Kenneth Tassmer et al. v. Vincent McManus et al. (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

On April 22, 2009, the plaintiffs, Kenneth Tassmer and Richard Petrillo, filed a one-count complaint against the defendants, Vincent McManus, Ronald Vance and Carol Vance.   In their revised complaint,¹ the plaintiffs allege the following:  On July 31, 2007, during the pendency of an adverse possession lawsuit, the defendants executed a contract with the plaintiffs to agree to a new boundary line between the Vance's property at 131 Cook Hill Road and the plaintiffs' property at 133 Cook Hill Road, both in Wallingford.   The contract was contingent upon approval of a variance by the Wallingford zoning board of appeals.   The plaintiffs applied for the required variance.   On September 14, 2007, while the application was pending, the defendants filed the contract on the land records of the town of Wallingford as a “Boundary Agreement,” by adding a cover sheet entitled as such, followed by a property description.   Notice of this filing was not given to the plaintiffs, who did not agree that the contract should have been filed on the land records.

The plaintiffs allege that the boundary agreement did not contain an accurate and full description of the land affected by it in violation of General Statutes § 47-33g, did not cite any metes and bounds and did not contain the required variance from the town of Wallingford.   Plaintiffs claim that the title to their property is clouded by the boundary agreement, which was filed for no purpose other than to make their property unmarketable and to slander their title pursuant to General Statutes § 47-33j.   According to the complaint, the boundary agreement maliciously misrepresents and misleads the condition of the plaintiffs' title and does not allow persons to rely on a record chain of their title pursuant to General Statutes § 47-33k.   Furthermore, the plaintiffs allege that defendant McManus, as an officer of the court, knowingly and with malicious intent, filed a misleading boundary agreement impairing the plaintiffs' title without notice.   On July 30, 2009, defendant McManus filed an answer and three special defenses.   In his answer, defendant McManus denied that the boundary agreement did not contain an accurate and full description of the land affected by it, denied that the variance was required, denied that the title to the plaintiffs' property is clouded by the boundary agreement and denied that he knowingly and with malicious intent filed a misleading boundary agreement impairing the plaintiffs' title without notice.   On January 25, 2010, defendant McManus filed six special defenses.²  His sixth special defense alleges that the plaintiffs' claims are barred by the doctrine of res judicata.

On June 23, 2010, defendant McManus filed a motion for summary judgment and memorandum of law in support thereof.   On July 26, 2010, the plaintiffs filed a memorandum of law in opposition to defendant's motion.   On July 30, 2010, the defendant filed a reply to the plaintiffs' memorandum.   The matter was heard at short calendar on August 16, 2010.   For the reasons discussed herein, the court grants the defendant's motion for summary judgment.

DISCUSSION

“[S]ummary judgment is an appropriate vehicle for raising a claim of res judicata ․” (Citations omitted.)  Joe's Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 867 n.8, 675 A.2d 441 (1996).  “Because res judicata ․ may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim of res judicata.”  Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993).

“Practice 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.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”   (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ 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 documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough ․ for the opposing party merely to assert the existence of such a disputed issue.”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   Moreover, “the ․ court must view the evidence in the light most favorable to the nonmoving party.”   (Internal quotation marks omitted.)  Provencher v. Enfield, supra, 284 Conn. 791.

In his memorandum of law in support of his motion for summary judgment, defendant McManus argues that there is no genuine issue as to any material fact and that plaintiffs' claims are barred by the doctrine of res judicata because the plaintiffs previously brought an action against him for tortious interference of a contract.   The defendant contends that a motion for summary judgment was granted on behalf of himself in the previous action and is a final judgment.   He further contends that the present action arises out of the same operative facts as the previous action, namely the recording of the boundary agreement on the land records, and therefore, should have been brought in the previous action.   In support of his motion, defendant McManus submitted:  (1) a copy of the notice of lis pendens;  (2) a copy of the motion to reopen the settlement agreement in the adverse possession action, dated August 30, 2007;  (3) a copy of the warranty deed;  (4) a copy of the quitclaim deed;  (5) a letter from Tassmer to the planning and zoning departments in the town of Wallingford seeking withdrawal of the application for a variance;  (6) a copy of the memorandum of decision on the motion to enforce settlement in the adverse possession action, dated May 8, 2008;  (7) a copy of the amended complaint from the previous action, dated October 27, 2008;  (8) a copy of the memorandum of decision on the motion for summary judgment in the previous action, dated April 8, 2009;  and (9) the affidavit of McManus.

