Opinion
CV156058987S
06-22-2018
Bruce BONNER v. CITY OF NEW HAVEN
UNPUBLISHED OPINION
Wilson, J.
I
FACTS
On February 17, 2017, the plaintiff, Bruce Bonner, filed a three-count revised complaint for breach of contract, municipal estoppel, and fraud against Victor Bolden and the defendant, the city of New Haven (city).
On April 12, 2017, Bolden and the city filed a motion to strike counts two and three of Bonner’s revised complaint. On November 16, 2017, the court, Wilson, J., granted the motion to strike. The single count remaining is the breach of contract claim against the city, which is the subject of the city’s motion for summary judgment. The court notes that Bolden and the city also filed a motion to dismiss Bonner’s revised complaint on April 12, 2017, which the court, Wilson, J., denied on November 13, 2017.
Count one of the revised complaint alleges the following facts. Bonner was a police officer for the New Haven Police Department and has since retired. Bonner instituted a civil action against the city, which the city agreed to settle on May 16, 2014. On May 16, 2014, the court, Robinson, J., entered the settlement as a judgment by stipulation in the first action (stipulated judgment). Bolden was previously Corporation Counsel for the city and was involved in the settlement negotiations. As part of the settlement agreement, the city agreed to pay $58,000 to Bonner. This amount represented back pay for the period from July 2011 through May 30, 2014. Bolden represented that the settlement sum would be applied to Bonner’s pension earnings for 2013-2014 only (oral agreement Despite the oral agreement, the Pension Board for the city failed to apply the amount to Bonner’s pension because of a claimed calculation error and, instead, the amount was allocated to Bonner’s back pay period.
See Bonner v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-11-6025382-S (May 16, 2014, Robinson, J.). The court takes judicial notice of the docket and the court file in the first action. See Ertel v. Rocque, 108 Conn.App. 48, 53 n.4, 946 A.2d 1251, cert. denied, 289 Conn . 926, 958 A.2d 158 (2008) ("[t]he trial court has the power to take judicial notice of court files of other actions between the same parties").
On December 8, 2017, the city filed a motion for summary judgment and a memorandum in support of its motion for summary judgment as to count one. On February 22, 2018, Bonner filed a memorandum in opposition to the city’s motion for summary judgment and an affidavit in support of his opposition to the city’s motion for summary judgment. Oral on argument on the motion was heard at short calendar on February 26, 2018.
Practice Book § 17-45(b) provides: "Unless otherwise ordered by the judicial authority, any adverse party shall file and serve a response to the motion for summary judgment within forty-five days of the filing of the motion, including opposing affidavits and other available documentary evidence." On January 8, 2018, Bonner requested an extension of thirty days, up to and including February 6, 2018, to file a response to the city’s motion for summary judgment, which the court, Wilson, J., granted on January 9, 2018. Bonner filed his opposition on February 22, 2018, which was beyond the thirty day extension. In Martinez v. Zovich, 87 Conn.App. 766, 770 n.3, 867 A.2d 149, cert. denied, 274 Conn . 908, 876 A.2d 1202 (2005), the Appellate Court stated that because the "defendant did not demonstrate that the plaintiffs’ delay in filing their memorandum of law in opposition to the motion for summary judgment was prejudicial to his defense of the matter, the court chose not to grant the defendant’s motion on that procedural ground." "Superior Courts have relied on Martinez to allow them discretion in considering whether to consider untimely filed memorandums in opposition to a motion for summary judgment." Leone v. Portland, Superior Court, judicial district of Middlesex, Docket No. CV-12-6008054-S (May 9, 2015, Domnarski, J.) (58 Conn. L. Rptr . 201, 202 n.3). In the present case, the city has failed to object on the ground of untimeliness. Moreover, there is nothing to indicate to the court how the untimely filing of Bonner’s objection to the motion for summary judgment is prejudicial to the city’s defense. Therefore, the court will consider the plaintiff’s objection to the defendants’ motion for summary judgment.
II
DISCUSSION
"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." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016).
"The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
A
INTEGRATION CLAUSE
The city argues that the integration clause of the stipulated judgment makes the alleged oral agreement void. Also, at oral argument, the city argued that extrinsic evidence cannot be admitted to add terms to the stipulated judgment, which is completely integrated.
To counter, the plaintiff argues that the motion for summary judgment is premature because the plaintiff has not yet completed discovery regarding the alleged oral agreement, and the city’s initial allocation of the settlement sum towards the plaintiff’s pension, a mistake which the city later corrected, constituted a "course of performance," admissible to clarify the meaning of the stipulated judgment. Additionally, Bonner argues that the city’s course of performance, in applying Bonner’s settlement proceeds in the manner negotiated but not expressed in the agreement, waived the integration clause. Pl.’s Mem. 16.
Bonner argues that he has not had a chance to conduct discovery, and that Bonner "would conduct discovery to obtain the facts concerning: what was discussed during settlement negotiations, when the discussions occurred regarding the issue of how settlement proceeds would be applied to [Bonner’s] pensions; who authorized the [city’s] Pension Office to perform under the agreement and how [it went] on for at least a year before the defendant [city] decided to renege on its contractual obligation." Pl.’s Mem. 4-5.
1. Completely Integrated and Unambiguous
"Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact ... [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000). "In accordance with this principle, our [Supreme Court has] held, in a number of different contexts, that the contract language at issue was so definitive as to make the interpretation of that language a question of law ..." Id.
"Our case law, however, does not set forth a test by which to determine whether contract language is sufficiently definite to warrant its review as a question of law rather than as a question of fact. It is noteworthy that, in the majority of the cases considering contract interpretation a matter of law, the disputed agreement was a commercial contract between sophisticated commercial parties with relatively equal bargaining power. [Our Supreme Court] noted the importance of that factor in Bank of Boston Connecticut, in which [it] stated that [t]he defendants are effectively requesting that we rewrite their commercially sophisticated guaranty and indemnity agreement to require the plaintiff to exhaust the collateral securing the notes before pursuing its available remedy under the agreement. The parties could have written such an agreement, but they did not do so." (Emphasis in original) Id., 496 (holding that factors that created a presumption of definitiveness included fact that contract was of a commercial nature, and made between sophisticated commercial parties with the advice of counsel during an extensive drafting process); see also, Poole v. Waterbury, 266 Conn. 68, 87, 831 A.2d 211 (2003) (holding that former employee and town had equal bargaining power).
"A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ... [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ... the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract ... Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms." (Internal quotation marks omitted.) Alstom Power, Inc. v. Balcke-Durr, Inc., 269 Conn., 599, 610-11, 849 A.2d 804 (2004). "Although there are exceptions to this rule, we continue to adhere to the general principle that the unambiguous terms of a written contract containing a merger clause may not be varied or contradicted by extrinsic evidence.
