plan involved ‘‘the construction
of a large childcare center and approximately twenty
residential units on High Ridge Road in Stamford.’’ ‘‘For
ease of reference, the court . . . describe[d] the alleg-
edly wrongful activity at issue . . . [in] three distinct,
though related, administrative and judicial proceedings,
each involving [the] defendants’ opposition to a particu-
lar zoning application made by [the] plaintiff in connec-
tion with its High Ridge Road project. . . .
‘‘The initial round of administrative and judicial pro-
ceedings arose out of a set of applications submitted
by [the plaintiff] to the Stamford Zoning Board (board)
in April, 2010. These included an application for special
exception approval, and an application for approval of
site and architectural plans, each of which related to
[the plaintiff’s] intention to develop a two-story building
consisting of a day care center and nine residential
units on the subject property ([collectively referred to
as the first application]). The board held hearings on
the first application in December, 2010, and voted on
January 10, 2011, to deny the application for a special
exception. [The plaintiff] timely appealed the denial to
the Superior Court.
‘‘Ahuja’s formal involvement in the first application
did not come until over a year later, on February 22,
2012, when she filed a motion to intervene in the appeal
pending in the Superior Court. The motion described
her status as a statutorily aggrieved landowner pursuant
to General Statutes § 8-8, based on the fact that she
owned property within 100 feet of the subject property.
Ahuja alleged that her participation as an intervenor
had become necessary because there was no longer
true adversity between [the] plaintiff . . . and [the
board] due to the board’s recent action on a second,
modified zoning application [for a special permit] made
by [the plaintiff], which the board had approved while
the appeal of the decision in the first application was
pending. . . . Ahuja argued that [the plaintiff] and the
board were now essentially on the same side, and would
settle the appeal unless the court permitted her to inter-
vene in support of the board’s denial of the special
exception sought in the first application.
‘‘Ahuja’s motion to intervene was denied by the court
(Adams, J.), on May 30, 2012. . . . The [court, denying
intervention,] weighed the various factors relevant to
permissive intervention and determined that a majority
of those considerations counseled denial of Ahuja’s
motion to intervene. The existence of Ahuja’s then
pending appeal from the board’s approval of the second
application . . . gave [the court] pause, because it was
possible that intervention might not lead to more effi-
cient proceedings in light of that appeal . . . but [the
court] ultimately chose to exercise [its] discretion to
deny intervention. To ensure that Ahuja’s interests
would be protected, [the court] ordered the parties to
provide three weeks’ notice to Ahuja in the event of a
settlement [of the plaintiff’s appeal], which would allow
her to participate in any hearing for judicial approval
of the settlement under . . . § 8-8 (n). There is no sug-
gestion anywhere in the [court’s decision denying inter-
vention], express or implied, that Ahuja’s motion to
intervene was frivolous, vexatious or otherwise objec-
tively unreasonable.
‘‘Ahuja sought appellate review of [the court’s] inter-
vention order by filing a timely petition for certification
pursuant to . . . § 8-8 (o) and Practice Book § 81-1.
Certification was granted by the Appellate Court on
October 24, 2012. A game of litigation chess followed.
[The plaintiff] (which had opposed Ahuja’s motion to
intervene) filed a motion in the Superior Court case to
implead Ahuja as a party defendant on May 25, 2013.
Ahuja (who had sought to intervene) initially objected
to [the plaintiff’s] motion to implead. The board also
objected. [The court, Berger, J.] granted the motion to
implead on August 23, 2013. Ahuja withdrew [her]
appeal in the Appellate Court on October 4, 2013, and
the Superior Court case proceeded on the merits. Ahu-
ja’s trial brief, filed on October 15, 2013, adopted the
board’s trial brief in its entirety and added less than
two pages of additional argument. [The court] held a
merits hearing on December 6, 2013, and issued a deci-
sion on February 14, 2014. . . . [The court] found that
the board’s decision denying a special exception was
not supported by substantial evidence, and therefore
sustained [the plaintiff’s] appeal in connection with the
first application.
‘‘In late July, 2011, after the board’s denial of the first
application and while the appeal of that denial was
pending in the Superior Court, [the plaintiff] filed a
second application for a special permit with the board.
The second application sought to develop a day care
center and twenty-two residential units at the subject
property, an increase from the nine units proposed in
the first application. A series of five public hearings on
the second application were held by the board in the
latter part of 2011. . . . The board voted to approve
the second application on December 12, 2011.
‘‘Ahuja appealed the board’s decision. . . . The mat-
ter was fully briefed and argued in the Superior Court.
On January 4, 2013, [the court, Berger, J.] issued a
memorandum of decision denying the appeal . . . .
Ahuja filed a petition for certification from that deci-
sion, which was denied by the Appellate Court on July
24, 2013 . . . .
‘‘On September 17, 2014, [the plaintiff] filed [a third]
zoning application, which requested modification of
certain conditions imposed by the board in its approval
of the second application. More particularly, [the plain-
tiff] sought to increase the number of residential units
from seventeen to nineteen units; increase the amount
of available parking by three additional spaces; open
an entrance exit on Bradley Place without the obligation
to install a traffic signal; and change the form of residen-
tial ownership from condominiums to apartments. After
public hearings, the board approved the third applica-
tion on November 17, 2014. Ahuja appealed the board’s
decision to the Superior Court on . . . December 2,
2014. [The plaintiff] moved to dismiss the appeal on
the ground that it was not returned to court within the
time required by General Statutes § 52-46a. The motion
to dismiss was granted on July 6, 2015. No appeal was
taken. . . .
‘‘[The plaintiff] also alleges that [the] defendants
engaged in wrongful conduct outside of the immediate
context of the [aforementioned] legal proceedings
. . . . These allegations relate to false or otherwise
tortious communications that [the plaintiff] claims were
made by [the] defendants to various nongovernmental
individuals or entities with some role in the overall fate
of the project. . . . According to [the plaintiff], [the]
defendants (1) spread false information about the devel-
opment plans to neighbors, in an effort to mobilize
opposition to the project . . . (2) [contacted] [the
plaintiff’s] ‘lending institutions with the goal of control-
ling the debt that secured [the plaintiff’s] property’ . . .
and (3) contact[ed] or interfere[d] with [the plaintiff’s]
current or prospective tenant relationships. . . .
‘‘[The underlying] lawsuit was commenced by [the
plaintiff] in 2016. The operative complaint contains
seven counts, all of which relate in some way to [the]
defendants’ alleged campaign to impede [the plaintiff’s]
project by wrongful means. . . . Four counts of the
complaint are brought solely against Ahuja personally—
the first count, for common-law vexatious litigation;
the second count, for vexatious litigation under General
Statutes § 52-568, the third count, for abuse of process,
and the fourth count, which alleges that the conduct
underlying the first three counts violates [CUTPA]. Two
other counts are directed solely at . . . Holdings (the
fifth count, for aiding and abetting Ahuja’s wrongful
conduct as alleged in the first four counts; and the sixth
count, for a violation of CUTPA). The seventh count
alleges tortious interference with contractual and busi-
ness relations against both defendants.
‘‘[The defendants] . . . moved for summary judg-
ment on all counts. The sole basis for their motion [was]
the Noerr-Pennington doctrine, which, as explained
[subsequently], confers immunity from civil liability for
‘petitioning activity’ protected by the first amendment.
Broadly speaking, Noerr-Pennington immunizes activ-
ity undertaken by persons who use the official channels
of governmental agencies and courts to advocate their
cause, even if that cause consists of nothing more than
seeking an outcome adverse to a business competitor
and/or favorable to the petitioner’s own economic inter-
ests. [The plaintiff] . . . filed an objection to the
motion for summary judgment, and each party . . .
submitted extensive written memoranda and support-
ing materials. Oral argument [on the motion for sum-
mary judgment] was heard [before the trial court] on
November 27, 2017. In mid-March, 2018, at [the] plain-
tiff’s initiative and over [the] defendants’ objection, the
court allowed the parties to submit supplemental briefs.