The plaintiffs counter that res judicata should not apply because it, would not advance the policy interests underlying the doctrine.   In particular, the plaintiffs contend that:  (1) the trial court has already determined that the case before it is not vexatious because the court has already determined that it has merit and should be presented to the trier of fact;  (2) the theories of slander of title and tortious interference are so different from each other that there is no danger of inconsistent judgments;  and (3) the policy of judicial economy would not be served because the action before this court is not repetitive.   Furthermore, the plaintiffs contend that the present case should be viewed as an extension and continuation of the previous case.   In particular the plaintiffs contend that the motion for summary judgment granted in the previous action was based, at least partially, on the ground that the allegations in the plaintiffs' complaint were insufficient to support a claim for tortious interference.

Defendant McManus replies that the policy interests cited by the plaintiffs stem from a criminal case, as opposed to a civil case at issue here, and that even taking these policy interests into account, his motion for summary judgment satisfies all three prongs of that test because it:  (1) promotes judicial economy by putting an end to repetitive litigation;  (2) prevents McManus from being harassed by the plaintiffs;  and (3) prevents inconsistent judgments, bearing in mind that the ruling of the trial court as to the enforceability of the settlement agreement is final.   Furthermore, he argues that the motion for summary judgment in the previous action should not be considered a motion strike because the ruling went to the very heart of the plaintiffs' cause of action for tortious interference with a contract, which could never be cured by repleading.   Moreover, the defendant sets forth an additional ground for summary judgment, not previously discussed, in which he argues that the title to the property was transferred to the Vance's by decree on November 18, 2009, and therefore, repudiates the plaintiffs' right to maintain an action for slander of title because the plaintiffs did not in fact have title to the property.   In reply, defendant McManus submitted:  (1) a copy of the memorandum of decision after dismissal of appeal in the adverse possession action, dated November 18, 2009;  and (2) a copy of an articulation in the adverse possession action, dated February 18, 2010.

As a preliminary matter, the plaintiffs argue that the motion for summary judgment in the previous action should be considered a motion to strike and the refiling of the case as an amendment to the complaint.  “[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading.”   Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005).   Nevertheless, the court, Robinson, J., in the previous summary judgment decision held that “[t]he defendant is entitled to judgment as a matter of law, because based upon the undisputed facts, neither the existence of a contract nor knowledge of the contract can be proven by the plaintiff.   Therefore, the court grants the defendant's motion for summary judgment.”   These are the exact parameters of a motion for summary judgment;  see Practice Book § 17-49;  as opposed to a motion to strike;  see Practice Book § 10-39.   Moreover, the court made no reference with regard to the plaintiffs' ability to replead.   Therefore, this court finds that the decision in the previous action should be treated as a granting of a motion for summary judgment under Practice Book § 17-49 and not as a granting of a motion to strike under Practice Book § 10-39, which permits repleading of a complaint within fifteen days.   See Practice Book § 10-44.

“The doctrine of res judicata [or claim preclusion] provides that [a] valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties ․ upon the same claim or demand ․ Moreover, [res judicata] prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made [in the prior action].”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Weiss v. Weiss, 297 Conn. 446, 459, 998 A.2d 766 (2010).  “[T]he appropriate inquiry with respect to [res judicata] is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding ․” (Internal quotation marks omitted.)  Linden Condominium Ass'n., Inc. v. McKenna, 247 Conn. 575, 594, 726 A.2d 502 (1999).   Therefore, “[a] plaintiff cannot, under the doctrine of res judicata, withhold certain claims from one action and then raise those claims in a later action when an adequate opportunity existed to raise all claims in one action.”   Daoust v. McWilliams, 49 Conn.App. 715, 726, 716 A.2d 922 (1998).

“For res judicata purposes, a judgment is final if no further judicial action by [the] court rendering judgment is required to determine [the] matter litigated.”  (Internal quotation marks omitted.)  Marone v. Waterbury, 244 Conn. 1, 12, 707 A.2d 725 (1998).  “A judgment may be final in a res judicata sense as to a part of an action although litigation continues as to the rest.”  (Internal quotation marks omitted.)  CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 397, 685 A.2d 1108 (1996).  “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.”  (Internal quotation marks omitted.)  Id., 398-99.  “[O]ne of the critical factors in determining whether a judicial determination is a final judgment for purposes of res judicata is whether it is also a final judgment for purposes of appeal.”  Id., 398.  “An otherwise interlocutory order is appealable in two circumstances:  (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.”   (Internal quotation marks omitted.)  Id., 399.

