The Cadle Co. v. Trumbull Probate Court et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT # 115

I

FACTS AND PROCEDURAL HISTORY

The plaintiff, The Cadle Company, commenced the present probate appeal by filing a complaint against the defendants on December 28, 2010.   The named defendant, the Trumbull Probate Court, has not filed an appearance.   The defendants that have done so are:  David D'Addario and Lawrence D'Addario in their capacity as executors of the estate of F. Francis D'Addario;  Red Knot Acquisitions;  David Chase;  JDJ Associates;  Corporate Center Associates;  Plaza 7000 Associates;  the Foundation for the Advancement of Catholic Schools;  and the Rabbinical College of America.   The only defendant involved in the present motion is Red Knot;  the court will therefore refer to it as the defendant hereinafter.   The plaintiff and the defendant are both creditors of the estate of F. Francis D'Addario (the estate).

The present matter has a long and complicated history involving our probate, trial and appellate courts.   See, e.g., Cadle Co. v. D'Addario, 268 Conn. 441, 844 A.2d 836 (2004);  In re Cadle Co., 129 Conn.App. 814, 21 A.3d 572, cert. denied, 302 Conn. 914, 27 A.3d 373 (2011).   In dealing with motions to dismiss in related probate appeals involving the estate, the court, Radcliffe, J., recently had occasion to comment on the litigation.   It characterized the facts in the following manner, which this court adopts:  “[This probate appeal] concern[s] the Estate of F. Francis D'Addario.   The decedent was a prominent industrialist and entrepreneur, who died suddenly in a plane crash in the 1980s.   The Estate of F. Francis D'Addario, which was opened in 1986, has been pending in the Probate Court for the District of Trumbull for over a quarter of a century, and will probably be closed sometime after a rapprochement is reached between the decedents of Isaac and those of Ishmael, in the Middle East. In 2010, the Cadle Company, an unsecured creditor [and the present plaintiff], obtained a judgment against the Estate for three million dollars ($3,000,000).”   D'Addario v. Appeal from Probate, Superior Court, judicial district of Fairfield, Docket Nos. CV 12 6024410, CV 12 6024411 and CV 12 6024397 (July 24, 2012, Radcliffe, J.).   That judgment remains unpaid.

The complaint alleges the following additional relevant facts.   On April 20, 2010, the plaintiff filed a “motion for omnibus relief” in the Probate Court, seeking, among other things, that the court invalidate and/or void the defendant's liens on certain assets of the estate and direct the defendant to disgorge all benefits and monies that it directly or indirectly received from the sale of properties that were subject to the invalid and/or void liens.   Reasons for Appeal ¶¶ 4(a), (b).  The court, Chiota, J., denied the motion on September 15, 2010.   The Probate Court's order denying the plaintiff's motion is attached to the complaint as Exhibit A. The defendant filed its answer and special defenses in the present probate appeal on January 10, 2011.

The defendant filed the present motion for summary judgment, a memorandum of law in support thereof and exhibits on September 23, 2011.   The plaintiff in turn filed its opposition (# 134) and exhibits on October 10, 2012.¹  The defendant then filed a reply memorandum (# 140) on November 16, 2012.   The court heard oral argument on the motion on January 8, 2013.

II

STATEMENT OF LAW

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ 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.   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.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

“An important exception exists ․ to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule.   On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that' it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.”  (Internal quotation marks omitted.)  Baldwin v. Curtis, 105 Conn.App. 844, 850–51, 939 A.2d 1249 (2008).

“[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 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);  see also Zanoni v. Lynch, 79 Conn.App. 325, 338, 830 A.2d 314, cert. denied, 266 Conn. 928, 837 A.2d 803 (2003).

III

AThe Parties' Arguments

The defendant moves for summary judgment on the ground that it is entitled to a judgment as a matter of law because the doctrines of collateral estoppel and/or res judicata bar the plaintiff from making the claims and raising the issues contained in ¶¶ 4(a) and (b) of the Reasons for Appeal.   The defendant first argues that ¶¶ 4(a) and (b) seek to challenge the enforceability of a 1997 forbearance agreement into which the defendant entered with the estate.   The forbearance agreement related to outstanding debt the estate owed to a consortium of banks.   The defendant purchased the debt and agreed it would forbear from foreclosing on that debt in exchange for the estate granting additional collateral to the defendant in order to further secure the defendant's position.   Def.'s Ex. A. The forbearance agreement also provided the estate with the option of purchasing the debt from the defendant at a substantial discount by a certain date.   Def.'s Ex. A.