Argument on the supplemental submission was heard
[before the trial court] on March 29, 2018.’’ (Foot-
notes omitted.)
In its May 3, 2018 memorandum of decision, the court
granted the motion for summary judgment in favor of
the defendants on counts one through six, and denied
the motion with respect to the seventh count.3 Applying
the Noerr-Pennington doctrine, the court concluded
that Ahuja’s zoning appeals were immunized from suit
and, further, that Ahuja’s petitioning activity did not
qualify for the sham exception to the doctrine because
the relevant zoning appeals were not objectively base-
less. The plaintiff has appealed to this court from the
judgment rendered on counts one through six. Addi-
tional procedural history will be set forth as necessary.
I
The plaintiff first claims that the court erred in con-
cluding, as a matter of law, that Ahuja’s zoning appeals
with regard to the plaintiff’s proposed development plan
were not objectively baseless and, therefore, the sham
exception to the Noerr-Pennington doctrine was not
applicable. We disagree.
‘‘The standard of review of a trial court’s decision
granting summary judgment is well established. Prac-
tice 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 courts are in entire agree-
ment that the moving party . . . has the burden of
showing the absence of any genuine issue as to all
the material facts . . . . When documents submitted
in support of a motion for summary judgment fail to
establish that there is no genuine issue of material fact,
the nonmoving party has no obligation to submit docu-
ments establishing the existence of such an issue. . . .
Once the moving party has met its burden, however,
the [nonmoving] party must present evidence that dem-
onstrates the existence of some disputed factual issue.
. . . Our review of the trial court’s decision to grant
the defendant’s motion for summary judgment is ple-
nary. . . . On appeal, we must determine whether the
legal conclusions reached by the trial court are legally
and logically correct and whether they find support in
the facts set out in the memorandum of decision of
the trial court.’’ (Citations omitted; internal quotation
marks omitted.) Lucenti v. Laviero, 327 Conn. 764, 772–
73, 176 A.3d 1 (2018).
We begin our analysis by setting forth the background
of the Noerr-Pennington doctrine generally and, specif-
ically, how it has been applied in Connecticut jurispru-
dence. In Zeller v. Consolini, 59 Conn. App. 545, 758
A.2d 376 (2000), this court adopted ‘‘the reasoning of
a trio of federal antitrust cases, California Motor Trans-
port Co. v. Trucking Unlimited, 404 U.S. 508, 92 S. Ct.
609, 30 L. Ed. 2d. 642 (1972) [(California Motor)],
United Mine Workers v. Pennington, 381 U.S. 657, 85
S. Ct. 1585, 14 L. Ed. 2d 626 (1965), Eastern Railroad
Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and
their progeny, collectively referred to as the Noerr-
Pennington doctrine.
‘‘In short, the Noerr-Pennington doctrine shields
from the Sherman [Antitrust] Act [15 U.S.C. § 1 et seq.]
a concerted effort to influence public officials regard-
less of intent or purpose. . . . The United States
Supreme Court has reasoned that it would be destruc-
tive of rights of association and of petition to hold
that groups with common interests may not, without
violating the antitrust laws, use the channels and proce-
dures of state and federal agencies and courts to advo-
cate their causes and points of view respecting resolu-
tion of their business and economic interests vis-à-vis
their competitors. California Motor Transport Co. v.
Trucking Unlimited, supra, [404 U.S. 510–11].
‘‘The Noerr-Pennington doctrine has evolved from
its antitrust origins to apply to a myriad of situations
in which it shields individuals from liability for petition-
ing a governmental entity for redress. [A]lthough the
Noerr-Pennington defense is most often asserted
against antitrust claims, it is equally applicable to many
types of claims which [seek] to assign liability on the
basis of the defendant’s exercise of its first amendment
rights. . . . For example, Noerr-Pennington has been
recognized as a defense to actions brought under the
National Labor Relations Act, 29 U.S.C. § 151 et seq.;
Bill Johnson’s Restaurants, Inc. v. National Labor
Relations Board, 461 U.S. 731, 741, 103 S. Ct. 2161,
76 L. Ed. 2d 277 (1983); state law claims of tortious
interference with business relations; NAACP v. Claib-
orne Hardware Co., 458 U.S. 886, 913–15, 102 S. Ct.
3409, 73 L. Ed. 2d 1215 (1982); federal securities laws;
Havoco of America Ltd. v. Hollobow, 702 F.2d 643, 650
(7th Cir. 1983); and wrongful discharge claims. . . .
‘‘Although the Noerr-Pennington doctrine provides
broad coverage to petitioning individuals or groups, its
protection is not limitless. . . . [P]etitioning activity is
not protected if such activity is a mere sham or pretense
to interfere with no reasonable expectation of obtaining
a favorable ruling.’’ (Citations omitted; internal quota-
tion marks omitted.) Zeller v. Consolini, supra, 59 Conn.
App. 550–52.
Preliminarily, it is undisputed that the Noerr-Pen-
nington doctrine applies to the present case. The plain-
tiff argues on appeal, however, that the zoning litigation
initiated by Ahuja and supported by Holdings was base-
less and thus meets the doctrine’s sham exception. In
Professional Real Estate Investors, Inc. v. Columbia
Pictures Industries, Inc., 508 U.S. 49, 113 S. Ct. 1920,
123 L. Ed. 2d. 611 (1993), the United States Supreme
Court outlined a two part definition of ‘‘sham’’ litigation.
‘‘First, the lawsuit must be objectively baseless in the
sense that no reasonable litigant could realistically
expect success on the merits. If an objective litigant
could conclude that the suit is reasonably calculated
to elicit a favorable outcome, the suit is immunized
under Noerr, and an antitrust claim premised on the
sham exception must fail. Only if challenged litigation is
objectively meritless may a court examine the litigant’s
subjective motivation. Under this second part of our
definition of sham, the court should focus on whether
the baseless lawsuit conceals an attempt to interfere
directly with the business relationships of a competitor
. . . .’’ (Emphasis in original; footnote omitted; internal
quotation marks omitted.) Id., 60–61.
‘‘The existence of probable cause to institute legal
proceedings precludes a finding that [a] . . . defen-
dant has engaged in sham litigation. The notion of prob-
able cause, as understood and applied in the common-
law tort of wrongful civil proceedings, requires the
plaintiff to prove that the defendant lacked probable
cause to institute an unsuccessful civil lawsuit and that
the defendant pressed the action for an improper, mali-
cious purpose. . . . Probable cause to institute civil
proceedings requires no more than a reasonabl[e]
belie[f] that there is a chance that [a] claim may be held
valid upon adjudication. . . . Because the absence of
probable cause is an essential element of the tort, the
existence of probable cause is an absolute defense.
. . . Just as evidence of anticompetitive intent cannot
affect the objective prong of Noerr’s sham exception, a
showing of malice alone will neither entitle the wrongful
civil proceedings plaintiff to prevail nor permit the [fact
finder] to infer the absence of probable cause. . . .
When a court has found that [a] . . . defendant claim-
ing Noerr immunity had probable cause to sue, that
finding compels the conclusion that a reasonable liti-
gant in the defendant’s position could realistically
expect success on the merits of the challenged lawsuit.
. . . [T]herefore, a proper probable cause determina-
tion irrefutably demonstrates that [a] . . . plaintiff has
not proved the objective prong of the sham exception
and that the defendant is accordingly entitled to Noerr
immunity.’’ (Citations omitted; footnote omitted; inter-
nal quotation marks omitted.) Id., 62–63.
