Tony Genua v. LLC (2012)

MEMORANDUM OF DECISION

This matter is before the court concerning the defendants' motion for summary judgment (# 167).   The court heard oral argument on February 27, 2012.   After consideration, for the reasons stated below, the motion is granted.

I

Background

This action was commenced in July 2007 (see return of service).   The operative complaint is the revised complaint, dated January 7, 2008 (# 119).

The revised complaint contains two counts, for professional negligence and for breach of contract.   In both counts, the plaintiff, Tony Genua, alleges that the defendants, Devlin, Peters and Tarpey, LLC (DPT), a law firm, and Robert Peters, an attorney and principal in DPT, were negligent in 2005 concerning the preparation of a quit-claim deed of partition, in that they failed to preserve a right of first refusal which had been contained in a 1994 partnership agreement between Genua and three others.   The defendants contend that, in a separate suit brought by Genua against the Town of Somers and a Town employee, Genua v. Logan, 118 Conn.App. 270, 982 A.2d 1125 (2009), concerning the same underlying events, the Appellate Court concluded that the right of first refusal terminated in September 2002 when one partner withdrew, terminating the partnership agreement.   They argue that, since there was no right of first refusal to preserve when the defendants represented Genua in 2005, the alleged conduct of the defendants could not have caused his claimed damages and Genua is collaterally estopped from relitigating the issue.

The court summarizes the revised complaint's allegations below.   In count one, Genua alleges that, in July 1994, he, Sharon Fales, Paul Filippini and Eileen Filippini entered into a partnership agreement, the purpose of which was to acquire “80 acres of land contiguous to both Filippini and Genua with the intent that the parties would later divide the parcel in two with Genua–Fales owning one parcel and the Fillipinis owning the other parcel.”   See revised complaint, count one, ¶ 5.

In paragraph 8, Genua alleges that, on or about September 27, 2002, he retained Peters to represent him when Fales decided to withdraw from the partnership and sell her interest to Genua.   In paragraph 9, he alleges that “[t]hereafter the remaining parties began discussions about dividing the property up between them in accordance with the terms of the partnership agreement.”   In paragraph 10, he alleges that “[t]hroughout 2003 and 2005 Peters continued to work, advise and handle the transfer for the property on behalf of Genua.”   In paragraph 12, he alleges that “[b]y February 2005 Peters and Filippini's attorney had completed the documentation to divide the parcel into two equivalent pieces.”

Genua also alleges that he asked Peters to be sure that the transfer protected his right of first refusal as to the Filippini parcel and was assured on numerous occasions that it was so protected.   See revised complaint, count one, ¶¶ 13–14.   The plaintiff then alleges that “[t]he quitclaim deed of partition prepared and executed under the guidance and advice of Peters did not contain any right of first refusal.”   See revised complaint, count one, ¶ 15.

Genua also alleges that in August 2005, after he learned that the Filippinis were divorcing and contemplating selling their parcel, he went to Peters with the intent of exercising his right of first refusal, and that Peters later informed him that he could not represent him and advised him to seek other counsel.   See revised complaint, count one, ¶¶ 17–18.   In February 2006, the plaintiff learned that the Filippinis had agreed to sell the land to another couple, the Ladds, who also owned property which abutted the parcel.   See revised complaint, count one, ¶ 19.   Genua also alleges that Peters concealed from him that Peters and his law partner had a business relationship with the Ladds during his representation of Genua.   See revised complaint, count one, ¶ 20.

The plaintiff alleges that Peters was negligent “in that he failed to exercise due care to insure that the right of first refusal was incorporated into the deed from Filippini to Genua and Genua to Filippini, failed to record a notice of said right, failed to confirm in writing that the right still existed, so that Genua's right to purchase the Filippini parcel would be preserved and protected.”   See revised complaint, count one, ¶ 22.   He also alleges that Peters was negligent “in his representations to Genua that the right would be protected.”   See revised complaint, count one, ¶ 23.   In addition, Genua alleges that “Peters had a duty to correct the defect and failed to do so, abdicating his continuing duty to Genua in December 2005 when he first informed Genua that the right [i]n his opinion no longer existed and advised [Genua to] obtain other counsel.”   See revised complaint, count one, ¶ 24.