"In order for the bar against the introduction of extrinsic evidence to apply, the writing at issue must be integrated, that is, it must have been intended by the parties ‘to contain the whole agreement’; Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 740, 557 A.2d 525 (1989); and to be ‘a final expression of one or more terms of [the] agreement ...’ (Citation omitted; internal quotation marks omitted.) Id. ; see also 3 A. Corbin, supra, § 539, p. 77 (‘[w]hen an agreement has been reduced to writing, one that is assented to as the full and operative statement of terms, the writing has been described as an "integration" ’); 11 S. Williston, supra, § 33:14, p. 612 (integrated agreement exists ‘when [the parties] mutually consent to a certain writing or writings as the final statement of the agreement or contract between them’)." (Footnotes omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 503.
"The parol evidence rule is premised upon the idea that when the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing. After this, to permit oral testimony, or prior or contemporaneous conversations, or circumstances, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme." (Internal quotation marks omitted.) Alstom Power, Inc. v. Balcke-Durr, Inc., supra, 269 Conn. 609.
"The parol evidence rule does not of itself, therefore, forbid the presentation of parol evidence, that is, evidence outside the four corners of the contract concerning matters governed by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such a contract. Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant. When offered for that purpose, it is inadmissible not because it is parol evidence, but because it is irrelevant. By implication, such evidence may still be admissible if relevant (1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in a writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud ... These recognized exceptions are, of course, only examples of situations where the evidence (1) does not vary or contradict the contract’s terms, or (2) may be considered because the contract has been shown not to be integrated; or (3) tends to show that the contract should be defeated or altered on the equitable ground that relief can be had against any deed or contract in writing founded in mistake or fraud ... Generally, however, we continue to adhere to the general principle that the unambiguous terms of a written contract containing a merger clause may not be varied or contradicted by extrinsic evidence." (Citations omitted; internal quotation marks omitted.) Id., 609-10 (parol evidence inadmissable where contract contained integration clause and language was unambiguous); compare Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 505 (consideration of extrinsic evidence was improper where language was clear and unambiguous and contract contained merger clause) with Geenty, Inc. v. Smernoff, Superior Court, judicial district of New Haven, Docket No. CV-01-0447870-S (June 21, 2005, Silbert, J.) (39 Conn.L.Rptr. 493, 494) (court considered course of performance where there was no merger clause); but see TIE Communications, Inc., v. Kopp, 218 Conn. 281, 291, 589 A.2d 329 (1991) (court properly considered extrinsic evidence to explain ambiguity in integrated contract).
"Although the question of what weight should be given to a merger clause has prompted a number of differing views, much of this disagreement has occurred in the context of unequal bargaining power between the parties, fraud, duress, or contracts in contravention of public policy ... The general rule of contract law remains that a [merger] clause ... is likely to conclude the issue [of] whether the agreement is completely integrated." (Citations omitted; internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 504.
In the present case, the stipulated judgment is sufficiently definitive so as to warrant interpretation of it as a matter of law. There can be little doubt that the parties, whatever their conduct during the negotiations, and whatever their protestations thereafter, intended the stipulated judgment to be the complete and final expression of their contractual relationships. See Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, supra, 252 Conn. 503. The expression of that intent may be found in the merger clause contained in paragraph five of the stipulated judgment, which states: "The parties agree that this Judgment by Stipulated Agreement is the final and complete agreement and any oral representations not reduced to writing and incorporated herein, shall have no legal force and effect." Def. Ex 2. Moreover, none of the concerns that might call the merger clause into question is present in this case. The parties in the present case are of relatively equal bargaining power, and, "[t]he [claimants in the first action acknowledged] that they retained legal counsel and read the ... [judgment] by [stipulated agreement] and fully [understood] its content and effect. [The claimants] further [acknowledged] that they voluntarily executed this [agreement] and [assented] to its terms, and that their decision in doing so [was] made freely and without duress, coercion, or fear of retaliation." Def. Ex. 2, stipulated judgment, ¶ 7. It is also obvious from the terms of the stipulated judgment that the parties executed the stipulated judgment only after extensive negotiations and drafting process during which they had the advice counsel. The court therefore concludes, that the parties’ insertion of the merger clause into the settlement agreement is conclusive evidence of their intent to create a fully integrated contract. As in Tallmadge, there is a presumption of definitiveness which the plaintiff has not rebutted. Accordingly, the stipulated judgment is completely integrated, and the alleged oral agreement merged into the stipulated judgment.
Prior to reviewing the city’s evidence, the court must determine if the evidence is admissible. "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).
Additionally, the agreement between the parties is unambiguous. The agreement by stipulated judgment provides: "The [city] will pay the following sums, less any legally required withholding calculated on the basis of an IRS Form W-4 signed by [the claimants in the first action]: ... e. $58,000 to [Bonner]. In addition, the [city] will pay $50,000 to the [claimants in the first action’s attorney]. No other sum of any kind, including but not limited to costs, fees, and/or interest, will be paid." Exhibit 2, stipulated judgment, ¶ 1. The city contends that the language in the agreement specifically sets forth the accounting method to be applied to the settlement sum, which provision directly contradicts Bonner’s contention that he was promised the settlement sum would be applied as pension earnings. Bonner contends that the language in the agreement is ambiguous because it does not specify the accounting method to be applied, and that the conduct of the parties shows that the parties intended the settlement sum to be distributed toward Bonner’s pension.
In Poole, our Supreme Court agreed with the lower court’s decision that the meaning of a provision in a bargaining agreement between an employee and its employer was ambiguous. See Poole v. Waterbury, supra, 266 Conn. 92. The provision provided that "the [city employer] shall continue in full force and effect the [medical] benefits for each ... employee who retires ... after [the execution of this agreement]." (Emphasis removed; internal quotation marks omitted.) Id., 92. "On appeal, each of the parties [contended] that this phrase [had] a different meaning. The defendants [contended] that it [meant] that the benefits shall continue until the expiration of the agreement, as set forth in the agreement’s general duration provision. The plaintiffs [contended] that it [meant] that the benefits shall continue throughout retirement. [Our Supreme Court agreed] that this phrase, in light of the contract as a whole, [created] an ambiguity with regard to the duration of medical coverage." Id., 92. Our Supreme Court found support for both interpretations within the text of the agreement; see id., 93; and concluded that "because the language of the contract [was] susceptible to more than one reasonable interpretation, the contract [was] ambiguous." (Internal quotation marks omitted.) Id., 96. Accordingly, our Supreme Court held that the trial court properly considered extrinsic evidence as to the conduct of the parties. See id., 97.
In the present case, unlike the agreement in Poole, there is no textual support for the plaintiff’s contention that the stipulated judgment is ambiguous as to how the settlement sum would be distributed. Simply put, the agreement mentions one accounting method only, that is, to pay Bonner $58,000, less any legally required withholding calculated on the basis of an IRS Form W-4. Neither the stipulated judgment, nor the W-4, make any mention of an agreement that the settlement sum would be included in Bonner’s pension. Accordingly, the court agrees that the contract unambiguously sets forth the proper accounting method for the distribution of Bonner’s settlement sum.