‘‘Application of the Noerr-Pennington doctrine to
. . . petitioning activity directed at local governments
. . . already is well established. E.g., Columbia v.
Omni Outdoor Advertising, Inc., 499 U.S. 365, 379–84,
111 S. Ct. 1344, 113 L. Ed. 2d 382 (1991) (city council);
Juster Associates v. Rutland, 901 F.2d 266, 270–72 (2d
Cir. 1990) (city); Racetrac Petroleum, Inc. v. Prince
George’s County, 786 F.2d 202, 203 (4th Cir. 1986)
(county zoning board); Bob Layne Contractor, Inc. v.
Bartel, 504 F.2d 1293, 1296 (7th Cir. 1974) (city zoning
board and council). Indeed, many of our own trial courts
have applied the Noerr-Pennington doctrine in their
decisions. E.g., Roncari Development Co. v. GMG
Enterprises, Inc., 45 Conn. Supp. 408, 414, 718 A.2d
1025 (1997), citing Connecticut National Bank v. Mase,
Superior Court, judicial district of Fairfield at Bridge-
port, Docket No. 269180 (January 31, 1991); Abrams v.
Knowles, Superior Court, judicial district of New Lon-
don at Norwich, Docket No. 95287 (December 4, 1990)
(3 Conn. L. Rptr. 9); Yale University School of Medicine
v. Wurtzel, Superior Court, judicial district of New
Haven, Docket No. 275314 (November 9, 1990) (2 Conn.
L. Rptr. 813).’’ Zeller v. Consolini, supra, 59 Conn.
App. 552–53.
In granting the defendants’ motion for summary judg-
ment, the court applied the Noerr-Pennington doctrine
to the defendants’ petitioning activity and determined
that the activity was immunized from suit. Further, the
court determined that the sham exception to the doc-
trine was inapplicable because Ahuja’s zoning appeals
were not objectively baseless.4 Whether the court prop-
erly granted summary judgment as to counts one
through six essentially comes down to whether the
court properly applied the Noerr-Pennington doctrine.
Accordingly, we will examine the appeals brought by
Ahuja with respect to the plaintiff’s second and third
zoning applications, which were the subject of the
causes of action in counts one through six of the plain-
tiff’s complaint.
A
Ahuja’s Appeal of the Second Application
Having set forth the Noerr-Pennington doctrine and
its applicability to Ahuja’s petitioning activity in the
present case, we now turn to the plaintiff’s claims with
regard to Ahuja’s appeal of the second application. First,
the plaintiff claims that the court erred in concluding
as a matter of law that Ahuja’s appeal of the board’s
approval of the second application was objectively
baseless. Specifically, the plaintiff claims that Ahuja’s
appeal was objectively baseless in that she alleged that
the board acted ‘‘illegally, unlawfully, [and] arbitrarily’’
in granting the plaintiff’s second application because
the notice for several of the public hearings was inade-
quate and that the application was materially changed
after one of the public hearings.
The following additional procedural history is rele-
vant to this portion of the plaintiff’s appeal. In July,
2011, while the plaintiff’s appeal from the denial of its
first application was pending, the plaintiff filed a second
application for a special permit and architectural/site
plan approval. In preparation for a public hearing for
the second application held on September 26, 2011, the
board published notice in the Stamford Advocate on
September 14 and 21, 2011. The public hearing was
continued to October 6, 2011, and then to October 24,
2011, due to the large number of citizens who wished
to speak on the application. The board did not publish
additional notice for the continued hearings. The board
also published notice in the Stamford Advocate on Octo-
ber 28 and November 4, 2011, for a public hearing on
November 10, 2011. Following the board’s approval of
the plaintiff’s second application, Ahuja appealed the
board’s decision, alleging that the board acted ‘‘illegally,
unlawfully, [and] arbitrarily.’’ Specifically, Ahuja
alleged that ‘‘(a) [t]he board lacked jurisdiction to hear
and decide the [second] application where notice of the
public hearings held on October 6, 2011, and October 24,
2011, was not published in a newspaper having general
circulation in the city of Stamford; [and] (b) the board
lacked jurisdiction to approve the application since it
was materially changed by [the plaintiff] at the last
public hearing held on November 10, 2011. The changes
made to the application on November 10, 2011, were
material and therefore constituted a new application.
The board lacked jurisdiction to approve the new appli-
cation since it did not comport with the notice require-
ments of General Statutes § 8-3 et seq. and the Stamford
Zoning Regs., art. VI, § 20.’’ The court rejected Ahuja’s
claims and denied the appeal.
1
No Notice Claim
First, we address the portion of the plaintiff’s claim
relating to Ahuja’s appeal of the second application on
the basis that adequate notice was not provided for
several of the public hearings associated with the sec-
ond application.
The court, in granting the motion for summary judg-
ment in favor of the defendants, found ‘‘that Ahuja’s
legal claims regarding notice were supported by proba-
ble cause.’’ Ahuja’s appeal of the second zoning applica-
tion was based in part on the assertion that with respect
to several of the public hearings associated with the
second application, notice was not provided in compli-
ance with the relevant provision of the Stamford Char-
ter (charter). Specifically, Ahuja argued that notice was
not provided for the public hearings on October 6 and
24, 2011. The public hearings in question were contin-
ued from an initial public hearing held on September
26, 2011, for which adequate notice was provided. In
determining that Ahuja’s appeal with regard to the
notice claim was not objectively baseless, the court
most heavily relied on the plain text of the relevant
charter provisions which ‘‘provided Ahuja with a solid
foundation to contend that a new notice was required
for every public hearing, ‘continuation’ or otherwise.’’
In particular, the court looked to the language of §§ C6-
40-11 and C6-40-12 of the charter. Section C6-40-11,
titled ‘‘Notice of Public Hearings,’’ provides in relevant
part: ‘‘Notice of each public hearing held with respect
to amendments of the Zoning Regulations and Map or
applications for approval of site and architectural plans
and/or requested uses shall be given by publishing in
an official newspaper the time, place and purpose of
such hearing. . . . Said notice shall be published at
least twice, the first not more than fifteen nor less than
ten days before such hearing, and the last not less than
two days before such hearing . . . .’’ Section C6-40-
12, titled ‘‘Hearings,’’ provides that ‘‘[i]f more than one
public hearing is considered by the Zoning Board to be
necessary or advisable, additional hearings may be held
upon due notice, as herein above set forth, provided
no more than ninety days shall elapse between the
first and last hearing on any one petition, unless the
petitioner agrees in writing to an extension of such
period.’’ The court determined that ‘‘Ahuja’s argu-
ment—that the literal text of § C6-40-12 requires notice
of any and all ‘additional hearing[s]’ held in connection
with an application—posits a very plausible construc-
tion of the charter provision. The text of § C6-40-12
does not limit its application to ‘new’ or ‘separate’ hear-
ings, or otherwise create a category of ‘continuation’
hearings exempt from the notice requirement. The pro-
vision’s literal terms would seem to include any ‘addi-
tional’ hearing, and its context would appear to contem-
plate precisely the situation confronted in connection
with the second application, when the first public hear-
ing was insufficient to complete the board’s full consid-
eration of the zoning matter at issue.’’ (Emphasis in
original.)
In challenging the court’s determination that Ahuja’s
second zoning appeal, which was based in part on a
claim that notice was deficient, was not objectively
baseless, the plaintiff points both to the plain text of the
charter, and to Connecticut case law. First, in looking
to the language of the relevant charter provisions, the
plaintiff asserts that the drafters contemplated that the
continuation of public hearings would be a common
phenomenon, and that if they intended for notice to
be provided for each continuation, they would have
included language to that effect. The omission of such
language, according to the plaintiff, is indicative of the
drafters’ intentions not to require notice for continua-
tions, and that Ahuja, in looking at the plain language
of the charter, should have considered that her appeal
would not likely succeed.
