Opinion
CV156056847S
02-09-2018
Robert CONSIGLIO, Individually and as Executor of the Estate of Flora Consiglio et al. v. AL DENTE, LLC
UNPUBLISHED OPINION
OPINION
Wilson, J.
FACTS
On October 7, 2015, the plaintiffs, Robert Consiglio, individually and as executor of the estate of Flora Consiglio, and Richard Consiglio, filed a ten-count amended complaint alleging the following facts. In late 2013 through early 2014, the Consiglios, as owners of Sally’s Apizza (Sally’s), solicited offers from bidders that provided the bidders with the ability to further negotiate the potential sale of Sally’s. The defendant Carmine Capasso, an attorney admitted to the Connecticut bar, was an interested buyer of Sally’s, and held himself out as a member of the defendant Al Dente, LLC. Around March 2014, Capasso submitted a bid to the Consiglios and the parties subsequently entered into further negotiations. These negotiations, however, failed to produce a binding contract. Knowing that these negotiations did not produce a binding contract, Capasso initiated a lawsuit against the Consiglios upon becoming aware that the Consiglios intended to sell Sally’s to another buyer. That lawsuit, Al Dente, LLC v. Consiglio, Superior Court, judicial district of New Haven, Docket No. CV-14-6049694-S (the underlying action), was initiated in order to stall or defeat the sale of Sally’s to another buyer. The underlying action terminated in the Consiglios’ favor when the court, Frechette, J., granted the Consiglios’ motion for summary judgment on all counts. Capasso acted with malice in bringing the underlying action because he knew that he lacked probable cause as to each of the counts alleged. These allegations further form the basis of the Consiglios’ claims of vexatious litigation, abuse of process, tortious interference with a business expectancy, violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and slander of title.
The plaintiffs in this action were previously defendants in the underlying action between the same parties that is referred to throughout this memorandum. For the purpose of clarity, the plaintiffs will hereinafter be collectively referred to as the Consiglios.
The defendants in this action were previously plaintiffs in the underlying action between the same parties that is referred to throughout this memorandum. For the purpose of clarity, the defendants will hereinafter be collectively referred to as Al Dente.
On February 23, 2017, Al Dente filed an answer, special defenses, and counterclaim alleging the following facts. The Consiglios held a meeting on March 27, 2014, concerning the sale of Sally’s, by which the Consiglios agreed with Al Dente that bids for the purchase of Sally’s were due by April 14, 2014, and that the Consiglios thereafter had a duty to negotiate the sale of Sally’s with the highest bidder. On April 14, 2014, Al Dente submitted the highest bid and redelivered a contract that was previously provided to the Consiglios, although the date and purchase price were amended. Thereafter, the Consiglios began negotiations with Al Dente, and during this time, Al Dente addressed all of the Consiglios’ concerns and issues with the contract that was provided to them by Al Dente. Without Al Dente’s knowledge, and while engaging in ongoing negotiations with Al Dente, the Consiglios were exploring other offers for the sale of Sally’s. As a result of these outside negotiations, the Consiglios terminated their negotiations with Al Dente. The first count of Al Dente’s counterclaim alleges that the Consiglios’ conduct was intentional, fraudulent, and a bad faith breach of the March 27, 2014 agreement (bidding agreement). The second count of Al Dente’s counterclaim alleges that the Consiglios’ conduct violated CUTPA.
On June 13, 2017, the Consiglios filed a motion for summary judgment as to all counts of Al Dente’s counterclaim, on the ground that Al Dente’s counterclaims are barred by the doctrines of res judicata and collateral estoppel. The Consiglios filed a memorandum in support of summary judgment, to which they attached several exhibits. Al Dente subsequently filed an objection to the Consiglios’ motion for summary judgment, and submitted a memorandum of law and several exhibits in support. On November 2, 2017, the Consiglios filed a reply to Al Dente’s objection, to which they attached several exhibits. Oral argument was heard on the motion at short calendar on November 6, 2017. Additional facts will be set forth as necessary.
DISCUSSION
" [A]ny party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action." Practice Book § 17-44. " 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). " [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).
