Lisa Bruno v. Stephen Bruno (2012)

MEMORANDUM OF DECISION

This action comes before the court on the defendant's Motion for Summary Judgment (# 127).   This case raises the question of the extent to which interspousal tort claims survive a dissolution proceeding.

Plaintiff and defendant were formally married to each other.   During the period of the marriage, but while divorce proceedings were underway, the defendant, then husband, is alleged to have assaulted the plaintiff, then wife.   The alleged assault took place on November 6, 2006.   A decree of divorce was entered on March 17, 2008.

Defendant here moves for summary judgment on the ground of res judicata.   He claims that the plaintiff is attempting in this action to re-litigate a claim on which the court has aleady rendered final judgment.   Defendant's argument is that the plaintiff “raised the issue of the alleged assault numerous times” during the divorce proceeding and the claims regarding the assault were before the court when it assessed fault, allocated assets and entered support orders.   The end result, the defendant argues, is that the plaintiff “has already been compensated for the exact same incident for which she now seeks damages.

Plaintiff, of course, opposes the motion.   While she makes some procedural objections, the thrust of her opposition is that, from a legal perspective, there is no overlap in the legal claims between this action and the prior proceeding and the defendant's claims that the decision in the dissolution proceeding rested upon the assault are simply speculation.

STANDARD OF REVIEW

Section 17–49 of the Connecticut Practice Book states that summary judgment shall be rendered when “the pleadings, affidavits and other proof submitted shows that there is no genuine issue as to any material fact.”   Of course, not every factual dispute will be material nor should it preclude the entry of summary judgment.  “A material fact is a fact that will make a difference in the result of the case.”  Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803 A.2d 1134 (2004).   Once the movant has established the absence of any genuine dispute as to a set of facts which clearly entitles him to judgment, regardless of whatever else might be in dispute, they are entitled to summary judgment.   The burden on the moving party is a heavy one.   This court must view the evidence in a light most favorable to the non moving party, Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198, 931 A.2d 916 (2007), and the movant must present sufficient factual evidence to demonstrate the absence of any genuine dispute.  Barasso, supra, 81 Conn.App. at 803.   If the moving party has not met this burden, the failure of the non moving party to submit opposing evidence does not entitle the movant to judgment.  Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008).

Once the moving party has met his burden however, the party opposing the motion cannot simply rest on its allegations or denials;  it must “provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Tuccio Development, Inc. v. Neumann, 114 Conn.App. 123, 126, 968 A.2d 956 (2009).

DOCTRINE OF RES JUDICATA/COLLATERAL ESTOPPEL

The doctrines of res judicata and collateral estoppel are similar in application and rest upon the same goals of efficiency and finality.   They are often used without clear distinction between them.   Res judicata is a rule of claim preclusion.   As such it “prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.”  Delahunty v. Massachusetts Mutual Life Insurance Company, 236 Conn. 588, 589, 674 A.2d 1290 (1996).  “The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties in their privies in all other actions ․ [T]he judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made.”  (Internal citations omitted.)  New England Estates, LLC v. Town of Branford, 294 Conn. 817, 842, 988 A.2d 229 (2010).

On the other hand, collateral estoppel concerns itself with issue preclusion, and acts as a bar to the re-litigation of factual issues already determined in a court preceding.  “Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties on a different claim.”  Mount Vernon v. Morris, 90 Conn.App. 525, 535, 917 A.2d 538 (2005), quoting from Bouchard v. Sundberg, 80 Conn.App. 180, 186, 87, 834 A.2d 744 (2003).

DISCUSSION

The claims which are being asserted by the plaintiff in this case are claims of assault, breach of peace, intentional and negligent infliction of emotional distress and battery.   The defendant/ex-husband moves on the basis that at numerous times during the prior dissolution proceeding, the factual basis for these claims was addressed before the court.   Plaintiff claims that these incidents were raised through the plaintiff's testimony, when she was called as a witness at the dissolution trial, during argument on various motions as well as oral argument in the dissolution proceeding.   Movant contends these matters were and must have been considered by the trial court in the dissolution proceeding when it addressed the causes for the break up of the marriage, allocation of property and other issues addressed in the proceeding.   Claiming that the decision in the dissolution proceeding reflects consideration of all these issues, the defendant argues that they have already been adjudicated and allowing these claims to go forward here would allow the plaintiff to be compensated twice for the same alleged injuries.

