Opinion
No. FBT CV 08-5016906 S
September 27, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#123)
Preliminary Statement
The plaintiffs in this negligence action seek damages against defendant Waikele Properties, Corp (Waikele), as well as the City of Bridgeport arising out of the City's foreclosure on the plaintiffs' property and Waikele's subsequent purchase of the property. The suit against Waikele was commenced as an action to quiet title to the property. That claim was resolved in favor of the plaintiffs by way of summary judgment. Thereafter, plaintiffs sought to amend their complaint to include negligence and other claims against Waikele. Permission to do so was granted over Waikele's objection. Waikele filed a motion for summary judgment, claiming among other things, that the counts contained in the amended complaint are barred by the doctrine of res judicata. For the reasons set forth below, the motion is GRANTED.
Standard of Review
A party seeking summary judgment has the very heavy burden of demonstrating the absence of any genuine issue of material facts which, under applicable principles of law, entitle him to judgment as a matter of law. PB § 17-44; Appleton v. Board of Education, 254 Conn. 205 (2000). Conversely, the party opposing such a motion must provide an evidentiary foundation to show the existence of a genuine issue of material fact. Id. This evidentiary foundation must be demonstrated with counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997). A party's conclusory statements may not be sufficient to establish the existence of a disputed material fact, even if in affidavit form. Gupta v. New Britain General Hospital, 239 Conn. 574, 583 (1996).
Supporting and opposing affidavits must be made on personal knowledge and must set forth such facts as would be admissible in evidence. PB § 17-46. Indeed, only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. Great Country Bank v. Pastore, 241 Conn. 423, 436 (1997).
Undisputed Facts
The facts underlying Waikele's special defense all derive from the procedural history of this case and are not in dispute. At issue is whether the doctrine of res judicata, when applied to those undisputed facts, serves as a bar to plaintiffs' recovery.
This action was commenced by filing of the writ, summons and complaint on June 26, 2008. The complaint sounded in four counts: count one was an action to quiet title in which defendant Waikele was named; counts two and three were against the City for both negligence as well as derogations of both statutory and constitutional rights; count four sounded in negligence against Wells Fargo, a mortgagee on the property. The action arises out of a previous foreclosure by the City of Bridgeport on the subject property. That matter proceeded to a judgment of foreclosure. Thereafter, the City sold the property to Waikele.
Prior to commencing the instant action, the plaintiffs filed a motion to reopen the foreclosure judgment. Subsequent to the bringing of this action, on October 24, 2008, the court (Blawie, J.) granted the motion, vacated the judgment and dismissed the foreclosure action.
The court takes judicial notice of the court's file in that matter which was docketed as CV 06-5004804 S, City of Bridgeport v. List of 41 Parcels, et al.
After the foreclosure action was dismissed, the plaintiffs sought summary judgment in this matter as to count one, which sought a determination that Waikele did not have an interest in the property and sought to quiet title in favor of the plaintiffs. Waikele did not object to the motion for summary judgment. Summary judgment was granted as to count one on May 26, 2009. Thereafter "Judgment without trial" entered on July 29, 2009. No appeal was taken from this judgment. No motion to open the judgment or otherwise attack its validity has been filed.
This case remained pending with two counts against the City of Bridgeport and one count against Wells Fargo. In April 2010, the plaintiffs filed a motion for permission to amend the complaint and a proposed amended complaint. The proposed amendment included five counts. Count one, inexplicably, was identical to count one in the initial complaint — the count on which judgment had already entered in favor of the plaintiffs. Count two sounded in negligence against Waikele. Counts three, four and five contained the previously brought claims against the City and Wells Fargo. Waikele objected to the motion to amend on the grounds that since judgment as to the only count in the initial complaint had entered, there was no complaint against it to amend. The court overruled the objection without issuing a memorandum of decision.
Waikele asserted a special defense of res judicata, as to which it now seeks summary judgment. The plaintiffs object.
Discussion
As indicated, Waikele seeks summary judgment as to count two on the ground that this count, being pursued subsequent to the initial complaint going to judgment, is barred by the doctrine of res judicata. The claim is, in essence, that count two could have been brought in the initial complaint; that the parties are identical; that the initial complaint resulted in a judgment on the merits; and that therefore the doctrine of res judicata serves as a bar to litigating this cause of action.
There is no question but that the previous entry of summary judgment as to count one renders any further adjudication of the quiet title count which was included in the Amended Complaint unnecessary.