The Consiglios make the following arguments in support of their motion for summary judgment. Al Dente’s counterclaims are barred by the doctrines of res judicata and collateral estoppel because all the causes of action Al Dente asserts in its counterclaim are claims that either were, or might have been, brought in the underlying action. In the underlying action, Al Dente alleged that the Consiglios engaged in unscrupulous, deceptive, and unfair conduct in the course of negotiations between the parties to purchase Sally’s. Those claims are conceptually identical to Al Dente’s counterclaims in this action, wherein Al Dente alleges that the Consiglios engaged in bad faith conduct in the course of those same negotiations. Although wrongful conduct in the underlying case may sometimes permit a party to avoid res judicata, Al Dente has only claimed wrongful conduct in the instant action, and cannot claim wrongful conduct in the underlying action because it did not conduct any discovery in that case. Further, § 52-592 does not preclude the granting of summary judgment in their favor because that statute does not create an exception to the application of res judicata.
In response, Al Dente makes the following arguments. Its counterclaim is not identical to the claims it made in the underlying action because the counterclaim involves parties and tort claims that were not part of the underlying action. Further, Al Dente did not have knowledge of the facts necessary to bring the counterclaims until the Consiglios released confidential information in 2016. The Consiglios intentionally withheld knowledge of the facts that form the basis of Al Dente’s counterclaim, and were not known or available to Al Dente until more than two years after the underlying action was brought. Moreover, summary judgment in the underlying action was granted based on defective pleadings, rather than being decided on its merits, and therefore, even if its counterclaim is found to be identical to its claims in the underlying action, § 52-592 allows Al Dente to bring those same claims in the present action.
" The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation." Gionfriddo v. Gartenhaus Cafe, 15 Conn.App. 392, 401, 546 A.2d 284 (1988), aff’d, 211 Conn. 67, 557 A.2d 540 (1989). " [T]he applicability of res judicata and collateral estoppel presents a question of law ..." Weiss v. Weiss, 297 Conn. 446, 458, 998 A.2d 766 (2010). Whether to apply either doctrine " should be made 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 ... These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation ... The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate ... Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest." (Internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 601-02, 922 A.2d 1073 (2007).
" 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 ... The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it." (Citation omitted; emphasis omitted; internal quotation marks omitted.) New England Estates, LLC v. Branford, 294 Conn. 817, 842, 988 A.2d 229 (2010).
" 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." Wheeler v. Beachcroft, 320 Conn. 146, 156-57, 129 A.3d 677 (2016).
THE UNDERLYING ACTION
In the underlying action, the first count of Al Dente’s complaint alleged a breach of a contract for purchase and sale, the second count alleged a breach of a bidding agreement, and the third count alleged a violation of CUTPA, § 42-110a et seq. The court, Frechette, J., granted the Consiglios’ motion for summary judgment as to the first count, concluding that there was no breach because there was no binding purchase and sale agreement. Al Dente, LLC v. Consiglio, Superior Court, judicial district of New Haven, Docket No. CV- 14-6049694-S (August 10, 2015, Frechette, J.), aff’d, 171 Conn.App. 576, 157 A.3d 743 (2017). The court also granted summary judgment as to second count, finding that " there was never a binding bidding agreement between the parties, but rather an invitation for the plaintiffs to extend an offer." Id. Finally, the court granted summary judgment as to the CUTPA claim, because that claim was derivative of Al Dente’s other claims, which had been decided in the Consiglios’ favor. Id.
Al Dente appealed the trial court’s decision in its entirety and in Al Dente, LLC v. Consiglio, 171 Conn.App. 576, 157 A.3d 743 (2017), our Appellate Court affirmed the judgment. Al Dente argued on appeal that the trial court erred in granting summary judgment because the Consiglios had acted in bad faith by unilaterally terminating negotiations, but that position was rejected, as no such allegations were contained in Al Dente’s complaint or advanced at trial. Id., 589-90. Our Appellate Court held that the complaint and related documentation established, at most, that the Consiglios had a duty to engage in preliminary negotiations with Al Dente, and that those negotiations took place. Id. " Absent from the complaint [were] any allegations that the [Consiglios] acted in bad faith or that the bidding agreement required negotiations of a certain character or duration ... The materials that accompanied [Al Dente’s] opposition to the motion for summary judgment likewise [did] not contain any evidence to substantiate such allegations." Id., 590. The court affirmed the granting of summary judgment as to the second count of Al Dente’s complaint alleging a breach of the bidding agreement, as well as the derivative CUTPA claim. Id.