Second, in support of its argument, the plaintiff relies
primarily on two cases; Roncari Industries, Inc. v.
Planning & Zoning Commission, 281 Conn. 66, 912
A.2d 1008 (2007) (Roncari Industries), and Carberry
v. Zoning Board of Appeals, Superior Court, judicial
district of Stamford-Norwalk, Docket No. CV-00-
0176766 (October 16, 2001) (30 Conn. L. Rptr. 537). In
Roncari Industries, a neighbor who owned property
that abutted the property at issue, appealed the decision
of the town planning and zoning commission, which
granted the landowner’s application for a special per-
mit. The basis of the plaintiff’s appeal was that ‘‘the
commission failed to satisfy the notice requirements of
General Statutes (Rev. to 2001) § 8-3 regarding the pub-
lic hearing because the notice given for the originally
scheduled public hearing was insufficient to apprise
the public that the matter was scheduled to be heard
on a later date . . . .’’ (Footnote omitted.) Roncari
Industries, Inc. v. Planning & Zoning Commission,
supra, 70–71. The court held that ‘‘[§] 8-3 does not
require the publication of additional notices when the
public hearing is continued or rescheduled; the statute
is silent with regard to notice when the hearing is post-
poned. Similarly, nothing in the town’s zoning regula-
tions requires the publication of additional notices
when a public hearing is rescheduled or continued.’’
Id., 73.
Similarly, in Carberry, the plaintiff claimed that the
notice given of a continued hearing was defective
because there was no newspaper publication of the fact
that the relevant application would be considered on
that date. Carberry v. Zoning Board of Appeals, supra,
30 Conn. L. Rptr. 537. The relevant notice provision in
Carberry was that set forth in General Statutes § 8-
7d.5 Id., 541. The court found that the notice for the
continued hearing did not need to comply with the
requirements in § 8-7d (a). Id. Specifically, the court
stated that ‘‘[r]equiring new newspaper publication of
notice for a hearing that is continued beyond the origi-
nal date would place an undue burden on local boards
and commissions which as a general practice meet dur-
ing the evening hours of the work week. There are many
conceivable and appropriate reasons for a zoning board
of appeals not to complete a hearing on a matter in a
single weekday evening. If each continuation of a hear-
ing imposed the necessity of a new newspaper publica-
tion schedule, it would severely constrain the schedul-
ing of new dates and slow down the process.’’ Id.
The plaintiff purports in its brief that ‘‘[t]here are
no material differences’’ between the present case and
Roncari Industries and, therefore, that ‘‘[t]here is no
way a reasonable litigant reading Roncari Industries
and assessing whether the defendants’ ‘no notice’ argu-
ment had a reasonable chance of succeeding could
rationally conclude that the argument had any such
prospect.’’ The plaintiff further contends that the notice
provisions in Roncari Industries and the present case
are ‘‘virtually identical.’’ The plaintiff also asserts that
the defendants’ reading of Carberry ‘‘could only have
enforced the view that the argument was hopeless.’’
Although we agree with the plaintiff that the aforemen-
tioned case law did not necessarily support Ahuja’s
appeal, that fact does not automatically make Ahuja’s
appeal objectively baseless. The cases relied on by the
plaintiff, even if brought to Ahuja’s attention, would not
make her appeal of the second application objectively
baseless because in those cases the courts analyzed
notice provisions that were entirely different from the
provision in the present case. Specifically, the court in
Roncari Industries conducted a notice analysis entirely
under the purview of General Statutes (Rev. to 2001)
§ 8-3 (a)6 and the court in Carberry focused its analysis
on § 8-7d (a), whereas in the present case the relevant
notice provisions are §§ C6-40-11 and C6-40-12 of the
charter.7
In its memorandum of decision granting summary
judgment in favor of the defendants, the court noted
that ‘‘the text of the relevant charter provisions pro-
vided Ahuja with a solid foundation to contend that
a new notice was required for every public hearing,
‘continuation’ or otherwise. Section C6-40-11 of the
charter contains the basic requirement that the board
give notice of a public hearing to be held on certain
types of zoning applications. Section C6-40-12 of the
charter provides specifically for the situation where a
matter before the board requires more than one hearing:
‘‘If more than one public hearing is considered by the
Zoning Board to be necessary or advisable, additional
hearings may be held upon due notice, as herein above
set forth . . . . Ahuja’s argument—that the literal text
of § C6-40-12 requires notice of any and all ‘additional
hearing[s]’ held in connection with an application—
posits a very plausible construction of the charter provi-
sion. The text of § C6-40-12 does not limit its application
to ‘new’ or ‘separate’ hearings, or otherwise create a
category of ‘continuation’ hearings exempt from the
notice requirement. The provision’s literal terms would
seem to include any ‘additional’ hearing, and its context
would appear to contemplate precisely the situation
confronted in connection with the second application,
when the first public hearing was insufficient to com-
plete the board’s full consideration of the zoning matter
at issue.’’ (Emphasis in original.)
We conclude that the court’s determination, which
was grounded in the language of the relevant charter
provisions, is legally and logically correct. We agree
that a reasonable litigant, reading the notice provisions
of §§ C6-40-11 and C6-40-12, could deduce that notice
is required for every public hearing, including a continu-
ation. In particular, the charter’s use of the word ‘‘addi-
tional,’’ without specific omission of continuations,
could lead a reasonable litigant to believe that any addi-
tional hearing, including a continuation, requires notice
pursuant to the relevant charter provisions. We disagree
with the plaintiff’s contention that the notice provisions
at issue in Roncari Industries8 and the charter are
virtually identical. Roncari Industries concerned a pro-
vision of the General Statutes, and the present case
concerns a notice provision from the charter. Further,
General Statutes (Rev. to 2001) § 8-3 (a) in Roncari
Industries does not include the word ‘‘additional,’’
which is included in the notice provision of the charter.
The similarity between Roncari Industries and the
present case begins and ends with the fact that both
notice provisions are silent with regard to the term
‘‘continuation.’’ We conclude, however, that the differ-
ences between the two provisions are such that a rea-
sonable litigant relying on the notice provisions in the
charter could bring an appeal on the ground of lack of
notice for a continued hearing, despite the outcome in
Roncari Industries.
Further, we conclude that the trial court’s determina-
tion regarding the notice aspect of the second applica-
tion is consistent with this court’s prior analysis of
the Noerr-Pennington doctrine. Specifically, in Zeller
v. Consolini, supra, 59 Conn. App. 553–54, this court
stated that ‘‘failure to apply the Noerr-Pennington doc-
trine aggressively may create a chilling effect on the
first amendment right to petition in zoning and other
matters. . . . Indeed, such a chilling effect can be a
virtual deep freeze when individual citizens not versed
in the legal system and without financial resources do
not exercise potentially meritorious legal challenges for
fear of costly and protracted, retributive litigation from
opponents.’’ (Citations omitted; internal quotation
marks omitted.) We decline to accept the plaintiff’s
reasoning that, on the basis of the holdings in Roncari
Industries and Carberry, Ahuja should have known
that her notice argument was meritless and, therefore,
objectively baseless. As aforementioned, Roncari
Industries and Carberry did not analyze the specific
notice provisions at issue in the present case. The type
and language of the notice provisions in the cases relied
on by the plaintiff and that are at issue in the present
case were not identical. To hold Ahuja, and future par-
ties, to the standard suggested by the plaintiff would
contradict our holding in Zeller. Although we agree with
the court that Ahuja’s appeal of the second application
on the notice issue ultimately was not successful, that is
not determinative of whether the appeal was objectively
baseless. To the contrary, we agree with the court that
a reasonable litigant could have expected to prevail on
the basis of Ahuja’s notice argument.