A W-4 is used by employers to withhold the proper amount of federal income tax from paycheck, and is unrelated to pension.
Accordingly, by presenting the stipulated judgment, the city has met its burden of demonstrating that there are no genuine issues of material fact that it did not breach the agreement when it distributed the settlement sum of $58,000 to Bonner, in accordance with the terms of the agreement. As the stipulated judgment is completely integrated and the language in the agreement is unambiguous, the court will not consider extrinsic evidence, including the course of performance, upon which Bonner relies to defeat the city’s motion for summary judgment.
2. Waiver of the Integration Clause
The court turns to Bonner’s argument that the city’s course of performance, in applying Bonner’s settlement proceeds in the manner negotiated, but not expressed in the agreement, waived the integration clause.
"Waiver is the intentional relinquishment or abandonment of a known right or privilege ... [V]arious statutory and contract rights may be waived ... Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced. Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed ... Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Citations omitted; internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 87, 919 A.2d 1002 (2007).
"As our Supreme Court has explained, [a] necessary element to waiver is the requisite knowledge of the right ... Waiver presupposes a full knowledge of an existing right or privilege and something done designedly or knowingly to relinquish it ... [W]here one lacks knowledge of a right there is no basis upon which a waiver of it can rest ... Accordingly, [t]o determine the presence of waiver, there must be evidence of intelligent and intentional action by the petitioner of the right claimed to be waived ... It must be shown that the party understood its rights and voluntarily relinquished them anyway.: ... Each case should be considered upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the party that is waiving its rights." (Citations omitted; internal quotation marks omitted.) Worth Construction Co. v. Dept. of Public Works, 139 Conn.App. 65, 70-71, 54 A.3d 627 (2012). "Waiver involves the idea of assent, and assent is an act of understanding. This presupposes that the person to be affected has knowledge of his rights, but does not wish to assert them." (Internal quotation marks omitted.) Id., 74.
"[The court] is not required to review issues that have been improperly presented to [the] court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium Ass’n, Inc., 63 Conn.App. 657, 659 n.2, 778 A.2d 237 (2001). In the present case, Bonner’s memorandum of law in opposition to the city’s motion for summary judgment is totally devoid of any legal analysis or argument in furtherance of his assertion that the city waived the integration clause of the stipulated judgment by applying Bonner’s settlement proceeds in the manner negotiated, but not expressed, in the agreement. Bonner has not analyzed the legal principle of waiver, and has merely submitted general boiler plate law on what constitutes a waiver. While Bonner cites to two Superior Court cases, which are not binding on the court, his discussion of those trial court cases is limited to whether a course of performance may be considered in interpreting an agreement, which is a different issue than waiver. The issue of whether a course of performance may be considered in interpreting an agreement is discussed in section A1 of this opinion.
Furthermore, the cases cited to by Bonner are distinguishable. In C.R. Klewin Northeast, LLC, the trial court held that the city waived its defense that the contract, which included an arbitration provision, was illegal, because it participated in an arbitration proceeding for twenty days before it raised a claim that it should have been aware of. See C.R. Klewin Northeast, LLC v. Bridgeport, supra, 282 Conn. 89-90. Our Supreme Court agreed with the trial court’s determination that the city waived its claim because it unduly delayed the presentation of the claim. See id. The court noted: "It is apparent to us that the city acted aggressively, and, indeed, properly ... in attempting to present its contract illegality claim to the panel. We agree with the trial court’s determination, however, that the city’s attempt was, in essence, too little, too late. Our conclusion that the city waived its contract illegality claim is based on the findings by the panel and the trial court that the city unduly delayed the presentation of the claim, notwithstanding the fact that it was aware of the bases for the claim since October 2001, when the federal indictment against Ganim was issued. Indeed, the city did nothing at that point to preserve its objection to or stay the arbitration proceedings pending developments with respect to facts alleged in the indictment. Moreover, the record indicates that, when the panel reconsidered its improper initial determination as to subject matter jurisdiction, as well as its timeliness ruling, and offered the city the chance to present its illegality claim, the city did not avail itself of that opportunity to go on the record to present or to preserve its right to make that claim. Accordingly, we conclude that the trial court properly found that the city’s actions before the panel constituted a waiver of this claim." (Emphasis in original; footnotes omitted.) Id., 89-90.
The present case is readily distinguishable from C.R. Klewin Northeast, LLC because the city’s opportunity to enforce the integration clause in the stipulated judgment did not arise until Bonner sued for breach of contract. Thus, Bonner has not presented any evidence of a delay caused by the city in presenting its argument that the integration clause in the stipulated judgment should be enforced. In addition, "[w]aiver presupposes a full knowledge of an existing right or privilege and something done designedly or knowingly to relinquish it ... [W]here one lacks knowledge of a right there is no basis upon which a waiver of it can rest." Worth Construction Co. v. Dept. of Public Works, supra, 139 Conn.App. 70-71. Here, Bonner has presented no evidence to demonstrate that the city had full knowledge of a known right which it waived. Accordingly, unlike in C.R. Klewin Northeast, LLC, here, there was no undue delay in the presentation of the city’s argument.
Bonner also cites to Rice v. Meriden Housing Authority, Superior Court, judicial district of New Haven, Docket No. CV-03-0479556-S (March 27, 2009, Corradino, J.), which discusses the doctrine of course of performance and the doctrine of waiver. Bonner cites to the portion in Rice which discusses the relevancy of a party’s course of performance in determining the meaning of an agreement. Id. Again, Bonner fails to explain how the court’s discussion on waiver in Rice is applicable to the present case. Moreover, it is difficult to see how the facts in Rice are similar to the facts in the present case. The lawsuit in Rice arose out of the termination of Rice’s employment by the Meriden Housing Authority (MHA). Id. In 2000, Rice was arrested for operating under the influence while driving an MHA vehicle. He pleaded guilty to the charge in 2002. Id. In 2006, four years after the conviction, Rice was terminated explicitly for the 2002 conviction. Id. The ultimate reason given for Rice’s termination was based on the alleged violation of Section 2.1c(iii) of his employment contract, which provided in relevant part: "The company shall have the right to terminate employee’s employment hereunder for cause upon written notice to employee. As used hereunder ‘cause’ means the occurrence of one or more of the following events ... iii. Recklesness or misconduct by employee in performance of his duties." Id. The plaintiff argued that the MHA waived its right to terminate under the agreement because so much time had passed from arrest to termination. Id.