Concerning causation, in paragraph 25 of count one Genua alleges:  “[a]s a result of the aforementioned negligence of Peters and DPT, Genua has and will continue to be monetarily harmed in that he has suffered lost business opportunity[,] lost the benefit of his bargain to acquire the entire parcel of land and suffered damage as a result of lost development opportunities.”

In count two of the revised complaint, the plaintiff incorporates by reference paragraphs 1–24 of count one.   He then alleges that DPT and Peters breached their contractual obligation to Genua, which obligated them to prepare a document of transfer which preserved and protected his right of first refusal.   See revised complaint, count two, ¶ 25.   In the revised complaint, count two, paragraph 25, the plaintiff also alleges:  “Genua expressly asked Peters and DPT to preserve the right of first refusal in the transfer documents and he was assured by Peters that it would be done.”

Concerning causation, in paragraph 26 of count two, he alleges:  “[a]s a result of Peter's and DPT's failure to include language in the transfer documents that would have preserved Genua's right of first refusal Genua has been monetarily damaged in that he has suffered lost economic opportunities and the profit which would have been derived therefrom.”

In Genua v. Logan, supra, 118 Conn.App. 270, Genua “sought to recover damages from the defendant town of Somers and the defendant town clerk for their alleged negligence in improperly indexing in the town land records an affidavit that had been filed by the plaintiff to protect his right of first refusal for the purchase of certain property.”   The matter was tried to the court (Klaczak, J.T.R.).   In its opinion, the Appellate Court discussed the same July 1994 partnership agreement between Genua, Fales, and the Filippinis, which is referred to in Genua's revised complaint in this action.   See Genua v. Logan, supra, 118 Conn.App. 271–72.

“The agreement contained a right of first refusal, providing that if any party wanted to transfer his or her share of the property, the remaining parties would have a right of first refusal to purchase that portion of the property ․ The property remained undisturbed until September 27, 2002, when Fales decided to withdraw from the partnership and to sell her 25 percent interest to the plaintiff ․ After the sale, the plaintiff owned half of the property, while the Filippinis owned the other half.   Each paid half of the expenses ․ On March 28, 2005, the plaintiff and the Filippinis had the land surveyed to facilitate dividing the property.   The parties consulted with their attorneys, who prepared quitclaim deeds to divide the property.   Throughout this negotiation process, no party discussed the viability of the partnership agreement or the right of first refusal provision contained therein.”   (Footnotes omitted.)  Id., 272.

The Appellate Court stated, “[o]n appeal, the essential issue that we must resolve is whether the [partnership] agreement remained in effect [in December 2005] when the plaintiff filed his affidavit in the land records.”  Id., 273.   That issue was actually litigated before the trial court.   See id., 273, 276–77;  see also Genua v. Logan, Superior Court, judicial district of Tolland at Rockville, Docket No. TTD CV 06 5000683 (June 25, 2008, Klaczak, J.T.R.).

“The [1994 partnership] agreement states in § 2:  ‘The partnership shall commence immediately and shall terminate upon sale of the property or buy-out of one partner by the other.’  “ Genua v. Logan, supra, 118 Conn.App. 272 n.3. The Appellate Court concluded, “Section two of the agreement clearly and unambiguously states that the agreement ‘shall terminate upon sale of the property or buy-out of one partner by the other.’   The plaintiff bought Fales' share, and that [September 2002] transfer terminated the agreement.   As a result, we find that the [trial] court erred by failing to give effect to the plain and definite language of the agreement.   There is no contract language to support a finding that the right of first refusal extended beyond the date of termination of the partnership.   Because the plaintiff's right of first refusal was terminated along with the agreement, the plaintiff suffered no harm from the defendants' [December 2005] failure to properly record his right of first refusal in the Somers land records.”  Id., 277.