Finally, the court concluded that, despite the fact
that Ahuja’s argument was not successful before the
board, ‘‘and perhaps it should have lost . . . it was by
no means groundless.’’ We conclude that the court’s
finding in this respect is legally and logically correct.
Specifically, the trial court’s rationale closely adheres
to the reasoning in Zeller v. Consolini, supra, 59 Conn.
App. 545. In particular, in Zeller, this court stated: ‘‘The
defendants’ opposition to the plaintiffs’ zoning requests
and the defendants’ subsequent appeals were legally
available to the defendants and followed applicable
judicial procedure. Merely because those attempts
failed does not in itself make them baseless acts. A
failure of the challenged action is only one factor in
determining whether an action is a sham. . . . [W]hen
the . . . defendant has lost the underlying litigation,
a court must resist the understandable temptation to
engage in post hoc reasoning by concluding that an
ultimately unsuccessful action must have been unrea-
sonable or without foundation.’’ (Citation omitted;
internal quotation marks omitted.) Id., 560. Similarly,
here, we conclude that the outcome of the defendants’
appeal of the second application is not determinative
of whether that appeal was objectively baseless under
the Noerr-Pennington doctrine.
We conclude that, with regard to Ahuja’s appeal of
the second application, the court properly determined
that Ahuja’s actions were not objectively baseless and
were not a sham that would strip away the protection
of the Noerr-Pennington doctrine and properly found
no genuine issue of material fact.
2
Mid-hearing Changes Claim
The second ground raised in Ahuja’s appeal of the
approval of the plaintiff’s second application was that
the board lacked jurisdiction to approve the application
because it was materially changed by the plaintiff at
the last public hearing held on November 10, 2011.
With regard to the mid-hearing changes claim, the
plaintiff purports that ‘‘the trial court never addressed
[Ahuja’s] mid-hearing change claim and thus, expressed
no view on whether it was objectively baseless or not.’’
The defendants, in their brief, agree that the court did
not address the mid-hearing change claim, but stated
that the trial court was not required to address that
portion of the claim because it had already made a
determination that the notice portion of the appeal of
the second application was not objectively baseless.
We agree with the defendants for two reasons. First,
we look to the language of Professional Real Estate
Investors, Inc., the seminal case concerning the sham
exception to the Noerr-Pennington doctrine. Specifi-
cally, the court stated that in order to be a sham, a
‘‘lawsuit must be objectively baseless . . . .’’ (Empha-
sis added.) Professional Real Estate Investors, Inc. v.
Columbia Pictures Industries, Inc., supra, 508 U.S. 60.
Further, the court stated that ‘‘[i]f an objective litigant
could conclude that the suit is reasonably calculated
to elicit a favorable outcome, the suit is immunized
under Noerr, and . . . [a claim] premised on the sham
exception must fail.’’ (Emphasis added.) Id. The court’s
use of the broad terms ‘‘lawsuit’’ and ‘‘suit’’ reflects that
it is unnecessary for each claim within an action to
survive scrutiny under the sham exception to the Noerr-
Pennington doctrine provided that the action contains
at least one claim that is not a sham.
Second, multiple federal courts have held that an
action cannot be classified as a sham so long as at least
one claim in the action has objective merit. For instance,
in Trustees of University of Pennsylvania v. St. Jude
Children’s Research Hospital, 940 F. Supp. 2d 233, 247
(E.D. Pa. 2013), the court stated that ‘‘[c]ourts have
routinely held that as long as some of the claims in a
complaint have a proper basis, the lawsuit is not a sham
for Noerr-Pennington purposes.’’ (Internal quotation
marks omitted). Further, in Dentsply International,
Inc. v. New Technology Co., United States District
Court, Docket No. 96-272 (MMS) (D. Del. December
19, 1996), the court held that ‘‘litigation will not be
considered a sham so long as at least one claim in the
lawsuit has objective merit.’’ (Internal quotation marks
omitted). Similar language was used by the court in
Eden Hannon & Co. v. Sumitomo Trust & Banking
Co., 914 F.2d 556, 565 (4th Cir. 1990), in which the court
held that an action containing one claim with objective
merit was ‘‘hardly a sham.’’ Finally, in In re Flonase
Antitrust Litigation, 795 F. Supp. 2d 300, 311–12 (E.D.
Pa. 2011), stated that ‘‘[p]laintiffs do not need to show
a realistic expectation of success on all of [the] argu-
ments in each petition and its lawsuit.’’ (Emphasis in
original.)
Connecticut courts have yet to address whether, in
the context of the Noerr-Pennington doctrine, a court
may conclude that a party’s action was not objectively
baseless on the basis of one claim in the action having
merit. We agree with the federal courts that have con-
cluded that a party’s action cannot be objectively base-
less when at least one claim in the action has merit.
We are in accordance with the court’s reasoning in
Trustees of University of Pennsylvania v. St. Jude Chil-
dren’s Research Hospital, supra, 940 F. Supp. 2d 247,
that such a holding is consistent with the ‘‘very narrow
scope’’ of the Noerr-Pennington doctrine’s sham
exception.
As discussed in part I of this opinion, we conclude
that, on the basis of the defendants’ notice claim, Ahu-
ja’s appeal of the second application was not objectively
baseless. For this reason, the court properly rendered
summary judgment in favor of the defendants with
respect to the plaintiff’s claim that Ahuja’s appeal of
the second zoning application met the sham exception
to the Noerr-Pennington doctrine. Accordingly, we
need not reach the second ground on which Ahuja prem-
ised her appeal of the second application—that the
board lacked jurisdiction to approve the application
because the application had been materially changed.
B
Ahuja’s Appeal of the Third Application
The plaintiff also claims that the court erred in grant-
ing summary judgment in favor of the defendants
because Ahuja’s appeal of the plaintiff’s third zoning
application was objectively baseless.
The following procedural history, as set forth by the
court in its memorandum of decision, is relevant to
this portion of the appeal. ‘‘The third application was
submitted by [the plaintiff] to modify certain conditions
that the board had placed on the development project
in its previous decisions. These modifications, among
other things, sought to increase the number of units
approved to nineteen units; increase the amount of
available parking by three additional spaces; open an
entrance exit on Bradley Place without the obligation to
install a traffic signal; and change the form of ownership
from condominiums to apartments. . . . [T]here was
some amount of neighborhood opposition to the third
application. The thrust of this opposition was that the
conditions attached by the board to its prior approval
of the project in December, 2011 (as part of the second
application) was based on a compromise reached by
[the plaintiff] with opponents of the project; the neigh-
bors claimed that [the plaintiff’s] third application
reneged on important components of that prior agree-
ment by seeking modifications that would, among other
things, increase the number of residential units from
seventeen to nineteen and change the residential owner-
ship from condominium to rental units. . . .
‘‘In a four to one split decision, the board voted to
approve the third application on November 17, 2014,
effective November 21, 2014. It appears . . . that the
majority failed to provide any reasons for its approval.
. . . [D]uring the board’s brief deliberations, Stam-
ford’s associate planner read aloud to the board from
the text of condition [No.] 2 to the board’s prior
approval of the special exception. . . . Condition [No.]
2 stated that the project’s ‘residential development shall
be limited to a total of seventeen units to be in condo-
minium form of ownership.’ The meeting minutes
reflected that the board members were polled, and the
majority indicated that they were ‘okay with adding the
two additional units.’ The board did not explain why
the modification was ‘okay.’