In denying the motion for directed verdict on the jury’s finding in favor of Rice, the court indicated the following: "The reasons given by [the] MHA for not proceeding with termination after the arrest thus waiting for the conviction, do not pass muster, at least to the court." Id. Additionally, the court noted that there had been a discussion between the chairman of the MHA commission and Rice’s attorney during which Rice’s attorney told the chairman that his client intended to plead to the charge and was going to serve 120 days. Id. The court interpreted that discussion to mean that Rice, through his lawyer, was angling for non-termination, and thus the chairman knew he was angling for that. Id. The court held that "[there] is an equitable component to waiver and estoppel. Failure to reject outright the non-termination possibility for months, proceeding on a termination hearing based at least in large part on issues having to do nothing with the DUI incident, then at the end of the meeting relying on that as a ground to terminate does not seem fair." Id.
In the present case, once again, the opportunity to enforce the integration clause came about when Bonner sued on the stipulated judgment. Bonner has not presented any evidence, or advanced any argument, which would support his claim that the city unduly delayed presenting its argument concerning the integration clause, and thus leading to a waiver of the city’s argument. Moreover, as previously discussed, neither has Bonner presented any evidence to demonstrate that the initial misallocation of the settlement funds was anything more than a mistake, or that there was an element of unfairness, as was demonstrated in Rice, regarding the city’s intent to mislead Bonner deliberately over a length of time about the city’s intentions of reallocating the settlement sum.
Bonner also cites to Geenty, Inc. v. Smernoft, supra, 39 Conn.L.Rptr. 494, and quotes a portion of the court’s discussion on the relevancy of course of performance in interpreting a contract. Once again, the plaintiff fails to explain how Geenty, Inc. supports his proposition that the parties waived their right to enforce the integration clause. Geenty, Inc. does not discuss the equitable doctrine of waiver in any detail. The word waiver is mentioned three times, and in those instances, the court simply noted that "the parties all acknowledged that their waiver of their right to a trial by jury was voluntary. In addition, they agreed that they would be bound by the undersigned’s decision in this matter and that they would waive all rights to an appeal. In light of that agreement, they further agreed that there was no necessity for a court monitor to record the proceedings, nor would there be any need for a transcript. They therefore waived the presence of the court reporter as well as the presence of the clerk, once all exhibits were fully marked." Id., 493. Thus, all of the cases cited by Bonner on the issue of waiver are distinguishable from the present case.
Moreover, in Worth Construction Co., Worth Construction Co. (Worth Construction) and the Department of Public Works (DPW) formed a contract pursuant to which Worth Construction was required to substantially complete the construction of a project within a specified number of days. Worth Construction Co. v. Dept. of Public Works, supra, 139 Conn.App. 68-69. According to the contract, for every day that the project was not substantially completed, DPW was entitled to a certain amount in liquidated damages. Id. Worth Construction did not substantially complete the project within the specified number of days, and DPW sought liquidated damages under the contract. See id., 72. Worth Construction argued that DPW waived its entitlement to liquidated damages on the basis of the actions of a DPW manager, who miscalculated the period of time that Worth Construction was to attain substantial performance, and erroneously concluded that Worth Construction attained substantial completion within the specified number of days and no days were subject to liquidated damages. Id. Our Appellate Court affirmed the lower court’s decision that "[d]ue to his miscalculation of the total days allowed to reach substantial completion, [the DPW manager] lacked knowledge that [DPW] possessed a potential claim against [Worth Construction] ... [T]hat mistake of fact precluded [the DPW manager] from intelligently and intentionally waiving such a claim." Id., 74.
Bonner does not introduce any evidence that would create a genuine issue of material fact that there was any intent on the part of the city to knowingly relinquish its right to enforce the integration clause. Indeed, the affidavit that Bonner submitted in opposition to the city’s motion for summary judgment supports the conclusion that the initial allocation of the settlement fund was nothing more than a mistake similar to the mistake in Worth Construction Co. As our Appellate Court held in Worth Construction Co., such a mistake of fact precludes the city from intelligently and intentionally waiving its claim to enforce the integration clause and does not constitute a waiver as a matter of law.
Accordingly, Bonner has not presented any evidence or asserted any argument upon which the court could find that there are genuine issues of material fact that the city waived its right to enforce the integration clause as set forth in the stipulated judgment.
B
VALIDITY OF ALLEGED ORAL AGREEMENT
The city argues that the alleged oral or implied contract that is the basis of the plaintiff’s claim was not entered into by Bolden pursuant to any actual authority he had under the Charter of the city of New Haven. The plaintiff counters by making two arguments. The first is ratification. Specifically, the plaintiff argues that Bolden’s lack of authority to enter into the alleged oral agreement is not fatal to the plaintiff’s claim because the city ratified that agreement by initially allocating the settlement funds as set forth in that agreement before ultimately reallocating the funds. The plaintiff also argues that the minutes of the Litigation Settlement Committee’s meeting, which the city has submitted in support of its motion, actually support the plaintiff’s case because they demonstrate that the committee ratified Bolden’s actions rather than chastising him for acting beyond his authority. The plaintiff’s second argument is that the city is improperly making a collateral attack on the stipulated judgment by arguing that it is invalid.
1. No Actual Authority
"Generally, no officer or board, other than the common council, has power to bind the municipal corporation by contract, unless duly empowered by statute, the charter, or authority conferred by the common council, where the latter may so delegate its powers ..." (Internal quotation marks omitted.) Fennell v. Hartford, 238 Conn. 809, 814, 681 A.2d 934 (1996). "It has been well established that a city’s charter is the fountainhead of municipal powers ... The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised ... Agents of a city, including [its commissions], have no source of authority beyond the charter." (Internal quotation marks omitted.) Id., 813. "[A]ll who contract with a municipal corporation are charged with notice of the extent of ... the powers of municipal officers and agents with whom they contract, and hence it follows that if the ... agent had in fact no power to bind the municipality, there is no liability on the express contract." (Internal quotation marks omitted.) Id., 814. This is known as the Fennell doctrine.
"[Our Appellate Court] has held that the Fennell doctrine is not limited to claims of implied contract, but, rather, it also extends to other claims including unjust enrichment and quantum meruit." Ferrucci v. Middlebury, 131 Conn.App. 289, 304, 25 A.3d 728, cert. denied, 302 Conn. 944, 31 A.3d 382 (2011) (court applied Fennell doctrine to dispose of plaintiff’s claim for promissory estoppel, which plaintiff made after having been misinformed about his retirement benefit package by town finance director, because town’s charter vested authority to modify terms of town’s retirement plan in board of selectman rather than finance director); see also Biello v. Watertown, 109 Conn.App. 572, 573-77, 953 A.2d 656, cert. denied, 289 Conn. 934, 958 A.2d 1444 (2008) (court applied Fennell doctrine to dispose of plaintiff’s claims for implied contract, unjust enrichment, and quantum meruit against defendant town because despite water and sewer authority’s recommendation to increase plaintiff’s salary, suggestion was rejected by town council, and water and sewer authority lacked authority to set plaintiff’s salary); Ackley v. New London, Superior Court, district of New London, Docket No. CV- 13-6017866-S (November 18, 2015, Cole-Chu, J.) (61 Conn.L.Rptr. 301, 304) (court applied Fennell doctrine upon granting motion to strike claims for promissory estoppel, unjust enrichment, and quantum meruit because city charter was clear that mayor and city’s attorneys did not have authority to bind city to contractual obligation which was not yet approved by the city council, and plaintiff did not allege that city council approved the agreement).