FIRST AND SECOND ELEMENTS
In the present case, there is no genuine issue of material fact as to whether the first and second elements of res judicata are met. The first element required for the application of res judicata is that " the judgment must have been rendered on the merits by a court of competent jurisdiction ..." Wheeler v. Beachcroft, supra, 320 Conn. 156. Here, the underlying case was decided by way of summary judgment. " [A] judgment obtained through the grant of summary judgment against a plaintiff constitutes a judgment on the merits for purposes of res judicata." (Internal quotation marks omitted.). Boone v. William W. Backus Hospital, 102 Conn.App. 305, 311, 925 A.2d 432, cert. denied, 284 Conn. 906, 931 A.2d 261 (2007). Therefore, there is no genuine issue of material fact that the first element of res judicata is met.
The second element of res judicata is that " the parties to the prior and subsequent actions must be the same or in privity ..." Wheeler v. Beachcroft, supra, 320 Conn. 156. Here, the parties to the underlying action and the present action are the same. Therefore, there is no genuine issue of material fact that the second element of res judicata is met.
THIRD ELEMENT
The third element required for the application of res judicata is that " there must have been an adequate opportunity to litigate the matter fully ..." Wheeler v. Beachcroft, supra, 320 Conn. 156-57. " Res judicata bars the relitigation of claims actually made in the prior action as well as any claims that might have been made there ... 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 ... 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." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 157-58. " [A]lthough parties are not required to resolve all disputes during a ... proceeding, when a party had the opportunity to raise the claim and the ... proceeding provided the proper forum for the resolution of that claim, res judicata may bar litigation of a subsequent action." (Emphasis omitted.) Weiss v. Weiss, supra, 297 Conn. 464. " [T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding ..." (Emphasis in original; internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 43-44, 694 A.2d 1246 (1997).
Our Supreme Court, in Powell v. Infinity Ins. Co., supra, 282 Conn. 604, considered whether the plaintiffs’ claims " could have been litigated in connection with [a previous action]" and determined that such claims were barred by res judicata. In Powell, the plaintiffs brought a claim against the defendant for injuries resulting from a motor vehicle accident pursuant to uninsured motorist provisions of an insurance policy. Id., 596. The, plaintiffs each filed offers of judgment for $20,000, the maximum amount of per person uninsured motorist coverage available under the policy. Id. The case was thereafter tried to a jury, which awarded damages far in excess of the policy limits, even after they were reduced based on a finding of comparative negligence. Id., 596-97. Following the defendant’s motion for remittitur, the awards were reduced to $20,000 for each plaintiff, plus interest. Id., 597. Approximately one year later, the plaintiffs commenced a second action against the defendant, which claimed bad faith, breach of contract, and a violation of CUTPA through CUIPA, § 38a-815 et seq. Id. In the counts claiming bad faith, the plaintiffs specifically alleged that they had sent letters to the defendant with demands to settle the claim for the policy limits, but, despite this, the defendant refused to pay such sums even though the reasonable value of the plaintiffs’ losses far exceeded those amounts. Id. These allegations were further incorporated into the counts alleging violations of CUTPA through CUIPA. Id., 598. The defendant moved for summary judgment, claiming, inter alia, that the action was barred by res judicata because the plaintiffs could have asserted these causes of action in the previous action. Id., 598-99. The trial court granted the defendant’s motion for summary judgment and the plaintiffs appealed. Id., 599.
On appeal, the plaintiffs argued that " the claims raised in action II were not adjudicated in action I, do not arise out of the same transaction that gave rise to action I, and are based on different facts than those alleged in action I" ; id., 603; but the court disagreed. Id., 604. The court explained that " [t]urning to the allegations in the complaints, it is apparent that both actions allege a breach of contract, involve the same parties, arise from the same motor vehicle accident, claim uninsured motorist benefits under the same policy ... and turn essentially on the defendant’s refusal to pay in accordance with the terms of that uninsured motorist policy." (Footnote omitted.) Id., 605. " The plaintiffs consistently have complained of the defendant’s wrongful failure to honor its obligation to make payments in accordance with the terms of the uninsured motorist insurance policy ... Their claims turn on essentially one event- the defendant’s refusal to pay in accordance with the terms of ... [the insurance] policy. In particular, they allege that the defendant engaged in bad faith by refusing to settle for the policy limits and, thereafter, by refusing to settle their claims for the policy limits in connection with the offer of judgment." Id., 606.