“A judgment on the merits is one which is based on legal rights as distinguished from mere matters of practice, procedure, jurisdiction or form ․ A decision with respect to rights and liabilities of the parties is on the merits where it is based on the ultimate fact or state of facts disclosed by the pleadings or evidence, or both, and on which the right of recovery depends.”  (Citations omitted;  internal quotation marks omitted.)   Rosenfield v. Cymbala, 43 Conn.App. 83, 91-92, 681 A.2d 999 (1996).  “[A] judgment obtained through the grant of summary judgment against a plaintiff constitutes a judgment on the merits for purposes of res judicata.”  (Internal quotation marks omitted.)  Boone v. William W. Backus Hospital, 102 Conn.App. 305, 311, 925 A.2d 432, cert. denied, 284 Conn. 906, 931 A.2d 261 (2007).

“[The Supreme Court 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 ․ In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action.”  (Internal quotation marks omitted.)  New England Estates, LLC v. Branford, 294 Conn. 817, 843, 988 A.2d 229 (2010).  “[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.)  Weiss v. Weiss, supra, 297 Conn. 461-62.

In the present case, there is no issue of material fact that a valid final judgment was rendered on the merits with regard to the same transaction as is alleged in the present case:  namely, the filing of a boundary agreement by defendant McManus.   While the judgment in the previous action was rendered on an interlocutory basis as to liability only, it was a final judgment because no further judicial action is required to determine the matter litigated;  see Marone v. Waterbury, supra, 244 Conn. 12;  and because the order so concluded the rights of the parties that further proceedings cannot affect them.   See CFM of Connecticut, Inc. v. Chowdhury, supra, 239 Conn. 399.   Furthermore, the judgment was on the merits because it addressed the ultimate facts disclosed by the pleadings and evidence on which the right of recovery depends;  see Rosenfield v. Cymbala, supra, 43 Conn.App. 91-92;  namely, the evidence pertaining to the existence of a contract or potential contract, or lack thereof.

The court finds that both the previous action and the present action arise out of the same transaction.   In their amended complaint to the previous action, dated October 27, 2008, the plaintiffs' claim of tortious interference with a contract stemmed from the allegation that “McManus recorded [a] contingent and unapproved settlement reached in [c]ourt on July 31, 2007, on the [l]and [r]ecords in the [t]own of Wallingford as a ‘Boundary Agreement,’ ․ on September 14, 2007.”   In the present action, the plaintiffs' claim of slander of title stems from the same allegation that the Vance's, “by their attorney, [McManus], and without leave of court, filed the contingent agreement of July 31, 2007 on the [l]and [r]ecords of the [t]own of Wallingford on September 14, 2007 as a ‘Boundary Agreement,’ by adding a cover sheet entitled ‘Boundary Agreement’ followed by a property description composed by [McManus], and the contingent agreement.”   While the complaint in the present action contains additional factual allegations concerning the filing of the agreement, both complaints alleged the filing of a “Boundary Agreement” on the same date and at the same location.   The plaintiffs go so far as to admit, in their memorandum of law, that “[t]here is no dispute that the action before the court arises from the same set of facts as the [previous] action.”   Nevertheless, the plaintiffs argue that res judicata should not apply because it would not advance the policy interests underlying the doctrine.

“[The] decision whether to apply the doctrine of res judicata to claims that have not actually been litigated should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close ․ and the competing interest of the plaintiff in the vindication of a just claim.  [The Supreme Court has] stated that res judicata should be applied as necessary to promote its underlying purposes.   These purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation;  (2) to prevent inconsistent judgments which undermine the integrity of the judicial system;  and (3) to provide repose by preventing a person from being harassed by vexatious litigation ․ The judicial [doctrine] of res judicata ․ [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate ․ Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest ․ We review the doctrine of res judicata to emphasize that its purposes must inform the decision to foreclose future litigation.   The conservation of judicial resources is of paramount importance as our trial dockets are deluged with new cases daily.   We further emphasize that where a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding.”  (Internal quotation marks omitted.)  New England Estates, LLC v. Branford, supra, 294 Conn. 843-44.

These policy interests support the application of the doctrine of res judicata.   With regard to judicial economy, the plaintiffs had the opportunity to raise their claim for slander of title in the previous action but chose instead to bring a solitary claim for tortious interference with a contract.³  Under the doctrine of res judicata, a party is prevented from raising “any claims relating to the cause of action which ․ might have been made [in the prior action].”  (Emphasis in original;  internal quotation marks omitted.)  Weiss v. Weiss, supra, 297 Conn. 459.