The Charter of the city of New Haven and the Ordinances of the city of New Haven prescribe the manner in which the municipality may enter into contracts. The provisions in the Charter are in accord with the Ordinances of the city. Article IV, § 4(B) of the Charter of the city of New Haven provides: "The Board of Alders shall have power by majority vote of the entire membership of the Board of Alders then eligible to vote, with the written approval of the Mayor, or over said Mayor’s veto, as herein provided to enact, alter or repeal. Ordinances to be called the ‘Ordinances of the city of New Haven’; and to make, alter and repeal Resolutions or Orders by a majority vote of the members of the Board of Alders present; and to prescribe penalties not exceeding a fine of one hundred ($100.00) dollars or sixty (60) Days in jail or both for any violation of the same, and the mode of enforcing such penalties; which Ordinances, Orders or Resolutions may be for any of the following purposes, to wit: (1) To manage, regulate and control all city property; to authorize the purchase or sale of property in the name of the city; and to provide for the form and regulate the manner of making contracts; to regulate the collection and enforcement of taxes and liens and the borrowing of money by the city for any purposes for which said board is authorized to lay taxes; and to provide for the adjustment of claims against said city, and for the payment of the same." (Emphasis added.)
General Statutes § 52-163 requires that judicial notice be taken of the city’s Code of Ordinances. Section 52-163 provides the following: "The court shall take judicial notice of: (1) Private or special acts of this state, (2) regulations of any agency of this state, as defined in section 4-166, (3) ordinances of any town, city or borough of this state, and (4) regulations of any board, commission, council, committee or other agency of any town, city or borough of this state."
The court takes judicial notice of the city’s charter. See Dugas v. Beauregard State v. Lindsay, 109 Conn. 239, 241-42, 146 A. 290, 291 (1929).
Article VIII, § 2(C) of the Charter of the city of New Haven provides: "No Department, Public Official or Board of Commissioners shall incur any liability or expense by contract or otherwise for which said city shall be responsible in excess of the appropriations so made by said Board of Alders."
Article VI, § 4(B) of the Charter of the city of New Haven pertains to the duties of the Corporation Counsel and provides that the Corporation Counsel will: "(a) When so directed by the Mayor or Board of Alders, represent the city in all matters pending before the General Assembly affecting the interests of said city; (b) Perform all other legal services which may be required by the Board of Alders or by Law or Ordinance, which services may be performed by said Corporation Counsel or the assistant Corporation Counsels at the direction of the Corporation Counsel; (c) Prosecute or defend all suits for or against the city and shall prepare all contracts, bonds and instruments in writing in which the city is concerned and endorse on each approval of the form and correctness thereof." (Emphasis added.)
The portion of the Charter of the city of New Haven which describes the Litigation Settlement Committee provides: "There shall be a litigation settlement committee consisting of the Mayor, the Controller, the coordinator for administration appointed by the Mayor, or their designees, two (2) members of the Financial Review and Audit Commission who shall not be of the same political party, elected by their fellow commissioners, and two (2) members of the finance committee of the Board of Alders, who shall not be of the same political party, elected by their fellow Alders. Neither the Corporation Counsel, nor any deputy or assistant Corporation Counsel, may enter into a settlement on behalf of the city of any matter in litigation, the result of which would bind the city to make a payment in excess of five thousand dollars, or such greater amount as the Board of Alders may approve from time to time, unless said settlement has been approved by the litigation settlement committee." (Emphasis added.) Id., § 4(C).
In the present case, neither party disputes that Bolden did not have actual authority to enter into the alleged oral agreement to allocate $58,000 to Bonner’s pension earnings, because the alleged oral agreement was neither reduced to writing, nor approved by the-litigation settlement committee as required by the Charter and Ordinances of the city. Bonner, however argues that he is proceeding on the theory that the alleged oral agreement was the basis for an implied-in-fact contract. Per the doctrine enunciated in Fennel, which is explained herein, the city may not be held liable on a theory of an implied-in-fact contract. Accordingly, Bonner cannot prevail on this part of his argument in opposition to the motion for summary judgment.
At oral argument, Bonner argued that he was not proceeding on the basis of an implied-in-fact contract theory. However, the court notes that Bonner, in his memorandum in opposition to the motion for summary judgment, conceded that he is proceeding on a theory of an implied-in-fact contract. Pl.’s Mem., 8.
2. Ratification
"[N]o ratification or estoppel can make lawful a municipal contract which is beyond the scope of the corporate powers, or which is not executed in compliance with mandatory conditions prescribed in the charter or statutes." (Emphasis omitted; internal quotation marks omitted.) Ferrucci v. Middlebury, supra, 131 Conn.App. 289. "[I]n the case of a municipal corporation, the fact finder must determine that ratification was made by the officer or body originally empowered to make the contract." New Milford Block & Supply Corp. v. N. Grondahl & Sons, Inc., 51 Conn.App. 454, 458, 722 A.2d 1218, cert. denied, 248 Conn. 901, 732 A.2d 177 (1999).
As previously discussed, Bonner argues that he has not completed discovery, and would like to conduct further discovery with respect to how and why the Pension Board originally allocated the settlement sums toward Bonner’s pension earnings. Bonner failed to submit any evidence that would create a genuine issue of material fact that the Pension Board had the ability to ratify the alleged oral agreement. Bonner may not rely on mere speculation to show that there is a genuine issue of material fact. Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829-30, 92 A.3d 1025 (2014) ("Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment ... A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." [Internal quotation marks omitted.] ).
Moreover, the affidavit of Shafiq Abdussabar submitted in support of Bonner’s opposition, indicates that Abdussabar learned that the "[p]ension could not be used as a component of a settlement and that [Bolden and associate Corporation Counsel acted in a manner] that the [city] had no knowledge of." (Emphasis added.) Abdussabar Aff., ¶ 15. "It is well settled that municipal corporations cannot be made liable on implied contracts which would be ultra wires if attempted to be made in express terms, or which they are forbidden by statute to enter into except in a particular manner." (Emphasis omitted.) Vito v. Simsbury, 87 Conn. 261, 265, 87 A. 722 (1913). The aforementioned attestation in Abdussabar’s affidavit supports the conclusion that further discovery by Bonner would not change the outcome of the case as the Pension Board could not ratify the alleged oral agreement.
Additionally, at oral argument, Bonner conceded that he would not find any document memorializing the agreement to distribute the settlement sum to year 2013-2014 only. Bonner does not point to any provisions in the ordinance which gives authority to the Corporation Counsel, Pension Board or the Litigation Committee to enter into a contract on behalf of the city where there is no written agreement.