The defendant argues that claims and issues relating to the enforceability of the forbearance agreement have been, or could have been, actually litigated and necessarily determined in prior proceedings;  more specifically, in a probate court appeal heard in Superior Court in which the plaintiff sought to remove the executors of the estate and to which the defendant was an interested party.   The trial of plaintiff's removal action took place from July 29, 2002 to August 1, 2002.   The defendant cites extensively to the trial record to demonstrate that the parties repeatedly addressed the enforceability of the forbearance agreement in their arguments and evidentiary submissions, and the court, McWeeny, J., did likewise in ruling from the bench that the plaintiff had failed to make out a prima facie case for its appeal.   Def.'s Ex. D, E, F, G, H, I and J. The Supreme Court affirmed Judge McWeeny's decision in Cadle Co. v. D'Addario, supra, 268 Conn. 443.   Thus, the defendant claims the enforceability of the forbearance agreement was or could have been actually and necessarily litigated and determined in the removal action.

The plaintiff opposes the present motion by making several arguments.   First, that it is procedurally improper because a party in a probate appeal may not seek summary judgment, and even if the court concludes otherwise, that party still may not seek partial summary judgment only.   Second, the scope of the present action is broader than the scope of the prior action.   The primary issue in the prior action was whether the state of the estate warranted the removal of the executors, whereas the primary issue in the present action is whether the defendant's liens on the estate's assets are invalid because a) the liens are not properly perfected, b) the executors lacked the authority to enter into the forbearance agreement and c) the liens are the product of collusion and/or fraud.   Third, the doctrine of collateral estoppel does not apply because the defendant has not met all of its criteria.   Fourth, the doctrine of res judicata does not apply because the claims in the present action are not the same as the claims in the prior action under the transactional test, and furthermore, res judicata only applies when the prior judgment at issue was rendered upon the merits without collusion or fraud.   Finally, even if the court concludes that the defendant has technically met all of the criteria for both preclusion doctrines, it should nonetheless deny the present motion because there has been a “material change in circumstances,” namely the discovery of information previously unavailable to the plaintiff and the occurrence of events after the removal action.

The defendant's reply to these arguments is that the court must reject the plaintiff's characterizations of the prior and present actions and its reliance upon a “material change in circumstances.”   It claims that the plaintiff's characterization of the prior action discounts its own allegations that the executors mismanaged the estate and depleted its assets by, among other things, entering into the forbearance agreement.   Moreover, that the plaintiff's characterization of the present action is likewise incorrect, because the allegations of the omnibus motion for relief and reasons for appeal support only one of the plaintiff's grounds for invalidating the defendant's liens, i.e., the enforceability of the forbearance agreement.   The defendant also argues there has been no “material change in circumstances” as the allegedly new facts that predate the removal action have always been discoverable, while those that postdate the removal action are irrelevant to the resolution of the claims and issues now before the court.

B

Standards for Collateral Estoppel and Res Judicata

The court now considers the doctrines of collateral estoppel and res judicata in detail and individually.   This is especially necessary given the defendant's treatment of these related but separate doctrines as virtually interchangeable and synonymous.  “Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum.   [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits ․ [I]ssue preclusion prevents a party from relitigating an issue that has been determined in a prior suit ․ Both doctrines protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation ․ and express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest ․ Res judicata, or claim preclusion, is [however] distinguishable from collateral estoppel, or issue preclusion.”   (Citations omitted;  internal quotation marks omitted.)  Dowling v. Finley Associates, Inc., 248 Conn. 364, 373, 727 A.2d 1245 (1999).

“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 and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction ․ If the same cause of action is again sued on, the 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 quotation marks omitted.)  Powell v. Infinity Ins. Co., 282 Conn. 594, 599, 922 A.2d 1073 (2007).  “[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 ․ [C]laim preclusion analysis prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made ․ [T]he essential concept of the modern rule of claim preclusion is that a judgment against [the] plaintiff is preclusive not simply when it is on the merits but when the procedure in the first action afforded [the] plaintiff a fair opportunity to get to the merits.”  (Internal quotation marks omitted.)  Close, Jensen & Miller, P.C. v. Fidelity National Title Ins. Co., 130 Conn.App. 174, 182–83, 21 A.3d 952 (2011).

