Loch View, LLC v. Windham

***********************************************
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.
***********************************************
LOCH VIEW, LLC v. TOWN OF WINDHAM
(AC 44169)
Bright, C. J., Suarez and Vertefeuille, Js.

Syllabus

The plaintiff appealed from the trial court’s denial of its motion to open the
judgment dismissing its 2019 action against the defendant town regarding
a municipal tax dispute, claiming that the court failed to exercise its
discretion in ruling on that motion or, in the alternative, that it abused
its discretion. The court had dismissed the 2019 action pursuant to the
prior pending action doctrine, on the basis that the plaintiff had filed a
previous action in 2016 against the defendant which had not been
resolved and the two actions were virtually alike, both actions having
been brought to adjudicate the same underlying rights and factual claims.
Thereafter, the trial court in the 2016 action denied the plaintiff’s request
for leave to amend its complaint to add a count alleging the constitutional
violations that it had asserted in the 2019 action, and the court in the
2019 action denied the plaintiff’s motion to open the judgment. Held
that the trial court exercised its discretion in denying the plaintiff’s
motion to open, as it considered and rejected the change in circum-
stances identified by the plaintiff in its motion, and the court did not
abuse its discretion in concluding that the court’s denial of the plaintiff’s
request to amend its complaint in the 2016 action did not require that
the judgment of dismissal in the 2019 action be opened; moreover, the
plaintiff could still fully and fairly litigate its constitutional claims in the
2016 action, as the plaintiff raised an identical constitutional argument
as a special defense to the defendant’s counterclaim in the 2016 action
and the fact that the plaintiff was forced to make its constitutional claim
defensively instead of affirmatively did not affect the plaintiff’s ability
to litigate those arguments; furthermore, the court properly considered
the interests of judicial economy and efficiency and the need to avoid
duplicative litigation and conflicting results in denying the plaintiff’s
motion to open.
Argued November 18, 2021—officially released April 19, 2022

Procedural History

Action to recover damages for the defendant’s alleged
violation of certain of the plaintiff’s constitutional
rights, and for other relief, brought to the Superior Court
in the judicial district of Hartford, where the court,
Budzik, J., granted the defendant’s motion to dismiss
and rendered judgment thereon; thereafter, the court
denied the plaintiff’s motion to open the judgment, and
the plaintiff appealed to this court. Affirmed.
Richard P. Weinstein, with whom, on the brief, was
Sarah Black Lingenheld, for the appellant (plaintiff).
Eric W. Callahan, with whom, on the brief, was Rich-
ard S. Cody, for the appellee (defendant).
Opinion

BRIGHT, C. J. In this action that arose out of a munici-
pal tax dispute, the plaintiff, Loch View, LLC, appeals
from the judgment of the trial court denying its motion
to open, modify, and vacate the judgment dismissing the
its action against the defendant, the town of Windham.1
Specifically, the plaintiff contends that the court either
failed to exercise its discretion or abused its discretion
in denying its motion to open.2 We affirm the judgment
of the trial court.
The following facts, as summarized in the court’s
memorandum of decision, and procedural history are
relevant to our disposition of this appeal. ‘‘On July 2,
2009, [the plaintiff] and [the defendant] entered into a
written tax fixing agreement [agreement] whereby [the
defendant] agreed to set municipal taxes on two parcels
of property on Main Street in Windham at a discounted
rate in exchange for [the plaintiff] taking over the prop-
erties and investing a certain amount of money into the
redevelopment of those properties. To ensure that [the
plaintiff was] meeting its obligations under the tax fix-
ing agreement, the agreement require[d] [the plaintiff]
to provide periodic reports and documentary evidence
to [the defendant] demonstrating that [the plaintiff was]
in fact making the required investments in the proper-
ties. The [agreement] provide[d] [the defendant] with
the right to cancel the [agreement] and recoup any tax
benefits provided to [the plaintiff] should [the defen-
dant] determine that [the plaintiff was] not living up to
its investment commitments. In 2016, [the defendant]
determined that [the plaintiff] was not living up to its
obligations under the [agreement] and therefore [the
defendant] sought to exercise what [it] viewed as its
right to retroactively reassess the relevant properties
in order to recoup the tax benefits provided to [the
plaintiff] under the agreement.’’