Plaintiff argues not only that these claims were not in fact litigated before the dissolution court, but argues that the defendant's motion is contrary to the ruling in Delahunty v. Massachusetts Mutual Life Insurance Company, 236 Conn. 582, 674 A.2d 1290 (1996).

For the reasons said out hereinafter, this court finds that the defendant has failed to establish his entitlement to summary judgment on this basis.   Accordingly, the motion is denied.

Each of the parties here points to different cases which, in similar situations, reached different results.   First of these two cases was Delahunty, supra, which the wife contends should control here.   In Delahunty, the Connecticut Supreme Court considered whether or not tort claims asserted by one ex-spouse against the other ex-spouse were precluded under the doctrine of res judicata, as a result of a prior dissolution decree.   Its holding there was simple;  “[T]he doctrine of res judicata does not require all issues between spouses to be litigated in the dissolution proceeding.”   236 Conn.App. at 598.   Plaintiff contends this controls here.

Defendant points instead to the case of Weiss v. Weiss, 297 Conn. 446, 998, A.2d 766 (2010).   In Weiss, the Connecticut Supreme Court applied principles of res judicata and collateral estoppel to another ex-wife's claims against the ex-husband and affirmed the decision of the trial court which had found the claims barred.  Weiss involved claims concerning the ownership of certain assets in a business which had been jointly owned by the couple during the marriage and which assets not only should have been addressed as part of any dissolution proceeding, but were in fact addressed and resolved therein.   The trial court had found that, the wife's claims for breach of contract and conversion were barred based on the decisions rendered in the dissolution proceeding.

From the court's perspective, these two decisions are not in conflict.   Delahunty 's holding is in fact quite limited;  it is simply that not every issue in dispute between spouses must be litigated in a dissolution proceeding.  Weiss is not in any way inconsistent with that ruling.   Delahunty 's holding that interspousal tort claims during the marriage need not resolved in the dissolution proceeding is not inconsistent with Weiss 's holding that where such claims are in fact litigated between the parties, the judgment in the dissolution proceeding is binding on the parties in any subsequent litigation.

This court's reconciliation of Delahunty and Weiss should come as no surprise to these litigants.   In Bruno v. Bruno, 83 A.D.3d 165, 923 N.Y.S.2d 23 (App.Div.2011), these same parties addressed the very same principles and, apparently the very same authorities.   In the New York proceeding, Ms. Bruno had brought claims against Mr. Bruno alleging some fraudulent schemes and conspiracies to cheat her out of her share of marital assets, and Mr. Bruno moved for summary judgment under the doctrines of res judicata and collateral estoppel.

In a thorough and well written decision, the New York Appellate Division thoroughly addressed Delahunty and Weiss to correctly ascertain Connecticut law which, under New York choice of law, would control the resolution of dispositive issues.   The New York court stated its holding rather succinctly;  “[T]ort actions do not have to be litigated in the marital dissolution proceeding, but when a claim was actually litigated in the divorce proceedings, that decision has preclusive effects.”  83 A.D.3d at 171.

Applying this principle to this case yields a clear disposition of this motion.   As the tort claims here were not required to be litigated in the prior dissolution proceeding, the only basis for preclusion now would be if such claims were in fact litigated.

The only evidence offered by the defendant here to demonstrate the absence of any genuine dispute on his entitlement to the defense of res judicata is evidence that at certain points in the dissolution proceeding there was factual evidence or legal argument concerning some of the facts which underlie the tort claims advanced in this case.   What movant has failed to do however is demonstrate the absence of genuine dispute that such claims were in fact litigated or resolved in the prior proceeding.   To sustain the defendant's motion here this court would have to find that virtually any reference to some incident would place a party in the situation of having to litigate every possible claim which might thereafter rest on such facts.   This seems to be exactly what Delahunty says is not required.   While there were references to some of the same factual issues which will be addressed in this case, movant has not here demonstrated that the court in the dissolution proceeding resolved or even addressed the tort claims advanced here.   In the absence of such a showing, the defendant's motion for summary judgment must and is denied.

William J. Wenzel, Judge

Wenzel, William J., J.