The plaintiffs in Powell further argued that " because some of the defendant’s conduct had not yet occurred when they commenced action I, they should not be barred from bringing action II." Id., 607. The court, however, " emphasize[d] the well settled rule that [a] judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose." (Emphasis omitted; internal quotation marks omitted.) Id. " [D]espite the fact that the complaint in action I did not include express claims of bad faith and violations of CUTPA/CUIPA, those claims are nevertheless extinguished because they could have been asserted in action I ... The additional allegations to which the plaintiffs direct our attention merely constitute additional evidence in support of their claims regarding the defendant’s wrongful failure to pay the policy benefits and, therefore, are extinguished by the judgment in action I as part of the transaction, or series of connected transactions, out of which the action arose. Moreover ... even [i]f the plaintiffs did not form a belief that the defendant was acting in bad faith, and/or in violation of CUTPA/CUIPA, until after their offer of judgment was not accepted, they, soon after, could have amended their complaint to include those allegations." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 607-08.
The facts of this case align with those of Powell v. Infinity Ins. Co., supra, 282 Conn. 594. Similar to how the court in Powell held that the plaintiffs had an adequate opportunity to litigate their bad faith claims when they litigated their claims of uninsured motorist benefits pursuant to an automobile insurance policy, likewise Al Dente had an adequate opportunity to litigate its present claim of bad faith when it litigated its claim that the bidding agreement had been breached in the underlying action. The complaint in the underlying action included allegations of a breach of the bidding agreement that Al Dente now claims was breached in bad faith, and derivative CUTPA violations, specifically, that the Consiglios’ " actions [in breaching the bidding agreement] were ... deceptive, unfair and unscrupulous." Underlying Compl. 5 ¶ 22. Therefore, although the complaint in the underlying action did not include express claims of bad faith, there is no genuine issue of material fact that those claims are nevertheless extinguished because they could have been asserted in the underlying action.
Further, even if Al Dente did not form a belief that the Consiglios were acting in bad faith until after its filing of the underlying action, it could have amended its complaint to include such allegations. Although Capasso testifies in his affidavit that Al Dente did not have evidence of the Consiglios’ negotiations with third parties until after the underlying action was filed; Capasso Aff. Opp. Summ. Judg. 5 ¶ 20; such evidence would merely constitute additional evidence in support of Al Dente’s previous claims in the underlying action regarding the Consiglios’ alleged wrongful breach of the bidding agreement and the derivative CUTPA claim.
In support of its opposition to summary judgment, Al Dente submits an affidavit of Capasso, in which he attests that " [t]he [Consiglios] provided Confidential Disclosures in this case in 2016 and 2017" ; Capasso Aff. Opp. Summ. Judg. 3 ¶ 14; and the " 2016 Confidential Disclosure provided the first evidence that the Consiglios both falsely denied having any duties under the Bidding Agreement and breached the Bidding Agreement ... Before the Consiglios’ 2016 Confidential disclosure Al Dente did not know, believe or have evidence of the fact that the Consiglios were negotiating with any potential buyer other than Al Dente at anytime after the April 14, 2014 Bidding Agreement deadline for the submission of bids or before the July 25, 2014 preparation of the complaint in the Underlying Action." Id., 3-4 ¶¶ 16-17. He further attests that the Consiglios " were fraudulently concealing their violations of the Bidding Agreement" ; id., 5 ¶ 18; and that he has " not attached documents from the [Consiglios’] 2016 and 2017 ‘Confidential’ disclosures in conformance with the Court’s current protective Orders, (Docs. 107.10, 131.20, 143.10)." (Emphasis omitted.) Id., 7 ¶ 29.