In response to the defendants' motion for summary judgment, the plaintiff submits his affidavit (# 173), in which he avers that Peters never told him that the 2002 transfer to Genua of Fales' interest in the partnership would vitiate or destroy the right of first refusal.   See Genua affidavit, ¶ 6.   He asserts also that, later, Peters advised him that a “different transaction, later in time, had destroyed this right.”   See Genua affidavit, ¶ 7.   He states also that it was only after the Appellate Court decision in Genua v. Logan that he “could fully appreciate how the 2002 transaction and Attorney Peters' conduct had caused me to lose my rights.”   See Genua affidavit, ¶ 8.   Notably, Genua's affidavit does not address how conduct by the defendants concerning the 2005 partition transaction with the Filippinis caused his alleged damages when the 2002 transaction with Fales caused the termination of the right of first refusal.

The plaintiff argues that, in support of their motion, the defendants do not claim that they were not negligent in 2002 or that for some other reason he should not be able to recover for this conduct.   Alternatively, he argues that there is a material fact in dispute, as to the nature and extent of Peters' representation in the 2002 transaction.   The plaintiff also argues that the defendants have not affirmatively pleaded the statute of limitations as a defense.

After the plaintiff submitted his papers in opposition to the defendants' motion, and before the oral argument thereon, the court issued its February 24, 2012 memorandum of decision (# 174).¹  Therein, the court addressed the new allegations of the plaintiff's proposed first amended complaint (# 163), concerning the 2002 sale by Fales of her interest to the plaintiff.   The court concluded that the continuous representation doctrine did not apply, and did not toll the limitations period;  that the new allegations did not relate back to prior allegations;  and that they were time-barred.   For those reasons, and others stated, the defendants' objection to the plaintiff's request to amend was sustained.

II

Standard of Review

“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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Rodriguez v. Testa, 296 Conn. 1, 6–7, 993 A.2d 955 (2010).

“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, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).

“The courts hold the movant to a strict standard.   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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

III

Discussion

“Because ․ collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim of [collateral estoppel].”  Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993).

“The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality ․ 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 upon a different claim ․ For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action.   It also must have been actually decided and the decision must have been necessary to the judgment ․ 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 ․ If an issue has been determined, but the judgment is not dependent [on] the determination of the issue, the parties may relitigate the issue in a subsequent action.   Findings on nonessential issues usually have the characteristics of dicta.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Lyon v. Jones, 291 Conn. 384, 406, 968 A.2d 416 (2009).

“[M]utuality of parties is no longer required to invoke collateral estoppel.”  Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 300, 596 A.2d 414 (1991).  “To allow a party who has fully and fairly litigated an issue at a prior trial to avoid the force of a ruling against him simply because he later finds himself faced by a different opponent is inappropriate and unnecessary.”  Id., 302.

“Before collateral estoppel applies there must be an identity of issues between the prior and subsequent proceedings.   To invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered 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 ․ Simply put, collateral estoppel has no application in the absence of an identical issue ․ Further, [t]he [party seeking estoppel] has the burden of showing that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.”  (Citations omitted;  internal quotation marks omitted.)  Wiacek Farms, LLC v. Shelton, 132 Conn.App. 163, 169–70, 30 A.3d 27 (2011), cert. denied, 303 Conn. 918, 34 A.3d 394 (2012).

“In general, the plaintiff in an attorney malpractice action must establish:  (1) the existence of an attorney client relationship;  (2) the attorney's wrongful act or omission;  (3) causation;  and (4) damages.”  (Internal quotation marks omitted.)  Grimm v. Fox, 303 Conn. 322, 329, 33 A.3d 205 (2012).  “As to causation:  In legal malpractice actions, the plaintiff typically proves that the defendant attorney's professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the defendant not been negligent.”  (Internal quotation marks omitted.)  Lee v. Harlow, Adams & Friedman, P.C., 116 Conn.App. 289, 297, 975 A.2d 715 (2009).   Similarly, “to be entitled to damages in contract a plaintiff must establish a causal relation between the breach and the damages flowing from that breach.”  (Internal quotation marks omitted.)   Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 333, 880 A.2d 106, 120 (2005).