‘‘Ahuja appealed the board’s decision to the Superior
Court by complaint dated December 2, 2014, with a
return date January 6, 2015. The appeal claimed, among
other things, that there was not ‘substantial evidence’
in the record to support the board’s approval of the
special exception under § 19-3.2 of the Stamford Zoning
Regulations.’’ Specifically, in her appeal, Ahuja claimed
that ‘‘[i]n approving the [third] application, the board
acted illegally, unlawfully, arbitrarily, upon unlawful
procedures, in excess of its authority, and in abuse of
its discretion, in one or more of the following respects:
(a) The board lacked jurisdiction to hear and decide
the [third] application where notice of the public hear-
ing held on November 10, 2014 was not provided to
abutters within the meaning of [General Statutes] § 8-
8 (a) (1), [and] (b) the board lacked jurisdiction to
approve the [third] application, as there was no traffic
impact study submitted with the [third] application that
is a prerequisite for the . . . board to act upon an appli-
cation pursuant to the Stamford zoning regulations.’’
‘‘[The plaintiff] moved to dismiss the appeal on the
ground that it was not returned to court within the time
required by General Statutes § 52-46a. The motion to
dismiss was granted on July 6, 2015. No appeal was
taken from that disposition.’’
Preliminarily, the court noted that, because the
appeal was dismissed on procedural grounds, it did not
have insight into how a reviewing court would have
ruled on Ahuja’s appeal of the third application. Regard-
less, the court stated that its ‘‘review of the underlying
record leads to the firm conviction that a court consider-
ing the merits reasonably might have concluded that
substantial evidence did not support the board’s deci-
sion to grant the special exception sought in the third
application. It is unlikely, but a reversal might have
been obtained based on a court’s view of the evidence
in light of the five relevant categories to be taken into
account under § 19-3.2 of the Stamford zoning regula-
tions. More likely is the possibility that a Superior Court
would have been particularly concerned that the board
originally saw fit, in December, 2011, to place express
conditions on its approval of the special exception by
allowing a maximum of seventeen residential units but,
then, in 2014, changed that limitation to permit the
developer to increase the number of units to nineteen
without justifying the modification, and without
explaining what circumstances leading to the original
limitation had changed.’’
As the court alluded to in its discussion of the third
application, a court reviewing the decision of a zoning
board does so under the ‘‘substantial evidence’’ analy-
sis. ‘‘The evidence supporting the decision of a zoning
board must be substantial. . . . This so-called substan-
tial evidence rule is similar to the sufficiency of the
evidence standard applied in judicial review of jury
verdicts, and evidence is sufficient to sustain an agency
finding if it affords a substantial basis of fact from which
the fact in issue can be reasonably inferred. . . . [I]t
must be enough to justify, if the trial were to a jury, a
refusal to direct a verdict when the conclusion sought
to be drawn from it is one of fact for the jury. . . .
The substantial evidence rule is a compromise between
opposing theories of broad or de novo review and
restricted review or complete abstention. It is broad
enough and capable of sufficient flexibility in its appli-
cation to enable the reviewing court to correct whatever
ascertainable abuses may arise in administrative adjudi-
cation. On the other hand, it is review of such breadth
as is entirely consistent with effective administration.
. . . The corollary to this rule is that absent substantial
evidence in the record, a court may not affirm the deci-
sion of the board.’’ (Citations omitted; internal quota-
tion marks omitted.) Martland v. Zoning Commission,
114 Conn. App. 655, 663, 971 A.2d 53 (2009).
In its brief, the plaintiff argues that its third applica-
tion did not seek a special exception and, therefore,
the trial court’s determination is ‘‘based on a flawed
analysis.’’ Rather, the plaintiff states that, prior to the
third application, it had received two special excep-
tions; one via the decision on the first application and
a second via the decision on the second application.
The plaintiff claims that, as a result of these two special
exceptions, it had already satisfied the zoning regula-
tions special exception requirements and it was there-
fore entitled to approval in each instance.
The defendants argue that the court was correct in
its determination that Ahuja’s appeal of the third appli-
cation was not objectively baseless because ‘‘[a]ny rea-
sonable litigant in [Ahuja’s] position would conclude the
modifications sought were conditions that contradicted
what was previously agreed upon in prior applications
and approvals.’’ As aforementioned, the third applica-
tion specifically attempted to increase the number of
residential units in the second floor of one of the build-
ings, to increase the number of available parking spots
by three spaces, to change the residential use of the
units from condominiums to apartments, and to open
an entrance exit on Bradley Place without the obligation
of a traffic signal. In support of its argument, the defen-
dants also point to the fact that seventeen members of
the public voiced their opposition to the third applica-
tion at a public hearing. Finally, the defendants argue
that the appeal of the third application was not objec-
tively baseless because ‘‘the plaintiff failed to provide
a traffic impact study in support of the third application,
despite the study being requested by the city traffic
engineer. . . . Stamford Zoning Regulations § 7.2C
requires the applicant to submit a traffic impact study
when requested by the city traffic engineer.’’ Therefore,
the defendants purport that ‘‘[a]ny reasonable litigant
in [Ahuja’s] position would conclude the plaintiff’s fail-
ure to submit a required traffic study made the third
application defective and incomplete.’’
The plaintiff correctly asserts that the court did not
address each of the modifications individually in
determining that Ahuja had probable cause to appeal
the third application. Under our plenary review, we turn
first to the defendants’ argument that the appeal was
not objectively baseless because the plaintiff did not
provide a traffic impact study, as required by Stamford
zoning regulations. Preliminarily, the Connecticut Prac-
tice Series states that ‘‘[f]or a special permit to be
granted, it must appear from the record before the
agency that the application met all conditions imposed
by the regulations.’’ R. Fuller, 9A Connecticut Practice
Series: Land Use Law and Practice (4th Ed. 2015) § 33.4,
p. 278. Alternatively, ‘‘[a] special permit can only be
denied for failure to meet specific standards in the
regulation . . . .’’ Id. The relevant regulation in this
case was § 7.2C15 of the Stamford Zoning Regulations,
which provides in relevant part that ‘‘[a] traffic impact
and access study shall be submitted, prepared by a
State of Connecticut Registered Professional Engineer
qualified to prepare such studies, where . . . consid-
ered necessary in the judgment of the City Traffic Engi-
neer.’’ Here, before the trial court on the motion for
summary judgment as Exhibit CC was a letter from a
city traffic engineer, requesting a traffic impact study
from the plaintiff for the intersection where a traffic
light was proposed to be installed. The plaintiff counters
that the third application was not incomplete by means
of the missing traffic impact study because one of the
relevant roads in the intersection was a state road and,
therefore, only the Department of Transportation
(department) had the power to authorize the installa-
tion of traffic lights.
On the basis of the parties’ arguments, we conclude
that the court correctly determined that Ahuja’s appeal
of the third application was not objectively baseless.
The plaintiff’s failure to submit a traffic impact study
resulted in its noncompliance with the Stamford zoning
regulations. We agree with the defendants’ argument
that a reasonable litigant in Ahuja’s position would con-
clude that the plaintiff’s noncompliance resulted in an
incomplete application and, thus, provided a proper
basis for an appeal to the board. See Two Yale & Towne,
LLC v. Zoning Board of Appeals, Superior Court, judi-
cial district of Hartford, Docket No. CV-XX-XXXXXXX-S
(July 24, 2014) (court dismissed appeal on basis of
incomplete application that was noncompliant with
zoning regulations); Cohen v. Zoning Board of Appeals,
Superior Court, judicial district of Fairfield, Docket No.
CV-XX-XXXXXXX-S (October 31, 2012) (court sustained
appeal on basis of incomplete application that was non-
compliant with town zoning regulations).