Al Dente’s receipt of confidential disclosures, without providing them to the court for its consideration in deciding the present matter, cannot serve to create a genuine issue of material fact. In order for the court to consider these confidential disclosures in deciding the present matter, Al Dente could have used the procedures set forth in Practice Book § 7-4B, titled " Motion to File Record under Seal," and as established by the court’s June 29, 2017 memorandum of decision regarding Al Dente’s motion to modify the court’s December 3, 2015 discovery order and the Consiglios’ objection to the same. Al Dente, however, has not availed itself of these procedures, but instead offers Capasso’s testimony as support for the claim that the Consiglios committed a bad faith breach of the March 2014 bidding agreement. Such self-serving testimony, however, is insufficient to create a genuine issue of material fact as to whether Al Dente had an adequate opportunity to litigate its bad faith claim in the underlying action. See Walker v. Housing Authority, 148 Conn.App. 591, 597, 85 A.3d 1230 (2014) (" a nonmoving party’s conclusory affidavits alone are insufficient grounds to deny a motion for summary judgment" ).
In ordering that certain confidential documents be produced to Al Dente, the court, Wilson, J., outlined the parameters of their use and disclosure. Mem. Dec. Mot. Modify 8-11. The court explained that such confidential documents could be disclosed to the court in order to assist with motions; id., 9 ¶ 3; and it set out procedures for using the confidential documents at trial, establishing that " [i]t will be the responsibility of the party offering or utilizing the documents to first alert the court prior to the offer." Id., 10 ¶ 8. The court’s decision further established that in the event any of the confidential documents are to be made public, Al Dente would advise the court and seek an order specifically addressing each document it seeks to disclose. Id., 10 ¶ 9. Additionally, the court set forth that " [n]othing in this Protective Order shall supersede or contravene the provisions of Practice Book § 11-20 and § 7-4B" ; id., 10 ¶ 10; and explained that the court’s ruling would have no bearing on the merits of the Consiglios’ present motion for summary judgment. Id., 6 n.1.
Even if Al Dente submitted evidence demonstrating that the Consiglios were negotiating with third parties for the sale of Sally’s, such evidence is immaterial in light of the court’s holding in the underlying action, in which it found that " the [Consiglios] agreed to engage in negotiations following Capasso’s submission of the highest bid ... [and] those negotiations transpired." Al Dente, LLC v. Consiglio, supra, 171 Conn.App. 590. Thus, such evidence is immaterial unless Al Dente were to produce evidence showing that the Consiglios fraudulently withheld evidence, in the underlying action, of a duty to negotiate exclusively with Al Dente. Al Dente, however, has not submitted any such evidence. Therefore, evidence showing that the Consiglios engaged in negotiations with third parties, would not create an issue of material fact because it would not make a difference in the result of the case. See Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002) (" [a] material fact has been defined adequately and simply as a fact which will make a difference in the result of the case" [internal quotation marks omitted] ).
FOURTH ELEMENT
The fourth element of res judicata is that " the same underlying claim must be at issue." Wheeler v. Beachcroft, supra, 320 Conn. 157. " Although 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." Id., 159. To determine whether the claims are the same for res judicata purposes, Connecticut courts use the transactional test. Id. " 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." (Internal quotation marks omitted.) New England Estates, LLC v. Branford, supra, 294 Conn. 843. " [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." (Internal quotation marks omitted.) Id. 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).
There is no genuine issue of material fact that the fourth element is met in the present case. The factual allegations that form both the underlying action and the present action arise from the same dispute over the sale of Sally’s and, thus, " are related in time, space, origin, or motivation ... [and would have] form[ed] a convenient trial unit ..." New England Estates, LLC v. Branford, supra, 294 Conn. 843. In the underlying action, Al Dente sought redress from injuries sustained from an alleged breach of a bidding agreement, and in the present action, Al Dente seeks redress from an alleged bad faith breach of that same bidding agreement. The underlying action and the present action both arise from a common set of facts and merely offer a slightly different legal theory, and therefore, arise from the same transaction or occurrence. Thus, there is no genuine issue of material fact as to whether the same underlying claim is at issue.