This very scenario would offend the policy set forth in Fennell, which our Appellate Court reaffirmed in Biello v. Watertown, supra, 109 Conn.App. 583 as follows: "As Fennell indicates, implied contract claims in the public sector would invite endless litigation on the basis of misinformation by employees, thereby drawing down the public fisc. Such misinformation is even more likely if based on oral rather than written representations." (Emphasis added.)
Bonner additionally argues that "[the city] got the benefit of the [stipulated judgment] but now denies any liability for breaching the [stipulated judgment] by seeking to invalidate the agreement." Pl.’s Mem. 13. Bonner relies on Loomis v. Fifth School District, 109 Conn. 700, 703-04, 145 A. 571 (1929), for the proposition that: "[a]s to contracts which are within its power to make we can perceive no reason why a public corporation should not be bound by ratification or estoppel upon the same principles and to the same extent as are natural persons or private corporations. Accordingly a municipal corporation may be held to have ratified an unauthorized contract by retaining the benefit under circumstances which estop it from denying its liability." In Loomis our Supreme Court determined "[t]hat it was within the power of the defendant district to contract for the installation of sanitary improvements in the schoolhouse ... It could therefore ratify the action of the plaintiff Loomis in making such installation, though he had no original authority in the premises." Id., 703. Also, in Loomis, the defendant school system accepted a benefit it would not have otherwise received by continuing to use the improvements which were contracted for without authority.
The present case is readily distinguishable from Loomis. In the present case, as previously discussed, Bonner has not provided any evidence to demonstrate how the Pension Board or the Litigation Committee would have authority to bind the city, especially because the alleged oral agreement was not memorialized in a written document. Moreover, there is no evidence that the city retained a benefit that it would not otherwise have received under the stipulated judgment. Although a year later, the Pension Board corrected the error that had been made in attributing the settlement sum toward the pension. See Revised Compl., Count One, ¶ 9. The fact that it had been a year before the error was corrected, and the act of correcting the error does not constitute ratification of that error. "As a general rule, [r]atification is defined as the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account ... Ratification requires acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances. (Citations omitted; internal quotation marks omitted.) Eder v. Cohen, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-166029393S (April 24, 2017, Povadotor, J.). Moreover, "[i]n order to ratify the unauthorized act of an agent and make it effectual and obligatory upon the principal, the general rule is that the ratification must be made by the principal with full and complete knowledge of all the material facts connected with the transaction to which it relates." Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 561, 698 A.2d 245 (1997). Here, there is no evidence that the city, had full and complete knowledge of all the material facts connected with the alleged oral agreement to ratify it. Accordingly, Bonner cannot overcome the city’s motion for summary judgment on the ground of ratification.
3. Collateral Attack
Bonner argues that the city’s claim that Bolden did not have authority to negotiate a settlement with Bonner which rendered the settlement agreement and stipulated judgment invalid; See Pl.’s Mem. 14; is a collateral attack on the judgment.
"A collateral attack on a judgment is an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it ... [A] collateral attack ... is an attempt to impeach the validity or binding force of the judgment or decree as a side issue or in a proceeding instituted for some other purpose." (Citation omitted; internal quotation marks omitted.) Lewis v. Planning & Zoning Commission, 49 Conn.App. 684, 688-89 n.5, 717 A.2d 246 (1998), rev’d on other grounds, 275 Conn. 383, 880 A.2d 865 (2005).
In the present case, the city seeks to enforce, rather than avoid, defeat, or impeach the validity of the stipulated judgment. The city does not argue that the stipulated judgment is invalid. To the contrary, the defendant relies on the written stipulated judgment as the basis for its argument that the alleged oral agreement is unenforceable. See Def.’s Exhibit 2, stipulated judgment. The city argues that the stipulated judgment should be enforced as written. See Def.’s Mem. 16. Bonner has therefore mischaracterized the city’s argument, and has not presented any evidence that establishes a genuine issue of material fact that the city is attempting to collaterally attack the stipulated judgment.
C
RES JUDICATA
The city argues that Bonner’s claim is barred by the doctrine of res judicata because the allocation of the funds paid under the stipulated judgment could have been resolved in the prior action before entry of the stipulated judgment. Bonner counters that (1) res judicata is not properly raised in a motion for summary judgment prior to the filing of an answer, and (2) res judicata does, not apply because the present claim is one of breach of contract, which is different from the racial discrimination claims in the original action.
The court will first address Bonner’s procedural objection before turning to the merits of the city’s claim. "[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).
Formerly, under our rules of practice, any party could move for summary judgment once the pleadings in a case were closed. See Howard v. Robertson, 27 Conn.App. 621, 627, 608 A.2d 711 (1992). "After October 1, 1992, the pleadings do not have to be closed as between the parties in order for a party to move for summary judgment." Girard v. Weiss, 43 Conn.App. 397, 407 n.12, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996). If the court were to hold that a motion for summary judgment could not be made prior to pleading special defenses, the court would negate that portion of 17-44 providing that a motion for summary judgment can be made at any time, without the necessity of closing the pleadings. See Gordon v. Gordon, 170 Conn.App. 713, 722-23, 155 A.3d 809 (2017).
Accordingly, despite the fact that the pleadings in the present case are not closed, and the city has yet to file an answer and special defenses, the court will consider the city’s argument concerning res judicata. Moreover, the court is within its "boundaries of our applicable rules of procedure in considering and ruling on the motion for summary judgment prior to the defendant’s [answer and special defenses] [and concludes that such consideration will not] affect[ ] the fairness and integrity of or undermine[ ] public confidence in the judicial proceeding at issue. See State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985)." Id., 723.
Turning to the merits of the city’s claims, it argues that Bonner’s breach of contract claim is barred by the doctrine of res judicata because the manner in which the settlement sum was allocated could have been resolved prior to the entry of the stipulated judgment.
"The applicability of res judicata presents a question of law ... Res judicata or claim preclusion express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest ... Generally, for res judicata to apply, four elements must be met: (1) the judgment must have been rendered on the merits by a court of competent jurisdiction; (2) the parties to the prior and subsequent actions must be the same or in privity; (3) there must have been an adequate opportunity to litigate the matter fully; and (4) the same underlying claim must be at issue.
"Res judicata bars the relitigation of claims actually made in the prior action as well as any claims that might have been made there. Powell v. Infinity Ins. Co., 282 Conn. 594, 607-608, 922 A.2d 1073 (2007). Public policy supports the principle that ‘a party should not be allowed to relitigate a matter which it already has had an opportunity to litigate.’ (Internal quotation marks omitted.) Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 363-64, 511 A.2d 333 (1986). Thus, res judicata 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 Ins. Co., 236 Conn. 582, 589, 674 A.2d 1290 (1996). Wheeler v. Beachcroft, 320 Conn. 146, 156-58, 129 A.3d 677 (2016).