The plaintiff counters by referring to its submissions
in its objection to the motion for summary judgment,
arguing that shortly before the board’s approval of the
third application, the plaintiff testified at a public hear-
ing regarding the traffic light. Specifically, the plaintiff
testified before the board that one of the roads in ques-
tion was a state road and, therefore, that only the depart-
ment had the power to authorize the installation of a
traffic light. The plaintiff also testified that it sought
the department’s authorization for a traffic light, but
that the department rejected the request on the basis
of a study of traffic counts in the area. During this
testimony, a chairman of the board asked the plaintiff
whether it had documentation confirming the depart-
ment’s denial of the request. The plaintiff did not defini-
tively provide an answer as to whether documentation
existed, but the record does not contain any written
notice confirming the fact to which the plaintiff testi-
fied. Further, the record does not suggest that the city
traffic engineer rescinded the requirement that the
plaintiff provide a traffic impact study. Therefore, our
review of the record leads to the conclusion that, on
the basis of the plaintiff’s failure to submit a traffic
impact study, a reasonable litigant could have deter-
mined that the plaintiff’s third application was non-
compliant with the Stamford zoning regulations and,
therefore, there was not substantial evidence support-
ing the approval of the application. Accordingly, we
conclude that the trial court properly granted summary
judgment in favor of the defendants because the appeal
of the third application was not objectively baseless.
Finally, we conclude that we need not reach the issue
of whether Ahuja’s appeal was objectively baseless on
the basis of the ground alleged therein related to modifi-
cations of the application, in addition to the omission
of the traffic impact study. In coming to this conclusion,
we refer to the aforementioned principle in part I A 2
of this opinion that an action cannot be a sham under
the Noerr-Pennington doctrine so long as at least one
claim within the action has merit. See Eden Hannon &
Co. v. Sumitomo Trust & Banking Co., supra, 914 F.2d
556; Trustees of University of Pennsylvania v. St. Jude
Children’s Research Hospital, supra, 940 F. Supp. 2d
233;; In re Flonase Antitrust Litigation, supra, 795 F.
Supp. 2d 311–12; Dentsply International, Inc. v. New
Technology Co., supra, United States District Court,
Docket No. 96-272 (MMS). Because we conclude that
a reasonable litigant could appeal the approval of the
third application solely on the basis of the missing traf-
fic impact study, we conclude that Ahuja’s appeal of
the approval of the third application was not objectively
baseless. Therefore, the defendants met their burden
to show that no genuine issue of material fact existed.
II
The plaintiff next claims that the court misinterpreted
the sham exception under the Noerr-Pennington doc-
trine. Specifically, the plaintiff asserts that ‘‘objectively
baseless’’ is not the proper standard for sham exception
applicability. The plaintiff argues that because the chal-
lenged petitioning activity consists of several legal pro-
ceedings rather than a single proceeding, and that the
defendants also engaged in significant, allegedly ill
motivated and false communications to nongovernmen-
tal individuals and entities, the court also should have
taken into account the defendants’ subjective motiva-
tions and intentions. We disagree.
The plaintiff proposes that this court should develop
a new sham exception analysis under the Noerr-Pen-
nington doctrine that takes into account both the objec-
tive reasonableness of petitioning activity as well as the
subjective intent of the party engaging in the petitioning
activity. The plaintiff did not ask the trial court to fash-
ion a new sham exception analysis or to apply such
an analysis to the facts at hand. Rather, the plaintiff
unequivocally asserted to the trial court in its ‘‘Response
to Defendants’ Motion for Summary Judgment’’ that
‘‘the correct test to apply to this matter is the pattern
test from California Motor Transport [Co.] v. Trucking
Unlimited, [supra, 404 U.S. 508].’’9
Regardless of the plaintiff’s request to this court to
fashion a new sham exception analysis, we conclude
that the trial court applied the correct analysis from
Professional Real Estate Investors, Inc. As aforemen-
tioned, in Professional Real Estate Investors, Inc., the
United States Supreme Court outlined a two part analy-
sis under which to analyze whether petitioning activity
under the Noerr-Pennington doctrine should be classi-
fied as a sham and, therefore, unprotected. In setting
forth the sham exception analysis, the court empha-
sized that ‘‘[o]nly if challenged litigation is objectively
meritless may a court examine the litigant’s subjective
motivation.’’ Professional Real Estate Investors, Inc. v.
Columbia Pictures Industries, Inc., supra, 508 U.S. 60.
About twenty years before the court’s holding in Profes-
sional Real Estate Investors, Inc., the court had ana-
lyzed the sham exception in California Motor Trans-
port Co. v. Trucking Unlimited, supra, 404 U.S. 508.
In California Motor, the court explained that sham
litigation occurs where ‘‘a pattern of baseless, repetitive
claims . . . emerge[s] which leads the factfinder to
conclude that the administrative and judicial processes
have been abused.’’ Id., 513.
Following California Motor, a line of circuit court
cases held that, although the Professional Real Estate
Investors, Inc. test is well suited for a sham exception
analysis involving one underlying proceeding, it is not
conducive to an analysis involving a series of legal pro-
ceedings and, therefore, the California Motor sham
exception analysis should apply in scenarios involving
the latter. For example, in Hanover 3201 Realty, LLC
v. Village Supermarkets, Inc., 806 F.3d 162, 180–81 (3d
Cir. 2015), the United States Court of Appeals for the
Third Circuit held that ‘‘when a party alleges a series of
legal proceedings, we conclude that the sham exception
analysis from California Motor should govern. This
inquiry asks whether a series of petitions were filed
with or without regard to merit and for the purpose
of using the governmental process (as opposed to the
outcome of that process) to harm a market rival and
restrain trade. In deciding whether there was such a
policy of filing petitions with or without regard to merit,
a court should perform a holistic review that may
include looking at the defendant’s filing success . . .
as circumstantial evidence of the defendant’s subjective
motivations. . . . Courts should also consider other
evidence of bad-faith as well as the magnitude and
nature of the collateral harm imposed on plaintiffs by
defendants’ petitioning activity . . . .’’ (Citations omit-
ted; internal quotation marks omitted.) Similarly, the
United States Court of Appeals for the Second Circuit
noted that, when applying the sham exception analysis
from California Motor, the relevant issue is ‘‘whether
the legal challenges are brought pursuant to a policy
of starting legal proceedings without regard to the mer-
its and for the purpose of injuring a market rival.’’ (Inter-
nal quotation marks omitted.) Primetime 24 Joint Ven-
ture v. National Broadcasting Co., 219 F.3d 92, 101 (2d
Cir. 2000); see also Waugh Chapel South, LLC v. United
Food & Commercial Workers Union Local 27, 728 F.3d
354 (4th Cir. 2013); USS-POSCO Industries v. Contra
Costa County Building & Construction Trades Coun-
cil, AFL-CIO, 31 F.3d 800 (9th Cir. 1994).
Here, the court concluded that the test set forth in
Professional Real Estate Investors, Inc. was the correct
standard to apply to the sham exception to the Noerr-
Pennington doctrine. The court stated that the plain-
tiff’s request that the court apply the California Motor
analysis ‘‘is based largely on a line of cases interpreting
the United States Supreme Court precedent to limit the
scope of Professional Real Estate Investors, Inc. to
circumstances not present [in the present case]. [The
plaintiff] relies on the Supreme Court decision in Cali-
fornia Motor . . . a case decided more than twenty
years before Professional Real Estate Investors [Inc.],
but understood by some federal courts to provide an
alternative ‘sham’ analysis in cases involving ‘multiple’
acts of petitioning activity—which includes the present
case, according to [the plaintiff].10 [The plaintiff] insists
that because the sham exception described analysis in
California Motor requires inquiry into [the] defendants’
subjective motivations and intentions, this case cannot
be resolved by summary judgment. . . . The Califor-
nia Motor analysis advanced by [the] plaintiff applies a
more ‘holisitic’ inquiry than the two part test applicable
under Professional Real Estate Investors [Inc.] to peti-
tioning activity involving single underlying proceed-
ings.’’ (Footnote added.) The court rejected the plain-
tiff’s argument and instead applied the two part analysis
articulated in Professional Real Estate Investors, Inc.
