LLC v. Kathleen Nevins (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

The issue before the court is whether the court should grant the defendant's motion for summary judgment on the grounds that the plaintiff's claims have already been litigated.   The defendant in her motion claims that the plaintiff is barred from re-litigating the matter under the principles of res judicata and collateral estoppel.   The court grants the defendant's motion for summary judgment for the following reasons:

FACTS

On November 15, 2007, the plaintiff, Coyle Crete, LLC, filed a five-count revised complaint alleging that the defendant, Kathleen Nevins, made false material representations to the plaintiff, wrongfully withheld the plaintiff's property for an indefinite period of time, violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110b et seq. and breached her duties of care pursuant to the Connecticut Rules of Professional Conduct.   In a revised complaint, the plaintiff alleges that on May 11, 2005, the plaintiff obtained a money judgment in the amount of $17,282.08.  (See Coyle Crete, LLC v. Six Flags, Superior Court, Judicial District of New Haven, Docket No. CV–02–0464043, September 13, 2004, Meadow, J.T.R.) On May 18, 2005, the defendant, who represented Six Flags against the plaintiff in the aforementioned case confirmed by facsimile that the total amount due to the plaintiff through May 17, 2005 was $18,445.66, including costs and post-judgment interest.   On or about May 20, 2005, the defendant confirmed with the plaintiff that Six Flags would satisfy the judgment without judicial enforcement.

On or about May 23, 2005, the plaintiff made a demand on the defendant to pay the judgment.   In response, she assured the plaintiff that she would make the payment when she received it from Six Flags.   Despite her assurance, on June 13, 2005, she informed the plaintiff that she received the check from Six Flags but refused to pay the plaintiff because she claimed to have a valid property execution for the money served on her by a state marshal.   On June 14, 2005, after the plaintiff received a copy of the execution from the defendant, the plaintiff informed her that the execution was invalid because it was issued on November 9, 2004, and it did not bear the name or last known address of the judgment debtor.   The defendant still refused to pay the plaintiff.   On June 15, 2005, the defendant admitted that the execution was not valid.   When the plaintiff demanded payment again, however, the defendant responded that a marshal was coming with a new execution, so that for the plaintiff to receive payment, it was “in a race with” the marshal to see who would arrive at her office first.   The plaintiff reminded the defendant that she was not served with a valid execution and demanded her to make payment immediately.   The defendant, however, continued to refuse to make payment and gave the funds to the marshal instead.

On September 12, 2005, the court, Lager, J., granted the motion for determination that judgment has been satisfied when the defendant turned over the Six Flags' payment in the amount of $18,445.66 to the state marshal because the execution demanded $22,233.57 from the plaintiff's funds to satisfy its judgment in an unrelated matter.  (See A & A Masonry, LLC v. Coyle Crete, LLC, Superior Court, Judicial District of New Haven, Docket No. CV–01–0450659, September 27, 2001, Silbert, J.) On October 7, 2005, the plaintiff filed a motion to reargue its objection to the motion for determination of judgment satisfaction, which was denied on October 11, 2005.

In the first count of the revised complaint, the plaintiff alleges that the defendant made false material representations upon which the plaintiff relied to its detriment.   The plaintiff has brought counts two through five alleging that by having wrongfully withheld the plaintiff's property, the defendant committed a statutory theft, General Statutes § 52–564 et seq., committed conversion, violated the CUTPA, General Statutes § 42–110b et seq. and breached her duties of care pursuant to the Connecticut Rules of Professional Conduct.

On November 8, 2010, the defendant filed a motion for summary judgment on the grounds that the plaintiff's claims are precluded by the principles of res judicata and collateral estoppel.   The motion is supported by a memorandum of law.   The plaintiff filed a memorandum of law in opposition to the motion for summary judgment on November 29, 2010.   The matter was heard at short calendar on November 29, 2010.

LEGAL ANALYSIS

“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.)  Sherman v. Ronco, 294 Conn. 548, 553, 985 A.2d 1042 (2010).  “To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ Once the moving party has met its burden ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”   (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).  “Because res judicata or collateral estoppel, if raised, 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).

In the present case, the defendant argues that she is entitled to judgment as a matter of law under the principles of res judicata and collateral estoppel as the relevant issues and claims in the present action have already been determined by the court's September 12, 2005 decision.