"[A]pplication of the doctrine can yield harsh results, especially in the context of claims that were not actually litigated and parties that were not actually involved in the prior action. See Weiss v. Weiss, 297 Conn. 446, 465-66, 998 A.2d 766 (2010). The decision of whether res judicata should bar such claims should be 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.’ (Citation omitted.) Delahunty v. Massachusetts Mutual Life Ins. Co., supra, 236 Conn. at 591, 674 A.2d 1290; see also 1 Restatement (Second), Judgments § 24 (1982). The doctrine should be flexible and ‘must give way when [its] mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies.’ (Internal quotation marks omitted.) Isaac v. Truck Service, Inc., 253 Conn. 416, 423, 752 A.2d 509 (2000)." Wheeler v. Beachcroft, 320 Conn. 146, 156-58, 129 A.3d 677, 685 (2016).
"[A]lthough res judicata bars claims that were not actually litigated in a prior action, the previous and subsequent claims must be considered the same for res judicata to apply. See Powell v. Infinity Ins. Co., supra, 282 Conn. at 607-08, 922 A.2d 1073. ‘[T]he critical question is how broad a definition to give to the term "same claim" or "cause of action." The broader the definition, the broader the scope of preclusion.’ F. James & G. Hazard, Civil Procedure (2d Ed. 1965) § 11.7, p. 540; see also State v. Ellis, 197 Conn. 436, 464, 497 A.2d 974 (1985).
"To determine whether the claims are the same for res judicata purposes, [our Supreme Court] has adopted the transactional test. Weiss v. Weiss, supra, 297 Conn. at 461, 998 A.2d 766. Under the transactional test, res judicata extinguishes ‘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.’ (Internal quotation marks omitted.) Duhaime v. American Reserve Life Ins. Co., supra, 200 Conn. at 364, 511 A.2d 333, quoting 1 Restatement (Second), supra, § 24(1). ‘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. (Internal quotation marks omitted.) Orselet v. DeMatteo, 206 Conn. 542, 545-46, 539 A.2d 95 (1988). ‘[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.) Lighthouse Landings, Inc. v. Connecticut Light & Power Co., 300 Conn. 325, 349, 15 A.3d 601 (2011). 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, supra, 294 Conn. 843." Id., 159-60. In other words, here, the plaintiff’s claim that was extinguished by the stipulated 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." (Internal quotation marks omitted.) Id., 159. Thus, when the facts underlying the claims are the same, res judicata may apply. See Powell v. Infinity Ins. Co., supra, 282 Conn. 609 ("because the factual underpinnings of the claims asserted in action II and those actually litigated in action I are the same, they formed a convenient trial unit that would have favored consolidation" [internal quotation marks omitted] ); Buck v. Berlin, 163 Conn.App. 282, 293-94, 135 A.3d 1237, cert. denied, 321 Conn. 922, 138 A.3d 283 (2016) (holding transactional test satisfied where "virtually indistinguishable" factual circumstances gave rise to different legal theories).
In determining whether the stipulated judgment operates as a bar to the plaintiff’s present action because res judicata applies, the court must determine whether (1) the stipulated judgment in the prior action was a judgment on the merits by a court of competent jurisdiction; (2) the parties to the prior and subsequent actions are the same or in privity; (3) there was an adequate opportunity to litigate the matter fully; and (4) the same underlying claim is at issue. The court therefore, must compare the complaint in the present action with the pleadings and the stipulated judgment in the earlier action.
"A stipulated judgment has been defined by our Supreme Court as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction." Bank of Boston Connecticut v. DeGroff, 31 Conn.App. 253, 255, 624 A.2d 904 (1993). Although a "stipulated judgment is in the nature of a contract and does ‘not arise from a judicial determination of the rights of the parties or the merits of the case’ "; 46 Am.Jur.2d 531, Judgments § 186 (2006); see Connecticut Pharmaceutical Ass’n, Inc. v. Milano, 191 Conn. 555, 558, 468 A.2d 1230 (1983); "such a judgment is as conclusive as if it had been rendered upon controverted facts." (Internal quotation marks omitted.) Lee v. Tufveson, 6 Conn.App. 301, 303, 505 A.2d 18, cert. denied, 199 Conn. 806, 508 A.2d 31 (1986). "The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement." Bank of Boston Connecticut v. DeGroff, supra, at 255, 624 A.2d 904.
"As a consequence, when parties enter into a stipulated judgment, a presumption arises that they ‘intended to settle all aspects of the controversy, including all issues raised by the papers comprising the record.’ Tureck v. George, 44 Conn.App. 154, 161, 687 A.2d 1309, cert. denied, 240 Conn. 914, 691 A.2d 1080 (1997); see also Gagne v. Norton, 189 Conn. 29, 34, 453 A.2d 1162 (1983). Stated differently, in the absence of language evidencing an intent to preserve specific issues or claims for further litigation, it is presumed that the parties intended for the stipulated judgment to resolve all contested issues and claims raised in the record. See 46 Am.Jur.2d 527-28, supra, § at 183.
"The rationale for such a presumption emanates from the understanding that parties generally enter into a stipulated judgment only ‘after careful negotiation has produced agreement on their precise terms.’ (Internal quotation marks omitted.) Albert Mendel & Son, Inc. v. Krogh, 4 Conn.App. 117, 122, 492 A.2d 536 (1985). Thus, as a result of choosing the terms by which to resolve the controversy, ‘[t]he parties [thereby] waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation.’ (Emphasis added; internal quotation marks omitted.) Id. ; see also, 46 Am.Jur.2d 527, supra, § at 183. ‘Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation.’ (Emphasis added; internal quotation marks omitted.) Albert Mendel & Son, Inc. v. Krogh, supra, at 122, 492 A.2d 536; see also 46 Am.Jur.2d 527, supra, § at 183." Przekopski v. Zoning Bd. of Appeals of Town of Colchester, 131 Conn.App. 178, 186-87, 26 A.3d 657 (2011).
In the present case, the stipulated judgment satisfies the first and third elements of the res judicata analysis. The second element, namely, the identity of the parties, is satisfied because the plaintiff and the defendant were parties to the first action. In determining whether the fourth element, whether the same underlying claim from the first action is at issue in the subsequent action, the court must apply the transactional test as adopted by our Supreme Court, and as this court has set forth above. As previously noted, the court must determine whether the claim that was extinguished by the stipulated judgment in the first action, which 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, includes the plaintiff’s claim of breach of contract in the present action. Critical to the res judicata analysis in the present case, is the "well established precept that res judicata ‘bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action ... which might have been made .’ " (Emphasis added.) Tuccio Custom Homes, LLC v. Lamonica, 116 Conn.App. 527, 530, 975 A.2d 1280 (2009).