“The term ‘cause of action’ is not easily defined, and the authorities have laid down no thoroughly satisfactory and all-embracing definition.   Moreover, there exists a number of theories for determining when two causes of action are ‘the same’ for the purposes of res judicata.   The majority of courts have relied on the Restatement of Judgments, §§ 61–67, for the definition of identical causes of action for res judicata purposes ․ The ‘operative facts' of a claim determine whether such a claim is identical to a previously litigated cause of action;  if the evidence needed to sustain the second cause of action would have sustained the first action, then the first judgment is res judicata on the second claim.”  (Citations omitted.)  Slattery v. Maykut, 176 Conn. 147, 157, 405 A.2d 76 (1978).

“We have 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.”  (Citations omitted;  internal quotation marks omitted.)  Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 590, 674 A.2d 1290 (1996).

“It is a well settled principle of law that whenever a court of competent jurisdiction has judicially tried and determined a right or a fact, the judgment thereon, so long as it remains unreversed, shall be conclusive upon the parties and those in privity with them in law or estate.   This trial and determination must be upon pleadings wherein is an averment of fact precisely stated on one side and traversed on the other, and found by the court or jury affirmatively or negatively in direct terms, and not by way of inference.”   Hungerford's Appeal from Probate, 41 Conn. 322, 327 (1874).  “Two requirements are necessary:  (a) identity of cause of action or of issues, and (b) an adjudication on the merits.”  New Milford Block Co. v. Ericson, 3 Conn.Cir.Ct. 1, 3, 206 A.2d 487 (1964).  “Because the doctrine has dramatic consequences for the party against whom it is applied ․ we should be careful that the effect of the doctrine does not work an injustice.”  (Internal quotation marks omitted.)  State v. Long, 301 Conn. 216, 237, 19 A.3d 1242, cert. denied, 132 S.Ct. 827, 181 L.Ed.2d 535 (2011).

“The common-law doctrine of collateral estoppel, or issue preclusion, [similarly] 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 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.”  (Internal quotation marks omitted.)  Lighthouse Landings, Inc. v. Connecticut Light & Power Co., 300 Conn. 325, 343–45, 15 A.3d 601 (2011).  “For estoppel to apply, the fact sought to be foreclosed by [the] defendant must necessarily have been determined in his favor in the prior trial;  it is not enough that the fact may have been determined in the former trial ․ The defendant has the burden of showing that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.”  (Internal quotation marks omitted.)   Dowling v. Finley Associates, Inc., supra, 248 Conn. 378.

C

Analysis

The ground on which the defendant moves for summary judgment is that the doctrines of collateral estoppel and/or res judicata preclude the present action.   The prior judgment to which the court must give preclusive effect, according to the defendant, is Judge McWeeny's oral dismissal of the plaintiff's removal action.   Therefore, the court begins its analysis by looking to this dismissal.   Judge McWeeny stated:  “As I've indicated, the standard, I believe, is not—they just have to do more than prove that there's a fiduciary relationship.   I think that based on the statute, based on the fact that the decedent designated certain individuals to be his executors, creates, along with the limitations on Court authority over estates, creates a burden on the party moving to remove the executors.   So I do place the burden on the plaintiff, the Cadle Corporation.”   Def.'s Ex. J;  Pl.'s Ex. I. After reviewing the plaintiff's evidence, he concluded:  “So, in my view, the plaintiff has not met its burden, and the appeal in the case is dismissed.”   Def.'s Ex. J;  Pl.'s Ex. I. Effectively, the claim on which the court ruled was one for the removal of the executors of the estate.

The key portion of Judge McWeeny's decision that the defendant now puts into issue is the following:  “The Red Knot extra interest expense at one million nine hundred twenty-seven thousand seven hundred ninety dollars is unsubstantiated.   They accomplished quite a bit in reducing the secured debt from fifty-five million to five million and paying a premium to get the cash under those circumstances was—can't be viewed as a mistake at this point.   The expert evidence is not supported by corroborative evidence, ignores existing probate filings, tax returns, court rulings and is also replete with many mistakes.”   Def.'s Ex. J;  Pl.'s Ex. I.

The present court next looks to the motion for omnibus relief filed by the plaintiff in the probate court, which provided:  “[W]ithout limitations, the granting of the Additional Collateral was improper in one or more of the following ways ․ (a) The Estate had no authority under the will or under law to grant the Additional Collateral to Red Knot;  (b) [t]he granting of the Additional Collateral significantly harmed unsecured creditors (such as Cadle);  (c) Red Knot and/or the Executors did not seek approval of the Probate Court for the granting of the Additional Collateral and/or (d) Red Knot and/or the Executors did not notify creditors and/or beneficiaries of the Estate that it intended to grant Red Knot the Additional Collateral prior to actually doing so ․ Moreover, the sale of the Banks' Secured Claims (which were partially secured) to Red Knot and the granting of the Additional Collateral (in an effort to augment the security for Red Knot's claim) were not in the best interests of the Estate and/or its unsecured creditors.”   Def.'s Ex. A;  Pl.'s Ex. B.