Where a plaintiff is collaterally estopped from proving the essential element of causation, summary judgment is appropriate.   See Gray v. Weinstein, 110 Conn.App. 763, 770–76, 955 A.2d 1246 (2008).

As discussed above, the 1994 partnership agreement to which the plaintiff was a party was found by the Appellate Court in Genua v. Logan to “clearly and unambiguously state ․ that the agreement ‘shall terminate upon sale of the property or buy-out of one partner by the other.’   The plaintiff bought Fales' share [in 2002], and that transfer terminated the agreement.”  Genua v. Logan, supra, 118 Conn.App. 277.   The Appellate Court found that the right of first refusal contained in the 1994 partnership agreement terminated when Fales sold her interest to the plaintiff on September 27, 2002.   See id., 118 Conn.App. 272, 277.

The terms of the 1994 partnership agreement were available to the plaintiff beginning in 1994 at the inception of the partnership agreement, and in 2002 when Fales sold her interest to him.   The fact that the Appellate Court reversed the trial court in Genua v. Logan did not change the facts, including the terms of the partnership agreement.

The revised complaint does not allege a cause of action premised on negligence which allegedly occurred in connection with the 2002 transaction.   In view of the allegations in the revised complaint, which claim negligence by the defendants several years later, in 2005, the plaintiff's arguments concerning alleged negligence by the defendants in 2002 are unavailing.   There is no allegation of an act or omission in 2002 which allegedly caused the plaintiff to incur damages.

Where “[t]he facts alleged by the plaintiff to be in dispute are not material to the case ․ [they cannot] defeat [a] motion for summary judgment.”   Honan v. Greene, 37 Conn.App. 137, 141, 655 A.2d 274 (1995).   Where a “plaintiff is collaterally estopped from relitigating [an] issue, the facts alleged ․ even if in dispute, are not material.”  Carnemolla v. Walsh, 75 Conn.App. 319, 329 n.10, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003).

In opposition to the motion, the plaintiff admits that “the precipitating event causing the Plaintiff's losses was in 2002 and not in 2005.”   See plaintiff's memorandum of law (# 173), p. 7. The plaintiff does not set forth any reason why collateral estoppel is inapplicable here to preclude his claims based on the 2005 transaction.

In Genua v. Logan, the issue of when the right of first refusal terminated was actually litigated at trial and necessarily determined.   As noted above, there the Appellate Court stated that “the essential issue” for resolution was whether the partnership agreement remained in effect.  Genua v. Logan, supra, 118 Conn.App. 273.   In reversing the trial court, the Appellate Court necessarily determined that the right of first refusal terminated in 2002.   See id., 272, 277.

As a result, there was no right of first refusal for the defendants to preserve in 2005 when they represented the plaintiff in connection with the partition transaction with the Filippinis.   Collateral estoppel applies to preclude the plaintiff's claims based on the 2005 transaction, since the plaintiff cannot prove an essential element of his claims, that an act or omission by the defendants caused his damages.

Similarly unavailing is the plaintiff's argument that the defendants were required to raise the statute of limitations as an affirmative defense.   Since no claim of negligence based on the 2002 transaction is pleaded in the revised complaint, a special defense as to the limitations period was not required.   Based on Genua v. Logan, the defendants pleaded collateral estoppel in their fourth special defense to both counts.   See # 149.²

CONCLUSION

For the foregoing reasons, the defendants' motion for summary judgment is granted.   Judgment may enter for the defendants.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. In addition to the normal process of notification of the court's decision, the court provided copies thereof to counsel at short calendar on February 27, 2012..  FN1. In addition to the normal process of notification of the court's decision, the court provided copies thereof to counsel at short calendar on February 27, 2012.

FN2. The court previously addressed the statutes of limitations in its February 24, 2012 memorandum of decision (# 174), pages 8–10..  FN2. The court previously addressed the statutes of limitations in its February 24, 2012 memorandum of decision (# 174), pages 8–10.

Shapiro, Robert B., J.