In the underlying action, the second count of Al Dente’s complaint, which addressed the bidding agreement, alleged that " [a]fter receiving [Al Dente’s] December 2013 offer to purchase [Sally’s] Mr. Lynch, as the [Consiglios’] selling representative, established in March 2014 a binding agreement to purchase [Sally’s] ... [On] April 14th [the Consiglios] confirmed the bidding process was won by Al Dente’s $3,133,000 bid and were reviewing [Al Dente’s] December 2013 offer to purchase ... As a result of [the Consiglios’] review of [Al Dente’s] offer to purchase [the Consiglios} on May 9, 2014 forwarded their comments to [Al Dente’s] December 2013 offer to purchase ... On or about May 14, 2014 [Al Dente] accepted [the Consiglios’] counter offer in their fully executed ‘Addendum to Contract Signed’ forwarded [the Consiglios] together with [Mr. Capasso’s] $333,000 deposit ... It was specifically required and agreed that Al Dente would participate in further bidding conditioned on the bidding process being agreed to be final, its bid not being used to obtain higher purchase prices, and the high bidder [being] the purchaser ... [Al Dente’s] conditions were accepted by the [Consiglios] and it was agreed: that bids submitted would be sealed, held in confidence, result in the final purchase price, not used to continue to raise the purchase price; and that no further bids would be solicited [or] accepted ... Continued failure to set a closing date, solicitation of purchase prices and any acceptance of another offer each constitute separate breaches of agreements with Al Dente to purchase Sally’s ... As a result of the aforesaid conduct by the [Consiglios, Al Dente is] threatened with the loss of the benefit of the agreement and the moneys expended by [Al Dente] therefor, on and attorneys fees and cost associated therewith, which losses and damages are continuing." Underlying Compl. 3-4 ¶¶ 12-19. The third count of Al Dente’s complaint in the underlying action alleged a CUTPA claim that was derivative of the second count. Id., 4-5 ¶¶ 1-23.
In the first count of its counterclaim in the present action, Al Dente alleges that " [a]t a sale and purchase meeting held on March 27, 2014 the Consiglios agreed with [Al Dente] that: (1) bids by all interested buyers for the purchase of Sally’s would be due at the office of their Sale Rep by 5:00 P.M. on April 14, 2014; and (2) the Consiglios had a duty thereafter to negotiate the sale of Sally’s with the highest bidder." Counterclaim 6 ¶ 7. " On April 14, 2014 [Al Dente] submitted the highest bid and also redelivered the December 2013 contract previously provided the Consiglios, albeit with an amended date and purchase price reflecting the high bid amount, (hereafter the " Contract" ) ... Immediately thereafter the Consiglios, through their attorney: (1) commenced the negotiations with [Al Dente] to which the Consiglios had agreed at the March 27, 2014 meeting; (2) continued the negotiations through the date [Al Dente] agreed to [include] in the Contract all the Consiglios’ concerns and issues with the Contract ... Without the knowledge of [Al Dente] prior to May 14, 2014 the Consiglios, during their ongoing negotiations with [Al Dente] were exploring, entertaining offers and negotiating with, John Doe(s) for the sale of Sally’s ... The unknown negotiation(s) with John Doe(s) were not disclosed to [Al Dente] ... As a result of the unknown negotiation(s) for the purchase and sale of Sally’s with John Doe(s), the Consiglios unilaterally and permanently terminated their then ongoing negotiations with [Al Dente] ... The unknown negotiation(s) with one or more John Doe(s) were concealed from [Al Dente]." Id., 6-7 ¶¶ 9-14. " The concealment from [Al Dente] of the unknown negotiation(s) with one or more John Doe(s) was: (1) intentional; (2) a bad faith breach of the March 27, 2014 agreement; and (3) fraudulent." Id., 7 ¶ 16. The second count of Al Dente’s counterclaim in the present action alleges a CUTPA claim that is derivative of the first count. Id., 7-8 ¶¶ 1-22.
In summary, there is no genuine issue of material fact that each of the four elements of res judicata have been met in the present case, as applied to Al Dente’s claim of bad faith, and the Consiglios are entitled to judgment as a matter of law.
CUTPA
Al Dente’s CUTPA claim in the present action is derivative of its claim of a bad faith breach of the bidding agreement. Therefore, because res judicata prevents the relitigation of Al Dente’s present claim of bad faith, there is no genuine issue of material fact that Al Dente’s CUTPA claim must also fail.
GENERAL STATUTES SECTION 52-592
Al Dente argues that summary judgment in the underlying action was granted based on defective pleadings, rather than being decided on its merits, and therefore, even if its counterclaim is found to be identical to its claims in the underlying action, § 52-592 allows Al Dente to bring its claims in the present action. The Consiglios argue that § 52-592 does not preclude the granting of summary judgment in their favor, because that statute does not create an exception to the application of res judicata.