The plaintiff therefore requested that the Probate Court “declare that Red Knot's liens on the Additional Collateral are void as a matter of law for being improper under both the authority of the will and the authority of common law ․ This court should also declare that Red Knot's liens on the Additional Collateral are void as not being in the best interests of the Estate and/or its creditors.”   Def.'s Ex. A;  Pl.'s Ex. B. The plaintiff also requested that the Probate Court order the defendant to provide an accounting and to disgorge benefits and monies received directly or indirectly from the sale of properties subject to the invalid and/or void liens.   The operative complaint now before the court similarly provides:  “[T]he following issues are ripe for appeal ․ [w]hether Cadle was entitled to the relief sought in the motion ․ [w]hether the liens of Red Knot Acquisitions, LLC ․ on certain assets of the Estate of F. Francis D'Addario ․ should be invalidated and/or voided ․ [and][w]hether Red Knot should be directed to disgorge all monies and/or benefits that it received, directly or indirectly, from the sale of properties that were subject to invalidated and/or voided liens.”   Reasons for Appeal ¶¶ 8(a), (b) and (c).

Despite the parties' elaborate arguments and voluminous pleadings, the question that the present court must answer is limited in scope and simple in nature.   Was the judgment on the prior removal action dependent upon a determination of the enforceability of the forbearance agreement?   Or, putting the question another way, must this court give preclusive effect to Judge McWeeny's decision, such that the doctrines of collateral estoppel and/or res judicata bar the plaintiffs from making claims or raising issues regarding the enforceability of the forbearance agreement?   The court finds the answer to be no with respect to both preclusion doctrines.

1

Collateral Estoppel

As to the doctrine of collateral estoppel, the defendant has not met its burden of showing that Judge McWeeny's ruling was dependent upon the resolution of the issue regarding the enforceability of the forbearance agreement and that the issue was “necessarily determined” for collateral estoppel purposes.   The trial record provided by the parties clearly shows that the primary basis for the judgment dismissing the appeal was the plaintiff's failure to meet its evidentiary burden of demonstrating that the executors' conduct and its subsequent effect on the estate warranted their removal from their positions.   To the extent that Judge McWeeny commented on the forbearance agreement at all, he did so only in the context of discussing several “items ․ in the ․ report” of the plaintiff's expert that he concluded to be, among other things, “unsubstantiated.”   Def.'s Ex. J;  Pl.'s Ex. I.

In its initial memorandum, the defendant directs the court's attention to repeated express and implied references to the enforceability of the forbearance agreement made by attorneys and witnesses during the trial.   This court again notes that “[a]n issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.”  Lighthouse Landings, Inc. v. Connecticut Light & Power Co., supra, 300 Conn. 343–44.   Looking to the prior judgment and the manner in which it reflects Judge McWeeny's consideration of the issue, the only part of his decision that even remotely relates to the enforceability of the forbearance agreement is his reference to the executors' “accomplish[ment] ․ in reducing the secured debt” and how their conduct in “paying a premium to get the cash ․ [could not] be viewed as a mistake.”   Def.'s Ex. J;  Pl.'s Ex. I. The court cannot reasonably construe these statements to be legal determinations about the enforceability of the forbearance agreement given the narrow context in which they were made.   Rather, these statements constitute limited dicta as they bore specifically upon the calculation of the “Red Knot extra expense” and not upon the final judgment of dismissal.   The enforceability of the forbearance agreement was not “necessarily determined” by the trial court's decision in the plaintiff's prior action, and therefore, the doctrine of collateral estoppel does not apply to bar the plaintiff's present action.