On the basis of our plenary review of the record, we
conclude that the court applied the correct analysis for
the sham exception. The cases relied on by the plaintiff
suggest that in order for a court to apply the more
holistic California Motor analysis, the petitioning activ-
ity must consist of a ‘‘pattern’’ or ‘‘series’’ of legal pro-
ceedings. Particularly, many of the courts that have
applied the California Motor analysis rather than the
two part test set forth in Professional Real Estate
Investors, Inc. have done so in cases that have con-
cerned quantities of proceedings that far outnumber
those in the present case. See, e.g., Waugh Chapel
South, LLC v. United Food & Commercial Workers
Union Local 27, supra, 728 F.3d 354 (court applied
California Motor sham exception analysis in case
involving fourteen underlying proceedings); USS-
POSCO Industries v. Contra Costa County Building &
Construction Trades Council, AFL-CIO, supra, 31 F.3d
800 (court relied on California Motor analysis when
petitioning activity included twenty-nine lawsuits).
Further, in its memorandum of decision, the court
aptly pointed to a number of cases in which courts
have applied the Professional Real Estate Investor, Inc.
analysis to cases involving more than one underlying
proceeding. In particular, the court referred to ERBE
Elektromedizin GmbH v. Canady Technology, LLC, 629
F.3d 1278, 1291–92 (Fed. Cir. 2010) (court declined to
apply holistic analysis to three underlying lawsuits);
Amarel v. Connell, 102 F.3d 1494, 1519–20 (9th Cir.
1997) (court held that two underlying lawsuits did not
trigger California Motor analysis); Polaris Industries,
Inc. v. Arctic Cat, Inc., United States District Court,
Docket No. 15-4475 (JRT/FLN) (D. Minn. March 29,
2017) (court held that three cases did not amount to
series of legal proceedings requiring application of Cali-
fornia Motor sham analysis); and In re Flonase Anti-
trust Litigation, supra, 795 F. Supp. 2d 300 (court
declined to apply California Motor test to five underly-
ing petitions). Similarly, in Zeller v. Consolini, supra,
59 Conn. App. 545, this court applied the two part analy-
sis from Professional Real Estate Investors, Inc., to a
case with three underlying proceedings.
The present case involved only three zoning appeals.
The plaintiff has not demonstrated, therefore, that the
approach set forth in California Motor should have
been applied. We agree with the trial court that a court
has never applied the California Motor sham exception
analysis in a case involving so few proceedings.11 We,
therefore, agree that the trial court properly applied
the two part analysis from Professional Real Estate
Investors, Inc., in rendering summary judgment in favor
of the defendants.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Gurpreet Ahuja died on December 28, 2016, several months after the
commencement of this action, and the executor of her estate has been
substituted as a defendant.
2
See Zeller v. Consolini, 59 Conn. App. 545, 758 A.2d 376 (2000), for a
discussion of this doctrine.
3
The seventh count, alleging tortious interference with business expecta-
tions, was subsequently withdrawn and is not at issue in this appeal. Like-
wise, the court found that ‘‘[t]here are limited allegations incorporated in
the first six counts regarding what [the] plaintiff labels ‘nonpetitioning activ-
ity’ . . . but the court is under the impression that those allegations are
intended to establish [the] defendants’ motive and intentions underlying the
petitioning activity. Only the seventh count seeks damages allegedly caused
by the nonpetitioning activity.’’ On appeal, the plaintiff does not raise a claim
of error with respect to this aspect of the court’s decision. The plaintiff’s
only reference to the nonpetitioning activity as it relates to counts one
through six is in a footnote in its brief. Therein, the plaintiff states, in a
conclusory fashion, that its counts of abuse of process and violation of
CUTPA were pleaded on the basis of the defendants’ nonpetitioning activity,
and that both counts were ‘‘perfectly viable without any requirement that
the underlying claim be objectively baseless.’’ The plaintiff does not sepa-
rately brief these issues within the body of its brief nor offer sufficient
authority in support of its proposition. Therefore, we conclude that this
portion of the plaintiff’s argument is not sufficiently briefed in accordance
with our briefing requirements and we consider these claims abandoned.
See Clelford v. Bristol, 150 Conn. App. 229, 233, 90 A.3d 998 (2014) (‘‘It is
well settled that [w]e are not required to review claims that are inadequately
briefed. . . . We consistently have held that [a]nalysis, rather than mere
abstract assertion, is required in order to avoid abandoning an issue by
failure to brief the issue properly. . . . [F]or this court judiciously and
efficiently to consider claims of error raised on appeal . . . the parties must
clearly and fully set forth their arguments in their briefs. We do not reverse
the judgment of a trial court on the basis of challenges to its rulings that
have not been adequately briefed. . . . The parties may not merely cite a
legal principle without analyzing the relationship between the facts of the
case and the law cited. . . . [A]ssignments of error which are merely men-
tioned but not briefed beyond a statement of the claim will be deemed
abandoned and will not be reviewed by this court.’’ (Internal quotation
marks omitted.)).
4
The trial court determined that Ahuja’s appeal of the plaintiff’s first
application was immunized under the Noerr-Pennington doctrine, and was
not objectively baseless and, therefore, not subject to the doctrine’s sham
exception. In its appellate brief, the plaintiff has not set forth a claim of
error with respect to the court’s ruling regarding Ahuja’s appeal of the first
application and, therefore, we decline to review it on appeal.
5
The portion of § 8-7d that was relevant in Carberry provides: ‘‘Notice
of the hearing shall be published in a newspaper having a general circulation
in such municipality where the land that is the subject of the hearing is
located at least twice, at intervals of not less than two days, the first not
more than fifteen days or less than ten days and the last not less than two
days before the date set for the hearing.’’ General Statutes § 8-7d (a). The
court did not address the specific language of the statute in coming to
its conclusion.
6
At the time of the public hearing in Roncari Industries, § 8-3 (a) required
that ‘‘[n]otice of the time and place of such [public] hearing shall be published
in the form of a legal advertisement appearing in a newspaper having a
substantial circulation in such municipality at least twice at intervals of not
less than two days, the first not more than fifteen days nor less than ten
days and the last not less than two days, before such hearing . . . .’’ General
Statutes (Rev. to 2001) § 8-3 (a).
7
As noted in Judge Berger’s January 4, 2013 memorandum of decision,
‘‘[u]nlike most zoning commissions . . . planning and zoning in Stamford
[is] governed by 26 Spec. Laws 1228, No. 619, hereinafter referred to as the
Stamford Charter (1953), rather than by the General Statutes.’’
8
The plaintiff asserts, and we agree, that the court did not refer to Roncari
Industries in its memorandum of decision. The court did, however, refer
to Judge Berger’s decision, which contained analyses of both Roncari Indus-
tries and Carberry.
9
The sham exception analysis set forth by California Motor Transport
Co. v. Trucking Unlimited, supra, 404 U.S. 508, is discussed subsequently
in this opinion.
10
The plaintiff also urges that in holistically assessing the defendants’
subjective motivations, we should also consider their allegedly false, nonpeti-
tioning activities directed to nongovernmental agencies to foster opposition
to the plaintiff’s proposed development. The plaintiff does not offer any
authority in support of this argument. As previously noted, the court, in
finding that none of the defendants’ litigation was baseless, did not need
to consider the defendants’ subjective motivations, which is the second part
of the test set forth in Professional Real Estate Investors, Inc.
11
To our knowledge, the California Motor sham exception analysis was
applied once in the context of an action involving four proceedings. See
Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., supra, 806 F.3d
162. The court, however, provided little reasoning for such application.
The court noted ‘‘we do not set a minimum number requirement for the
applicability of California Motor or find that four sham petitions will always
support the use of California Motor.’’ Id., 181. The plaintiff’s reliance on
this case does not persuade this court to abandon the two part analysis set
forth in Professional Real Estate Investors, Inc.