Thereafter, in Loch View, LLC v. Windham, Superior
Court, judicial district of Hartford, Docket No. CV-16-
6149827-S, the plaintiff commenced an action challeng-
ing the defendant’s termination of the agreement and
its attempt to retroactively assess the relevant parcels
and charge the plaintiff back taxes (2016 action). The
plaintiff specifically alleged that (1) the defendant’s tax
assessments were ‘‘manifestly excessive,’’ (2) the defen-
dant failed to ‘‘apply uniform percentages to the present
true and actual valuation of the properties,’’ in violation
of General Statutes § 12-64,3 and (3) the valuation of
the plaintiff’s two parcels of property was grossly and
manifestly excessive, in violation of the equal protec-
tion clause of the state constitution.
The plaintiff subsequently requested and was granted
leave to amend its complaint five times in the 2016
action to add additional counts arising out of the defen-
dant’s retroactive adjustment of taxes with respect to
additional tax years. Through those amended complaints,
the plaintiff also added counts that (1) alleged that the
defendant breached the agreement, (2) alleged that the
defendant breached the obligation of good faith and
fair dealing with respect to its enforcement of the agree-
ment, (3) demanded a declaratory judgment seeking to
declare illegal and void the defendant’s retroactive
assessment, (4) sought injunctive relief arising out of
the defendant’s enforcement of the contract, and (5)
alleged that, in the event that the defendant was permit-
ted to retroactively assess the plaintiff’s taxes, the plain-
tiff sought a refund for its overpayment of taxes.
On April 30, 2019, the defendant filed a counterclaim
in the 2016 action, alleging that the plaintiff had breached
the agreement and that the defendant was therefore
‘‘entitled to recapture a sum equal to the financial bene-
fit the plaintiff received as a result of reduced tax levies
. . . .’’ The defendant specifically alleged that the plain-
tiff had failed (1) to meet the financial requirements of
the agreement, (2) to pay recaptured taxes pursuant to
the agreement, (3) to accurately account for the cost
of work done on the parcels, and (4) to provide the
town with thorough and semiannual reports pursuant
to the agreement. Thereafter, on October 21, 2021, the
plaintiff filed an answer to the defendant’s counterclaim
and asserted eight special defenses, including a special
defense that the defendant’s actions in terminating the
agreement deprived the plaintiff of its constitutional
right to challenge the tax assessment and violated its
procedural and substantive due process rights.
In 2019, while the 2016 action was pending,4 the plain-
tiff filed the action underlying this appeal, alleging in
a single count that it had been deprived of its constitu-
tional rights, privileges, and immunities (2019 action).
The 2019 action specifically alleged that the defendant’s
cancellation of the tax fixing agreement was ‘‘improper,
illegal, arbitrary, and capricious,’’ that it violated the
plaintiff’s state and federal due process rights, and that
it constituted a taking under the United States and Con-
necticut constitutions. Given that the complaint alleged
several federal law claims, the defendant removed the
case to federal court. Shortly after its removal, however,
the plaintiff filed an amended complaint in state court
that alleged only state law causes of action, and the
case was remanded back to state court. The defendant
then moved to dismiss the 2019 action in its entirety,
pursuant to the prior pending action doctrine, arguing
that the plaintiff’s claims in the 2019 action were dupli-
cative of those in the pending 2016 action.
Thereafter, the court, Budzik, J., issued a memoran-
dum of decision in which it granted the defendant’s
motion to dismiss. In so ruling, the court concluded that
‘‘both cases require resolution of the same underlying
rights and factual claims, specifically, whether [the
defendant] properly exercised its rights under the
[agreement]’’ and, consequently, concluded that the
plaintiff’s 2016 and 2019 actions were virtually alike,
and that, ‘‘under the circumstances of this case,’’ it
was proper for the court to dismiss the 2019 action. In
reaching that decision, the court reasoned: ‘‘First, there
does not appear to be any prejudice to [the plaintiff]
in having the terms of the [agreement] determined in the
context of the 2016 case. Count three of [the plaintiff’s]
operative complaint in the 2016 case squarely alleges
that [the defendant] violated the [agreement]. [The
plaintiff] has offered no reason why the court hearing
the 2016 case cannot properly adjudicate that issue, or
that [the plaintiff] will not have a full and fair opportu-
nity to litigate that issue as part of the 2016 case. Second,
[the plaintiff] has not identified any relief that it is
seeking in this case that it cannot receive in the 2016
case. . . . Finally, this case is in its early stages. There-
fore, it would serve the interests of judicial economy,
avoiding unnecessary litigation, and avoiding conflict-
ing results from different courts to dismiss this case
and have [the plaintiff] litigate its claims over the proper
application of the [agreement] in the 2016 case.’’