The plaintiffs have not argued that the slander of title claim could not have been asserted in the previous action.   With regard to inconsistent judgments, the present action does not pose such a threat because a slander of title claim is distinguishable from a claim of tortious interference with a contract.⁴  Nevertheless, it bears noting that the allegations in the complaint in the previous action are similar to the allegations in the complaint in the present action, although they are used to support distinct and separate claims.  (See footnote 3.) Finally, with regard to vexatious litigation, again the plaintiffs had the opportunity to raise a claim for slander of title in the previous action.   Moreover, in their objection to a motion to strike filed in the previous action, dated July 7, 2008, the plaintiffs argued that “[t]his is not a slander of title action.”   See Tassmer v. McManus, Superior Court, judicial district of New Haven, Docket No. CV 08 5018961 (Docket Item. No. 125).   Now that summary judgment has been granted with respect to their tortious interference with a contract claim, the plaintiffs seek to assert a claim under slander of title.   Res judicata is intended to prevent this type of ad hoc piecemeal litigation.

For the foregoing reasons, defendant McManus' motion for summary judgment is granted.   This 30th day of November 2010.

By the Court,

Alexander, J.

FOOTNOTES

FN1. On July 21, 2009, the plaintiffs filed a revised complaint pursuant to an order of the court, Skolnick, J., issued on July 16, 2009..  FN1. On July 21, 2009, the plaintiffs filed a revised complaint pursuant to an order of the court, Skolnick, J., issued on July 16, 2009.

FN2. McManus did not include a request for leave to amend his special defenses pursuant to Practice Book § 10-60(a)(3).   The plaintiffs, however, did not object and, furthermore, filed a reply to McManus' amended special defenses on July 22, 2010.   Therefore, the court finds that McManus' amended special defenses, filed on January 25, 2010, are the operative special defenses..  FN2. McManus did not include a request for leave to amend his special defenses pursuant to Practice Book § 10-60(a)(3).   The plaintiffs, however, did not object and, furthermore, filed a reply to McManus' amended special defenses on July 22, 2010.   Therefore, the court finds that McManus' amended special defenses, filed on January 25, 2010, are the operative special defenses.

FN3. It bears noting that the court in the previous action, Robinson, J., recognized that the plaintiffs did not specifically name their claim as tortious interference of a contract but appeared “to assert an intentional interference with contractual relationship cause of action.”   Nevertheless, there is little to distinguish between the allegations of the complaint in the previous action and the allegations of the complaint in the present action.   In the previous action, the plaintiffs alleged that McManus “intentionally and with malice, sought to tortiously interfere with the [p]laintiffs' title, impairing their property's value, and ability to sell it.”   In the present action, the plaintiffs allege that McManus, “as an officer of the [c]ourt, knowingly and with malicious intent filed the contingent agreement, adding a page to it of his own which did not represent the agreement signed by the [p]laintiffs ․ and knowingly filed a misleading document impairing their title without notice.”   In each action, the plaintiffs alleged damages in excess of $300,000..  FN3. It bears noting that the court in the previous action, Robinson, J., recognized that the plaintiffs did not specifically name their claim as tortious interference of a contract but appeared “to assert an intentional interference with contractual relationship cause of action.”   Nevertheless, there is little to distinguish between the allegations of the complaint in the previous action and the allegations of the complaint in the present action.   In the previous action, the plaintiffs alleged that McManus “intentionally and with malice, sought to tortiously interfere with the [p]laintiffs' title, impairing their property's value, and ability to sell it.”   In the present action, the plaintiffs allege that McManus, “as an officer of the [c]ourt, knowingly and with malicious intent filed the contingent agreement, adding a page to it of his own which did not represent the agreement signed by the [p]laintiffs ․ and knowingly filed a misleading document impairing their title without notice.”   In each action, the plaintiffs alleged damages in excess of $300,000.

FN4. “Slander of title is a tort whereby the plaintiffs claim of title [to] land or other property is disparaged by a letter, caveat, mortgage, lien or some other written instrument ․ A cause of action for slander of title consists of any false communication which results in harm to interests of another having pecuniary value ․ In other words, slander of title is a falsehood published to third parties that is not withdrawn after a demand by the title holder, which impugns the basic integrity or creditworthiness of an individual or business.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 202, 931 A.2d 916 (2007).   On the other hand, “[a] claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct.”   (Internal quotation marks omitted.)  Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000)..  FN4. “Slander of title is a tort whereby the plaintiffs claim of title [to] land or other property is disparaged by a letter, caveat, mortgage, lien or some other written instrument ․ A cause of action for slander of title consists of any false communication which results in harm to interests of another having pecuniary value ․ In other words, slander of title is a falsehood published to third parties that is not withdrawn after a demand by the title holder, which impugns the basic integrity or creditworthiness of an individual or business.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 202, 931 A.2d 916 (2007).   On the other hand, “[a] claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct.”   (Internal quotation marks omitted.)  Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000).

Alexander, Joan K., J.