As previously discussed, "The transactional test of the Restatement [ (Second) of Judgments] provides a standard by which to measure the preclusive effect of a prior judgment, which we have held to include ‘any claims relating to the cause of action which were actually made or might have been made .’ ... In determining the nature of a cause of action for these purposes, we have long looked to the ‘group of facts which is claimed to have brought about an unlawful injury to the plaintiff, ... and have 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.) Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 364-65, 511 A.2d 333 (1986); see also Fink v. Golenbock, 238 Conn. 183, 191-92, 680 A.2d 1243 (1996); DeMilo & Co. v. Commissioner of Motor Vehicles, 233 Conn. 281, 294, 659 A.2d 162 (1995); Orselet v. DeMatteo, 206 Conn. 542, 545-46, 539 A.2d 95 (1988)." (Emphasis added; internal quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light & Power Co., 300 Conn. 325, 349, 15 A.3d 601, 616 (2011).
In the present case, the plaintiff argues that res judicata does not apply here because the original claim against the city of New Haven was racial discrimination in violation of General Statutes § 46a-60, et seq., of the Connecticut Fair Employment Practices Act (CFEPA) and the present action is a claim for breach of contract. The analysis is not as simple as the plaintiff asserts. The critical question is whether the issues that give rise to the plaintiff’s breach of contract claim arise out of the group of facts alleged in the prior discrimination action, which is claimed to have brought about an unlawful injury to the plaintiff, for which the stipulated judgment addresses. No doubt, the plaintiff has cleverly crafted his claim in count one as a subsequent breach of the stipulated judgment by the city, however, the issue this court must resolve in applying the doctrine of res judicata is whether the accounting method for payment of the settlement sum which the plaintiff raises in the present action, was raised or could have been raised by the plaintiff and could have been resolved prior to the entry of the stipulated judgment. The court concludes that the issue of how the settlement sum would be distributed was a part of "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," that could have been raised and resolved prior to the entry of the stipulated judgment. Based on the allegations contained in the complaint in the present action, and the affidavit of Shafiq Abdussabar submitted in support of the plaintiff’s objection to the motion, the accounting issue was clearly known to the plaintiff before he entered into the stipulated judgment and it could have been resolved by including such terms in the stipulated judgment. In other words, how much money would be paid to the plaintiff, and how that money would be paid, is all a part of the plaintiff’s damages claim raised in the prior action and thus, covered by the stipulated judgment.
The plaintiff asserted claims in the first action seeking, among other things, compensatory damages in the form of back pay from the city. As part of the settlement of those claims, the city agreed to pay the plaintiff a settlement sum of $58,000 and the plaintiff agreed to accept this sum in exchange for certain other provisions in the stipulated judgment, including a release. In accordance with the settlement, the parties then agreed to and drafted the specific terms of the settlement, as set forth in the stipulated judgment, to include, inter alia, a provision regarding how the payment of the $58,000 to the plaintiff would be made; an integration clause by which the plaintiff agreed that "5. [T]his Judgment by Stipulated Agreement is the final and complete agreement and any oral representations not reduced to writing and incorporated herein, shall have no legal force and effect"; and an acknowledgment by the plaintiff that "[he] retained legal counsel and read the foregoing Judgment by Stipulated Agreement and fully understand[s] its content and effect. The Plaintiff[ ] further acknowledge[d] that [he] voluntarily executed [the] Agreement and assent[ed] to its terms, and that [his] decision in doing so [was] made freely and without duress, coercion, or fear of retaliation." Def. Ex. 2. The city, pursuant to the settlement paid the plaintiff the sum of $58,000.
By commencing this breach of contract action, the plaintiff is really seeking to enforce an alleged oral agreement regarding how the settlement sum would be distributed, which oral agreement is prohibited by the terms of the settlement. The plaintiff had knowledge of the issue of how he wanted the settlement sum applied to his pension income prior to entering into, and signing the stipulated judgment, however he failed to raise the issue. Clearly this accounting issue was a part of "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," and, which was covered by the stipulated judgment. Consequently, the principles of res judicata operate to bar the plaintiff’s claim in count one since the claim could have, and should have been raised and resolved by including it in the terms of the stipulated judgment. Accordingly, the motion for summary judgment as to count one is granted based upon the doctrine of res judicata.
III
CONCLUSION
The city has satisfied its burden of demonstrating that there are no genuine issues of material fact that the city entered into an agreement which required the city to pay Bonner $58,000, and which did not specify that the sum should be applied toward the plaintiff’s pension, and that it is entitled to judgment as a matter of law because it complied with the stipulated judgment, which is unambiguous and completely integrated. Moreover, the city is entitled to judgment as a matter of law because the principles of res judicata operate to bar the present action. Accordingly, the city did not breach its contract with Bonner by reallocating the payments over Bonner’s entire back pay period, as opposed to Bonner’s pension earnings for years 2013 through 2014 only. Bonner has not overcome the city’s motion for summary judgment because he has not presented any evidentiary foundation to demonstrate the existence of a genuine issue of material fact that would make a difference in the result of the case. See Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). Accordingly, the city’s motion for summary judgment as to count one of the complaint is granted.
Bonner has not objected to Exhibit 3, and, in fact, Bonner argues that he would normally object to Exhibit 3 because it is uncertified and not properly before the court "however, [Bonner] considers the [city’s] Exhibit 3 to be more beneficial to [Bonner] than to the [city]." Pl.’s Mem. 910. Exhibit 3 are the May 7, 2014 Minutes of the Meeting of the Litigation Settlement Committee. Thus, "any objection is deemed waived and all documents are admissible." Hall v. Gallo, Superior Court, judicial district of New Haven, Docket No. CV-03-0476708-S (June 25, 2008, Cosgrove, J.). As the plaintiff has not objected to the admission of Exhibit 3, the court will consider same in ruling on the motion for summary judgment. Bonner objects to the city’s Exhibits 1 and 2, on the ground that they "fail to provide any admissible evidence in support of [the city’s motion for summary judgment] because Exhibits 1 and 2 set forth facts which are not in dispute nor do they show that there are no genuine issues of material fact." (Emphasis omitted.) Pl.’s Mem. 9. Bonner essentially objects on the ground of relevancy. Exhibit 1 is a copy of the complaint filed in the first action. Exhibit 2 is a copy of the stipulated judgment. The court will review Exhibits 1 and 2 as the exhibits are indeed relevant to the analysis herein.
Chapter 2, Article III, Div. 3, § 2-127 of the Ordinances of the city of New Haven provides: "The board of aldermen must pass an order or resolution in due form before any bond, deed or other contract under seal can be issued in the name and on behalf of the city. The mayor shall cause the controller to keep a record of all such instruments." Chapter 2, Article III, Div. 3, § 2-152(b) provides: "Upon obtaining the mayor’s written consent, and the litigation settlement committee’s approval, the corporation counsel shall have the authority to settle, adjust or compromise any appeal, action or suit brought by or against the city, or to which the city is a party."