Thereafter, the plaintiff filed a request for leave to
amend its complaint in the 2016 action, so that it could
add the constitutional count that it had asserted in the
recently dismissed 2019 action. The court, Cordani, J.,
denied that request as untimely. The plaintiff then filed
a motion to open and vacate the judgment of dismissal
in the 2019 action, alleging that the denial of its request
to amend its complaint in the 2016 action constituted
a good and compelling reason to open the judgment in
the 2019 action. The court denied the plaintiff’s motion
to open, and this appeal followed. Additional facts and
procedural history will be set forth below as necessary.
We first set forth our standard of review and the appli-
cable law. ‘‘The principles that govern motions to open
. . . a civil judgment are well established. Within four
months of the date of the original judgment, Practice
Book [§ 17-4] vests discretion in the trial court to deter-
mine whether there is a good and compelling reason
for its modification or vacation. . . . The exercise of
equitable authority is vested in the discretion of the
trial court . . . to grant or to deny a motion to open
a judgment.’’ (Internal quotation marks omitted.) New-
town v. Ostrosky, 191 Conn. App. 450, 468, 215 A.3d
1212, cert. denied, 333 Conn. 925, 218 A.3d 68 (2019).
If a court fails to exercise its discretion in ruling on a
motion to open, that failure to do so is error. See Hig-
gins v. Karp, 243 Conn. 495, 504, 706 A.2d 1 (1998); see
also State v. Lee, 229 Conn. 60, 73–74, 640 A.2d 553
(1994) (‘‘[i]n the discretionary realm, it is improper for
the trial court to fail to exercise its discretion’’).
When a court exercises its discretion in ruling on a
motion to open, we review the court’s decision for an
abuse of discretion. See, e.g., Dimmock v. Allstate Ins.
Co., 84 Conn. App. 236, 241, 853 A.2d 543, cert. denied,
271 Conn. 923, 859 A.2d 577 (2004). ‘‘In determining
whether the trial court abused its discretion, this court
must make every reasonable presumption in favor of
its action. . . . The manner in which [this] discretion
is exercised will not be disturbed so long as the court
could reasonably conclude as it did.’’ (Internal quota-
tion marks omitted.) In re Travis R., 80 Conn. App.
777, 782, 838 A.2d 1000, cert. denied, 268 Conn. 904,
845 A.2d 409 (2004); see also Hall v. Hall, 335 Conn.
377, 396, 238 A.3d 687 (2020) (trial courts enjoy ‘‘broad
discretion’’ in determining whether to grant motion to
open).
‘‘The prior pending action doctrine permits the court
to dismiss a second case that raises issues currently pend-
ing before the court. The pendency of a prior suit of
the same character, between the same parties, brought
to obtain the same end or object, is, at common law,
good cause for abatement. It is so, because there cannot
be any reason or necessity for bringing the second
[action], and, therefore, it must be oppressive and vexa-
tious. This is a rule of justice and equity, generally
applicable, and always, where the two suits are virtually
alike, and in the same jurisdiction.’’ (Internal quotation
marks omitted.) Cumberland Farms, Inc. v. Groton,
247 Conn. 196, 216, 719 A.2d 465 (1998). Under the
prior pending action doctrine, the court must determine
‘‘whether the two actions are: (1) exactly alike, i.e., for
the same matter, cause and thing, or seeking the same
remedy, and in the same jurisdiction; (2) virtually alike,
i.e., brought to adjudicate the same underlying rights
of the parties, but perhaps seeking different remedies;
or (3) insufficiently similar to warrant the doctrine’s
application. . . . If the two actions are exactly alike
or lacking in sufficient similarities, the trial court has
no discretion. In the former case, the court must dismiss
the second action, and in the latter instance, the court
must allow both cases to proceed unabated. Where the
actions are virtually, but not exactly alike, however, the
trial court exercises discretion in determining whether
the circumstances justify dismissal of the second
action.’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) Bayer v. Showmotion, Inc.,
292 Conn. 381, 397–98, 973 A.2d 1229 (2009); see also
id., 403–404 (holding that, when actions are virtually
alike, it is proper to dismiss later action if nonmoving
party will not be prejudiced, nonmoving party will have
opportunity to litigate claims in prior action, prior
action provides remedy for claims, and dismissal of
later action serves policy interests behind prior pending
action doctrine).