The doctrine of res judicata, also known as claim preclusion, "prevents a litigant from reasserting a claim that has already been decided on the merits . . . Under claim preclusion analysis, a claim that is, a cause of action — includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose . . . Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made . . . Scalzo v. Danbury, 224 Conn. 124, 127-28, 617 A.2d 440 (1992); see DeLaurentis v. New Haven, 220 Conn. 225, 239, 597 A.2d 807 (1991); Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 43, 526 A.2d 1329 (1987). The doctrine of res judicata [applies] . . . as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction; Wade's Dairy, Inc. v. Fairfield, 181 Conn. 556, 559, 436 A.2d 24 (1980); and promotes judicial economy by preventing relitigation of issues or claims previously resolved. Scalzo v. Danbury, supra, 127; Carothers v. Capozziello, 215 Conn. 82, 94, 574 A.2d 1268 (1990). (Emphasis added; internal quotation marks omitted.) Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 188, 629 A.2d 1116 (1993).
DiPietro v. Farmington Sports Arena, 123 Conn.App. 583 (2010).
Connecticut has adopted a "transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage." DiPietro v. Farmington Sports Arena, supra, citing Orselet v. DeMatteo, 206 Conn. 542, 545-46, 539 A.2d 95 (1988).
Of course, a threshold determination is whether there has been a prior judgment on the merits. Here, Waikele relies upon the judgment entered as to count one in July 2009. At that time, count one was the only claim brought against Waikele and as indicated, was an action to quiet title. After judgment entered, Waikele had no pending interest in this matter. Therefore, if the judgment of July 2009 is a judgment for purposes of res judicata analysis, then the court must determine, under the so-called "transaction test" whether count two is barred.
The plaintiffs argue that the doctrine of res judicata has no application to this case because there was no "prior proceeding:"
The court in this same action permitted the Plaintiff over the Defendant's objection to amend his complaint to include a negligence claim against the Defendant, Waikele. (Second Count) No new action was started, (sic) instead the instant action was amended. The Plaintiffs (sic) negligence claim cannot be precluded by res judicata since a prior action between the parties never existed.
As a preliminary matter, the plaintiffs assert that the court's determination to permit the amendment precludes the defendant's argument here. This court disagrees. In permitting the amendment, the court did not issue a memorandum of decision. It would be therefore speculative to assign any particular finding or determination to that decision. Further, the defendant did not raise a claim of res judicata when it opposed the amendment. While Waikele did rely upon the same procedural defects, i.e. that they were no longer in the case, the court was not asked to decide and did not decide the impact of those arguments on a special defense of res judicata.
For these reasons, this court does not view Judge Arnold's decision as even implicating the "law of the case" doctrine. However, even if the determination to permit the amended complaint was determined to be "law of the case," this court is also mindful that "a decision of one trial judge that declares the law of the case is not a limitation on the power of the second judge in the case to decide otherwise, under appropriate circumstances." CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 403 (1996), citing Breen v. Phelps, 186 Conn. 86, 99 (1982).
The substantive question then is whether the judgment entered in this action is a prior judgment for purposes of res judicata. The plaintiffs' conclusory argument that a separate prior proceeding is a prerequisite to a res judicata bar stands in stark contrast to Connecticut law. Indeed,
ordinarily the doctrine of res judicata operates to preclude the relitigation in one action of a claim or issue that has been determined in a previous, separate action. See, e.g., Advest, Inc. v. Wachtel, supra, 235 Conn. 565-66; Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 713, 627 A.2d 374 (1993). This does not mean, however, that the doctrine cannot operate within the same case.
"A judgment may be final in a res judicata sense as to a part of an action although litigation continues as to the rest. 1 Restatement (Second), Judgments § 13, comment (e)." State v. Aillon, 189 Conn. 416, 425, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S.Ct. 124, 78 L.Ed.2d 122 (1983). In Aillon, we applied the doctrine to bar the relitigation of the defendant's double jeopardy claim, which had been decided adversely to him on a somewhat different theory at an earlier stage of the criminal proceedings against him. Id., 423-29; see also United States v. Ajimura, 598 F.2d 510, 513 (9th Cir. 1979) (second pretrial claim of double jeopardy barred by adverse determination of first claim); Gentile v. Ives, 163 Conn. 281, 282-83, 303 A.2d 714 (1972) (highway commissioner may not collaterally attack, in second proceeding in same case, interest portion of judgment from which no timely appeal had been taken in first instance); Morganti, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., 20 Conn.App. 67, 71-73, 563 A.2d 1055 (1989) (on application to vacate arbitration award, party may not relitigate issue of arbitrability decided adversely on previous request for injunction against arbitration); Gennarini Construction Co. v. Messina Painting Decorating Co., supra, 15 Conn.App. 509-12 (party may not, in second proceeding in same case, relitigate question of interest and attorneys fees decided adversely at earlier stage of proceedings). In each of these cases, the second claim was barred because an appeal had intervened, or could have intervened, between the presentation of the two claims.
CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 388-89 (1996) (emphasis added).
The Supreme Court went on to note that while final judgment for purposes of res judicata is not always identical to final judgment for purposes of appeal, "the traditional standard of finality for purposes of appeal will generally also provide the standard of finality for purposes of preclusion." Id. at 398.
Thus, for purposes of res judicata, a judgment will ordinarily be considered final "if it is not tentative, provisional, or contingent and represents the completion of all steps in the adjudication of the claim by the court, short of any steps by way of execution or enforcement that may be consequent upon the particular kind of adjudication." Id.; see also State v. Aillon, supra, 189 Conn. 425 (appealability of first double jeopardy determination given preclusive effect because "nothing tentative or conditional" about it).
Id. at 399. See also, Listenes v. Listenes, 100 Conn.App. 642, 649 (2007) ("A judgment may be final in a res judicata sense as to a part of an action although litigation continues as to the rest . . . Thus, res judicata may operate to preclude a claim decided in a previous proceeding within the same case"), Massad v. Greeves, 116 Conn.App. 472 (2009) (Order of federal court given res judicata effect following return of action to state court).
Here, there is no question that Waikele could have appealed the granting of summary judgment as to the only count in the complaint brought against it. See, Practice Book § 61-3; Kelly v. City of New Haven, 275 Conn. 580, 592 (2005). It did not do so, but the failure to bring the appeal does not impact the assessment of whether the judgment is final for purposes of res judicata analysis. This court holds that it was a final judgment for purposes of res judicata.
The court must next determine whether the negligence count is barred by the doctrine of res judicata under the so-called "transaction test." As noted above, "What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage." DiPietro v. Farmington Sports Arena, supra, citing Orselet v. DeMatteo, 206 Conn. 542, 545-46 (1988). "`The transactional test of the Restatement [(Second) of Judgments] provides a standard by which to measure the preclusive effect of a prior judgment, which we have held to include any claims relating to the cause of action which were actually made or might have been made . . . In determining the nature of a cause of action for these purposes, we have long looked to the group of facts which is claimed to have brought about an unlawful injury to the plaintiff . . . and have noted that [e]ven though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action.' (Internal quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light Power Co., 300 Conn. 325, 348-49, 15 A.3d 601 (2011)." Summitwood Development, LLC, v. Roberts, 130 Conn.App. 792, 804 (2011). "[T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . ." Id. at 805, citing Connecticut National Bank v. Rytman, 241 Conn. 24, 43-44 (1997). Therefore, the court must compare the allegations in the subsequent proceeding with those in the initial proceeding. Id.
As noted, the initial claim brought against Waikele was an action to quiet title to the property foreclosed upon by the City and thereafter sold to Waikele. The negligence count contained in the Amended Complaint states:
The Defendant, Waikele's . . . action as hereinbefore described, in damaging the Plaintiffs' property, was negligent and careless in that the Defendant Waikele . . . knew or should have known they did not have proper title to the property to excavate the property, in that they did not obtain the proper permit to commence said work on the Plaintiff's (sic) property, and in that they continued to perform work on the Plaintiff's (sic) property after they were informed that they did not have proper title to said property.
Amended Complaint, Count Two, Para. 7. Clearly, the negligence count arises out of the same series of events which gave rise to the action to quiet title. While the action to quiet title sought a determination that Waikele had no interest in the property, the negligence count avers that Waikele knew or should have known it had no interest in the property. The negligence count also includes allegations that Waikele damaged the property through excavation after being notified by plaintiffs that plaintiffs claimed ownership of the property. Under the parameters of the "transaction test" set forth above, this court concludes that count two of the amended complaint is barred by the doctrine of res judicata insofar as it clearly could have been brought along with the action to quiet title and arises out of a "common nucleus of facts" which led to the filing of the action to quiet title. The judgment rendered thereupon being a final judgment for purposes of res judicata, the negligence count is barred. See, Summitwood Development, LLC v. Roberts, 130 Conn.App. 792 (2011) (Upholding determination that the subsequent litigation was barred by the doctrine of res judicata upon application of the transactional test and a comparison between the allegations asserted in each proceeding).
The motion for summary judgment is granted.
The court does not reach the alternative arguments advanced by the defendant in support of its motion for summary judgment.