In its opposition, the plaintiff argues that because the defendant has failed to establish the elements of res judicata, summary judgment is inappropriate.   The plaintiff also argues that collateral estoppel does not preclude its claims in the present case because the only effect of the September 12, 2005 decision was that the court determined the judgment owed by Six Flags to the plaintiff has been satisfied.   The plaintiff argues further that the decision was rendered before any of its issues against the defendant arose, and as a result, they could not have been necessary in the court's decision.   Therefore, the plaintiff argues that summary judgment is inappropriate based on the principles of res judicata and collateral estoppel in the present case.

“[T]he doctrine of res judicata ․ [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties or those in privity with them] on the same claim.”   Massad v. Greaves, 116 Conn.App. 672, 684, 977 A.2d 662, cert. denied, 293 Conn. 938, 981 A.2d 1079 (2009).  “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 which were actually made or might have been made.”   (Internal quotation marks omitted.)  Weiss v. Weiss, 297 Conn. 446, 459, 998 A.2d 766 (2010).  “[R]es 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 ․ [W]here 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.)  Id., 459–60.

The Supreme Court “has adopted a transactional test for determining whether an action involves the same claim as a prior action such that it triggers the doctrine of res judicata ․ [T]he claim [that is] extinguished 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 ․ [The doctrine] applies to extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action (1)[t]o present evidence or grounds or theories of the case not presented in the first action, or (2)[t]o seek remedies or forms of relief not demanded in the first action ․ In implementing this test, [the Supreme Court] has considered the group of facts which is claimed to have brought about an unlawful injury to the plaintiff and has 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.”  (Citations omitted;  internal quotation marks omitted.)  Id., 461–62.  “In applying the transactional test, [the Supreme Court] compare[s] 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).

“To assert successfully the doctrine of [collateral estoppel, or] issue preclusion ․ a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case.”  (Internal quotation marks omitted.)  Rocco v. Garrison, 268 Conn. 541, 555, 848 A.2d 352 (2004).  “An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined ․ An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.”  (Citation omitted;  internal quotation marks omitted.)   New England Estates, LLC v. Branford, supra, 294 Conn. 839.  “In order for collateral estoppel to bar the relitigation of an issue in a later proceeding, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding ․ [T]he court must determine what facts were necessarily determined in the first trial, and must then assess whether the [party] is attempting to relitigate those facts in the second proceeding.”  (Internal quotation marks omitted.)  Id.

“In determining whether privity exists, [the court] employ[s] an analysis that focuses on the functional relationships of the parties.   Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts.   Rather, it is, in essence, a shorthand statement for the principle that collateral estoppel should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion.”  Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 814, 695 A.2d 1010 (1997).  “It is not essential in the application of the doctrine of res [judicata], however, that a party to be bound by the former adjudication should have been a formal party thereto or privy to a formal party.   It is sufficient if he, having an interest in the subject matter, participated openly and actively in so much of the former litigation as led to the judgment adjudicating the cause of action in question.”  (Internal quotation marks omitted.)  Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 789–90, 967 A.2d 1 (2009).

In the prior action for determination of judgment satisfaction, the plaintiff in the present case was the plaintiff, and the defendant in the present case represented Six Flags.   The court granted Six Flags' motion for determination of judgment satisfaction on September 12, 2005, despite the plaintiff's objection to the motion.   Moreover, the court denied the plaintiff's motion to reargue its objection to the motion for determination of judgment satisfaction on October 12, 2005.   In order to determine whether the doctrine of res judicata bars the plaintiff's claims in the present case, the transactional test, which requires a comparison of the complaint in the second action with the pleadings and the judgment in the earlier action, must be applied.

In the first action, the plaintiff objected to the motion for determination of judgment satisfaction by arguing that after the defendant received the settlement funds from her client on or about June 10, 2005, she continuously refused to pay the judgment despite the plaintiff's demands on June 13, 14 and 15, 2005.   The plaintiff also argued that the defendant “instead alerted [the plaintiff's] judgment creditor that she was holding the settlement funds,” that she was “acting in conspiracy” with the judgment creditor and that she converted the settlement funds.   Lastly, the plaintiff argued that the execution was improperly served.