On appeal, the plaintiff first claims that the court erred
when it denied the plaintiff’s motion to open because
the court failed to exercise its discretion when it ruled
on the motion. We disagree.
In its order denying the plaintiff’s motion to open, the
court stated: ‘‘The fact that the [court in the 2016 action]
exercised its discretion to limit amendments and denied
[the] plaintiff’s request to amend as untimely because
the plaintiff waited some [four] years to assert a pur-
ported constitutional claim does not change this court’s
analysis on the motion to dismiss that the same underly-
ing facts are at issue in both the [2016 action] and this
case and, thus, there is no basis to open the judgment
resulting from this court’s ruling on the motion to dis-
miss.’’ (Emphasis added.)
On the basis of this order, we conclude that, contrary
to the plaintiff’s claim, the court’s ruling reflects that
it exercised its discretion when it denied the plaintiff’s
motion. By stating that the plaintiff’s inability to amend
its complaint in the 2016 action did not change the
court’s analysis with regard to its judgment dismissing
the 2019 action, the court was essentially saying that
it had considered the change in circumstances identi-
fied by the plaintiff but that it did not conclude as a
matter of law that the change provided a sufficient basis
for the court to open the judgment. Thus, because the
court considered, and rejected, the change in circum-
stances identified by the plaintiff in its motion, the court
exercised its discretion in denying that motion.
The plaintiff next claims that, in the event that the
court exercised its discretion when ruling on the plain-
tiff’s motion, it abused that discretion when it denied
the motion. We are not persuaded.
Initially, we observe that the court was not required
to consider how the plaintiff chose to prosecute the
2016 action or the rulings made by the court in that
case when deciding the plaintiff’s motion to open. It is
undisputed that both actions arose out of the same
facts. For whatever reason, when the plaintiff filed its
2016 action it did not allege the constitutional claim
that it later asserted in the 2019 action. It also did not
seek to amend its complaint in the 2016 action to assert
that claim before bringing the 2019 action. The litigation
strategy the plaintiff pursued came with attendant risks,
and the court in the 2019 action was not required to
grant the plaintiff’s motion to open to save the plaintiff
from the consequences of those risks. Furthermore, the
court in the present case was not required to effectively
undo the denial of the motion to amend by the court
in the 2016 action that was found to be untimely and
prejudicial to the defendant.5 Parties are not entitled
to subvert the decisions of one court by going to a
separate court for relief from those decisions, as would
have been the case here had the court granted the
plaintiff’s motion to open. Finally, to the extent the
plaintiff does not prevail in the 2016 action and believes
that the court abused its discretion in denying its motion
to amend, it can seek appropriate relief on appeal in
that action.
We also are unpersuaded by the plaintiff’s argument
that the court’s refusal to open the judgment dismissing
the 2019 action constituted an abuse of discretion
because that decision prejudiced the plaintiff by leaving
it without a forum in which to adjudicate its constitu-
tional claim. In the plaintiff’s October 21, 2021 answer
to the defendant’s counterclaim, the plaintiff raised the
same constitutional argument that it sought to raise in
the 2019 action but as a special defense instead of an
affirmative claim.6 In that special defense, the plaintiff
alleged that ‘‘the defendant’s actions in retroactively
terminating the contract and then simultaneously retro-
actively reassessing or imposing additional taxes for all
the years covered by the contract deprived the plaintiff
of its constitutional rights to challenge the amount of
the tax reassessment, and was done in a way which
violated both procedural and substantive due process.’’
This language closely tracks with the constitutional
arguments that the plaintiff asserted in its 2019 action,
wherein it alleged that ‘‘[t]he actions and conduct of
the [defendant] constituted a taking7 [in violation of the
state constitution]’’ and ‘‘the [defendant’s position] that
the plaintiff is without recourse to take any action to
seek review and determination by the courts in regard
to [the defendant’s] wrongful action, constitutes a viola-
tion of . . . due process of law. . . .’’ (Footnote
added.)
We do not think that the fact that the plaintiff must
make its constitutional claim defensively, instead of
affirmatively, affects the plaintiff’s ability to litigate its
constitutional arguments in the 2016 action. Indeed,
regardless of whether its constitutional argument is
made as a defense or as an affirmative claim, the plain-
tiff will need to prove the same things to prevail. Addi-
tionally, the remedy sought—the nonpayment of the
back taxes—is the same regardless of how, procedur-
ally, the plaintiff’s constitutional argument is raised. In
fact, at oral argument before this court, the plaintiff
was unable to explain how the affirmative claim that
it sought to raise in the 2019 action was substantively
different from the constitutional defense that it has
alleged in the 2016 action.8 Thus, because the plaintiff
still can fully and fairly litigate its constitutional argu-
ments in the 2016 action, we disagree with the plaintiff’s
contention that the court in the present case left it
without a forum in which to make those arguments.