General Statutes § 52-592 provides in relevant part: " Accidental failure of suit; allowance of new action. (a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this Section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."
" Whether [§ 52-592] applies cannot be decided in a factual vacuum. To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a ‘matter of form’ in the sense that the plaintiff’s noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect." (Footnote omitted.) Ruddock v. Burrowes, 243 Conn. 569, 576-77, 706 A.2d 967 (1998). " The purpose in enacting § 52-592 was to provide an enlarged statute of limitations in certain specific cases ... The purpose in enacting § 52-592, absent a clear declaration of contrary intent, was not to overturn the public policy of res adjudicata which is so deeply rooted in the laws of this state ... The language of § 52-592 as a whole indicates it was not intended to apply to actions which had been tried on the merits ..." Masterson v. Atherton, 223 F.Supp. 407, 411 (D.Conn. 1963), aff’d, 328 F.2d 106 (2d Cir. 1964). " Section 52-592 does not authorize the reinitiation of all actions not tried on ... [their] merits, only those that have failed for, among other reasons, any matter of form." (Internal quotation marks omitted.) Hughes v. Bemer, 206 Conn. 491, 494-95, 538 A.2d 703 (1988). " [A] judgment obtained through the grant of summary judgment against a plaintiff constitutes a judgment on the merits for purposes of res judicata." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, supra, 102 Conn.App. 311.
In Boone v. William W. Backus Hospital, supra, 102 Conn.App. 312-15, the plaintiff argued that § 52-592 applied to save his case. Specifically, the plaintiff argued that " the failure to disclose an expert within the time provided by the court’s scheduling order constituted a mistake within the ambit of § 52-592(a)." Id., 312-13. The defendant had filed a motion to preclude expert witnesses, to which the plaintiff did not object or appear at short calendar to argue against, and at a pretrial conference, the plaintiff argued that expert testimony was not required to prevail at trial. Id., 314.
The court in Boone held that the plaintiff’s conduct did not amount to a mistake as a matter of form under § 52-592(a). Id. " Although the plaintiff argue[d] that he did not have sufficient time to name an expert, the plaintiff did not file any motions with the court to that effect, nor did he make such claims at short calendar or at the pretrial conference. The plaintiff had ample time to respond to the court’s scheduling order. From August 2002, when the court entered the scheduling order, until March 2003, when the court granted the defendant’s motion to preclude, the plaintiff had approximately six months to provide the court with a credible explanation for his failure, or inability, to disclose an expert in a timely manner. Rather than pursuing this course of action, the plaintiff instead did not appear at short calendar and argued at the pretrial conference and then again on appeal ... that expert testimony was not required. This trial strategy having failed, the plaintiff now seeks to argue that his earlier inaction entitles him to relief under § 52-592(a)." Id., 314-15. The court concluded that § 52-592(a) was inapplicable " [d]ue to the fact that the plaintiff’s claims already had been decided on the merits, through the court’s rendering of summary judgment, and because the plaintiff’s conduct [did] not fall under any of the reasons designated in the accidental failure of suit statute ..." Id., 315.
In the present case, Al Dente’s conduct does not amount to a mistake as a matter of form under § 52-592. Similar to the plaintiff in Boone, Al Dente now claims that its earlier inaction constitutes a mistake as a matter of form. Al Dente, however, had ample opportunity in the underlying action to argue that the Consiglios’ alleged breach of a bidding agreement was undertaken in bad faith. Moreover, the underlying action was decided on its merits by way of summary judgment, and therefore, § 52-592 is inapplicable. " [A]lthough [§ 52-592] is required to [be] construe[d] broadly, given its remedial nature, it should not [be] construe[d] ... so broadly as to hamper a trial court’s ability to manage its docket by dismissing cases for appropriate transgressions." Gillum v. Yale University, 62 Conn.App. 775, 782, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001). Therefore, there is no genuine issue of material fact that § 52-592 does not save Al Dente’s counterclaims.
CONCLUSION
Based on the foregoing, the Consiglios’ motion for summary judgment as to Al Dente’s counterclaims is granted.
Because Al Dente is precluded by res judicata from bringing its counterclaims, it is unnecessary to consider whether the doctrine of collateral estoppel would similarly bar such claims.