In the present case, the plaintiff's revised complaint contains the following allegations:  the defendant represented Six Flags in the prior action for determination of judgment satisfaction, and she told the plaintiff that when she received the settlement funds from her client, she would pay the plaintiff.   After she received the said funds, however, she refused to pay the money to the plaintiff, and she turned it over to a marshal instead.   In the first count, the plaintiff alleges that the defendant made false representations that she would pay the money to the plaintiff, and the plaintiff relied on the representations to its detriment.   In counts two through five, the plaintiff alleges that by having wrongfully withheld the plaintiff's property, the defendant committed a statutory theft, General Statutes § 52–564 et seq., converted its property, violated the CUTPA, General Statutes § 42–110b et seq., and breached her duties of care pursuant to the Connecticut Rules of Professional Conduct.

The plaintiff's pleadings submitted for its opposition to the motion for determination of judgment satisfaction were based on the alleged actions or inactions by the defendant.   Although the plaintiff seeks to present theories of the case that appear nominally different from those in the prior action and demands additional forms of relief, such as, treble damages, double damages, attorneys fees, costs, and interest in addition to compensatory damages, the claims in the plaintiff's revised complaint are based on the same group of facts as the prior action.   Because these claims arise out of a single group of facts, it is still a single cause of action under the transactional test, so as to justify preclusion based on the doctrine of res judicata.   The defendant, who was the defense counsel in the prior action, has an identifiable interest and legal rights in the present case.   Furthermore, there is no question as to whether the defendant “participated openly and actively in so much of the former litigation which led to the judgment adjudicating the cause of action in question” with an interest in the subject matter of the litigation.   Therefore, the court finds that privity exists as to bind the court's determination from the prior action to the defendant, even if she was not a party to the case.   Thus, the present case is precluded by the doctrine of res judicata as it is a subsequent action between the same parties or those in privity with them on the same claim.   The court finds that the doctrine of res judicata ¹ bars the plaintiff's complaint.

CONCLUSION

For the foregoing reasons, the court grants the defendant's motion for summary judgment.

BY THE COURT

Alexander, J.

FOOTNOTES

FN1. The issues of whether the execution served on the defendant was valid and whether she complied properly with the execution pursuant to General Statutes § 52–356a are likely to have been essential and necessary for the court to render its decision that the judgment has been satisfied.   Because an issue is “actually litigated” if it is properly raised in the pleadings, submitted for determination, and in fact determined, all the issues raised by the plaintiff in its pleadings submitted in support of its opposition to the determination of judgment satisfaction are deemed to have been actually litigated for the purposes of collateral estoppel, notwithstanding the plaintiff's argument that the court rendered the decision before any of its issues against the defendant arose.   Therefore, the principle of collateral estoppel also bars the relitigation of the issues contained in the revised complaint as they were properly raised and submitted for determination in the prior action.General Statutes § 52–356a(a)(4)(B) provides in relevant part:  “[A] judgment debtor who is not a natural person, if such personal property, including any debt owed, is in the possession of a third person, the levying officer shall serve that person with a copy of the execution and that person shall forthwith deliver the property or pay the amount of the debt due or payable to the levying officer ․” “Levy under this section on property held by, or a debt due from, a third person shall bar an action for such property against the third person provided the third person acted in compliance with the execution.”  General Statutes § 52–356a(a)(5)..  FN1. The issues of whether the execution served on the defendant was valid and whether she complied properly with the execution pursuant to General Statutes § 52–356a are likely to have been essential and necessary for the court to render its decision that the judgment has been satisfied.   Because an issue is “actually litigated” if it is properly raised in the pleadings, submitted for determination, and in fact determined, all the issues raised by the plaintiff in its pleadings submitted in support of its opposition to the determination of judgment satisfaction are deemed to have been actually litigated for the purposes of collateral estoppel, notwithstanding the plaintiff's argument that the court rendered the decision before any of its issues against the defendant arose.   Therefore, the principle of collateral estoppel also bars the relitigation of the issues contained in the revised complaint as they were properly raised and submitted for determination in the prior action.General Statutes § 52–356a(a)(4)(B) provides in relevant part:  “[A] judgment debtor who is not a natural person, if such personal property, including any debt owed, is in the possession of a third person, the levying officer shall serve that person with a copy of the execution and that person shall forthwith deliver the property or pay the amount of the debt due or payable to the levying officer ․” “Levy under this section on property held by, or a debt due from, a third person shall bar an action for such property against the third person provided the third person acted in compliance with the execution.”  General Statutes § 52–356a(a)(5).

Alexander, Joan K., J.