2

Res Judicata

The doctrine of res judicata also does not apply.   In performing the transactional test, the court supplements its analysis of the complaint in the present action and the trial record in the prior action with a review of the complaint in, and the Supreme Court's characterization of, the prior action.   The complaint in the prior action focused upon the nature of the plaintiff's claim against the estate, the value of the estate's assets, the estate's failure to account for and appraise the value of its assets and the estate's failure to pay the plaintiff's claim.   Def.'s Ex C. The relief sought by the plaintiff in the prior action included:  the removal of the executors;  the appointment of a new professional executor;  the hiring of a competent accounting firm and attorney for the estate;  the posting of a probate bond;  and an appraisal of the estate's properties.   Def.'s Ex. C.²

The Supreme Court characterized the complaint in the prior action as an appeal of a denied “motion for order in the Probate Court seeking both the removal of the coexecutors and an accounting and liquidation of the estate.”  Cadle Co. v. D'Addario, supra, 268 Conn. 442–43.   It described the trial in the following manner:  “At the trial, the plaintiff presented evidence concerning its claims of breach of fiduciary duty, mismanagement and waste of estate assets.   The evidence related to purchases made by estate owned businesses, the retention and sale of estate properties, and negotiations with the largest creditor of the estate, all of which the plaintiff claimed were improper.”  Id., 450.

The Supreme Court further provided with respect to arguments and evidentiary submissions regarding the forbearance agreement:  “The plaintiff also presented evidence of the defendants' failure to pay off a debt to the largest secured creditor of the estate, Red Knot ․ The parties disputed the amount of the debt, which resulted from bank debt that was consolidated and bought by Red Knot. The estate believed it had paid off $6,650,000 of the debt to Red Knot, whereas Red Knot believed the estate had paid only $5 million.   Red Knot and the estate entered into a forbearance agreement that gave the estate an option to pay off the debt at a discounted rate.   The rate of discount was dependent upon the timeliness of the estate's payment and was set to expire on January 7, 2003.   Negotiations to extend the payout period were ongoing at the time of trial.”  Id., 452.

The forbearance agreement was thus relevant in the prior action because of the estate option contained therein and the plaintiffs' claim that the executors' failure to exercise it in a timely fashion, causing substantial financial loss to the estate, was one of many acts that warranted their removal.   Many of the arguments and witness statements from the trial record of the prior action, to which the defendant cites in moving for summary judgment in the present action, also reflect that the forbearance agreement was significant in the context of the executors' conduct.   The concern of the court and parties in the removal action was, with respect to the forbearance agreement, whether the executors' conduct was improper, not whether the forbearance agreement itself was improper.

Given these circumstances, the court cannot conclude that the facts underlying the prior and present probate appeals “are related in time, space, origin or motivation” or “form a convenient trial unit,” such that there is sufficient identity between the causes of action to warrant the application of res judicata.   The plaintiff correctly notes that the standard for removing an executor of an estate is demanding and distinct:  “The power of removal of trustees appointed by deed or will ought to be exercised sparingly by the courts.   There must be a clear necessity for interference to save the trust property.   Mere error, or even breach of trust, may not be sufficient;  there must be such misconduct as to show want of capacity or of fidelity, putting the trust in jeopardy.”  (Internal quotation marks omitted.)  Id., 458.   The evidence required to sustain this burden would not necessarily suffice for the case that the plaintiff now attempts to make, in order to have the defendant's liens invalidated and certain of their monies disgorged by virtue of the will, law and estate's best interests.

In Slattery v. Maykut, supra, 176 Conn. 147, the court held that the doctrine of res judicata did not apply where “the issue [in the second action] ․ was not involved in the question ․ actually litigated in the [first] action, and was not within the scope of the complaint or judgment in the [first] action.   The [plaintiffs'] present ground of recovery [was] distinct and severable from the claim made and litigated in the [first] action.”   The court in the present action holds likewise.

IV

CONCLUSION

The defendant has not met its burden of establishing entitlement to a judgment as a matter of law under either preclusion doctrine by negating each claim against it as framed by the complaint.   Because the court has reached this conclusion, it need not address the plaintiff's material change in circumstances argument.   Accordingly, the motion for summary judgment is denied.

FOOTNOTES

FN2. This review of the plaintiff's complaint in the prior action supports the court's conclusion that collateral estoppel does not bar the present action.   The prior complaint did not expressly or impliedly raise the issue of whether the forbearance agreement was enforceable.   As discussed infra, whether the relevant pleadings raise an issue is part of the “actually litigated” element of collateral estoppel..  FN2. This review of the plaintiff's complaint in the prior action supports the court's conclusion that collateral estoppel does not bar the present action.   The prior complaint did not expressly or impliedly raise the issue of whether the forbearance agreement was enforceable.   As discussed infra, whether the relevant pleadings raise an issue is part of the “actually litigated” element of collateral estoppel.

Shaban, Dan, J.