Accordingly, there cannot be an abuse of discretion on
that basis.
Finally, the policy concerns that the court considered
when dismissing the 2019 action—including the inter-
ests in judicial economy and efficiency and the need
to avoid duplicative litigation and conflicting results—
all remained relevant considerations when it considered
the motion to open. Thus, the continued relevance of
these policy concerns further supports our conclusion
that the court’s decision to deny the plaintiff’s motion
to open was not an abuse of discretion.
For these reasons, we conclude that the court did
not abuse its discretion in concluding that the court’s
denial of the plaintiff’s request to amend its complaint
in the 2016 action did not require that the court open
the judgment of dismissal in the 2019 action.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In its initial complaint, the plaintiff also named Chandler Rose, town
assessor, and Gay A. St. Louis, town collector of revenue, as defendants.
According to the plaintiff, those defendants were ‘‘inadvertently omitted
from the summons’’ that was filed in the action. The plaintiff states that
both Rose and St. Louis were eventually made parties to the action but that
they were never listed as parties on the electronic docket maintained by
the Judicial Branch. In its memorandum of decision, the court did refer to
Rose and St. Louis as defendants. Neither Rose nor St. Louis, however, has
participated in this appeal. All references to the defendant in this opinion
are to the town of Windham.
2
The plaintiff also initially appealed the court’s decision granting the
defendant’s motion to dismiss. That appeal, however, was dismissed by this
court as untimely. Because the plaintiff does not challenge the merits of the
dismissal in the present appeal, we do not address the merits of that ruling.
3
General Statutes § 12-64 (a) provides in relevant part: ‘‘All the following
mentioned property, not exempted, shall be set in the list of the town where
it is situated and, except as otherwise provided by law, shall be liable to
taxation at a uniform percentage of its present true and actual valuation,
not exceeding one hundred per cent of such valuation, to be determined
by the assessors: Dwelling houses, garages, barns, sheds, stores, shops,
mills, buildings used for business, commercial, financial, manufacturing,
mercantile and trading purposes, ice houses, warehouses, silos, all other
buildings and structures, house lots, all other building lots and improvements
thereon and thereto, including improvements that are partially completed
or under construction, agricultural lands, shellfish lands, all other lands and
improvements thereon and thereto, quarries, mines, ore beds, fisheries,
property in fish pounds, machinery and easements to use air space whether
or not contiguous to the surface of the ground. . . .’’
4
At the time of oral argument in this appeal, the 2016 action was still pend-
ing.
5
When denying the plaintiff’s request to amend its complaint in the 2016
action, the court stated in relevant part: ‘‘[T]he court finds that the sixth
amended complaint was not timely filed and there is no suitable justification
for its untimeliness. Further, the pleadings are closed and a further amend-
ment to the complaint asserting a new count and new claims would be
prejudicial to the defendant. As such, the court respectfully declines the
plaintiff’s request to file a sixth amended complaint.’’
6
As the plaintiff conceded at oral argument before this court, the constitu-
tional arguments in both the 2016 and the 2019 actions are, in essence,
the same. More specifically, in both actions the plaintiff argues that the
application of a one year statute of limitations to its claims unconstitutionally
bars the plaintiff from challenging the defendant’s imposition of back taxes.
7
The fact that the plaintiff’s special defense to the defendant’s counter-
claim in the 2016 action does not explicitly mention a takings claim does
not affect our analysis, as the plaintiff’s claim in its special defense that the
defendant’s retroactive adjustments ‘‘deprived it of its constitutional right
to challenge the amount of the tax assessment’’ is the functional equivalent
of such a claim.
8
Indeed, the plaintiff could identify only one difference between the con-
stitutional arguments that it sought to make in the 2016 and 2019 actions,
which was that, if it was allowed to assert an affirmative constitutional
claim, it might be able to recover costs and attorney’s fees, while if the
claim was made defensively, such relief would be unavailable. We, however,
do not think that the possibility for the plaintiff to recover costs and fees
in the 2019 action provides a sufficient reason to conclude that the court
abused its discretion when it denied the plaintiff’s motion to open.