Opinion
ANNCV166022156S
02-26-2018
Robert Zavalko v. Rebecca Wardlow
UNPUBLISHED OPINION
File Date: February 27, 2018
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Tyma, Theodore R., J.
MEMORANDUM OF DECISION
TYMA, J.
The defendant, Rebecca Wardlow, moves for summary judgment on the plaintiff’s complaint on the ground that the plaintiff’s case is barred by the doctrine of res judicta, brief review of the procedural history of the case is necessary.
In the first action (Zavalko I ), the plaintiff, Robert Zavalko, brought a single-count complaint against the defendant Thomas Wardlow for personal injuries he sustained on July 13, 2012, while working at Wardlow’s home. Zavalko alleged that he fell through the ceiling as a result of Wardlow’s negligence during the course of his work with Standard Oil of Connecticut, Inc. (Standard Oil). Zavalko claimed that Thomas Wardlow was liable to him for the defective condition because he possessed and/or controlled the premises.
On July 10, 2015, the plaintiff moved to cite in Rebecca Wardlow as an additional defendant, which motion was granted. The plaintiff then served an amended complaint against Rebecca Wardlow and alleged in the second count that she possessed and/or controlled the premises. As a result, Zavalko alleged in separate counts that both Thomas Wardlow and Rebecca Wardlow were responsible for the defective premises.
On December 7, 2015, Rebecca Wardlow filed a motion for summary judgment contending that Zavalko’s claims against her were barred by the two-year negligence statute of limitations in General Statutes § 52-584. In opposing summary judgment, Zavalko did not dispute that the statute of limitations had run. Rather, he claimed that the action was saved by General Statutes § 52-593, known as the wrong defendant statute, on the basis that he wrongfully alleged that Thomas Wardlow was the owner of the premises.
General Statutes § 52-593 provides in relevant part: " When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action."
The court, Stevens, J., granted Rebecca Wardlow’s motion for summary judgment on the ground that the statute of limitations had run. The court noted that § 52-593 did not apply because the action had not yet been terminated, as required by the statute. See Zavalko v. Wardlow, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-14-6013308-S (September 1, 2016, Stevens, J.) .
On November 30, 2016, approximately three months after the granting of summary judgment in Zavalko I, Zavalko commenced the present action (Zavalko II ) against Rebecca Wardlow by serving her with a two-count complaint. The complaint in Zavalko II repeats the same allegations against Rebecca Wardlow as in Zavalko I but includes allegations that the present action is brought pursuant to § § 52-592 and 52-593. Specifically, Zavalko alleges that count one is brought pursuant to § 52-593, the wrong defendant statute, in that the plaintiff failed to obtain a judgment in Zavalko I by failing to name Rebecca Wardlow as the proper defendant. In count two, Zavalko alleges that the action is brought pursuant to § 52-592 because Zavalko I has failed to be tried on its merits. On January 18, 2017, Standard Oil moved to intervene claiming a lien for workers’ compensation benefits that it had paid to Zavalko. The court granted the motion. On February 8, 2017, Rebecca Wardlow filed an answer to Zavalko’s complaint, and alleged special defenses of res judicata, the statute of limitations, and comparative negligence.
General Statutes § 52-592(a) provides the following in relevant part: " 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 ... the plaintiff ... 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." (Emphasis added.)
" 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). " In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact ... but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011). " Summary judgment is the appropriate method for resolving a claim of res judicata." Sotavento Corp. v. Coastal Pallet Corp., 102 Conn.App. 828, 833, 927 A.2d 351 (2007).
In the present action, Rebecca Wardlow moves for summary judgment on the ground that Zavalko’s case is barred by res judicata. She argues that the substantive allegations of both counts of the complaint in Zavalko II are the same as those in Zavalko I, that Zavalko I was fully and fairly litigated, and a final judgment entered in her favor on the merits by way of summary judgment. She also claims that the appellate case of Hall v. Gulaid, 165 Conn.App. 857, 140 A.3d 396 (2016) is controlling.
In response, Zavalko filed an objection to the motion for summary judgment and contends that Hall is not controlling because the remedial nature of § 52-593 is " in conflict with" the doctrine of res judicata. Zavalko claims that he commenced the present action within one year of the termination of Zavalko I, and the present action is saved by § 52-593. A fair reading of Zavalko’s argument is that § 52-593, a remedial statute, creates an exception to res judicata.
" Res judicata is a doctrine grounded in public policy. Its primary function is to prevent the relitigation of issues already decided in a court of competent jurisdiction ... The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action that were actually made or that might have been made ... Connecticut’s res judicata rules are derived from the theory of merger and the transactional test set out in the Restatement (Second) of Judgments ... Merger, or the extinguishing of the plaintiffs’ original claims through the rendering of final judgment, has its roots in early case law ... When the plaintiff recovers a valid and final personal judgment, his original claim is extinguished and rights upon the judgment are substituted for it. The plaintiff’s original claim is said to be merged in the judgment ... The transactional test measures the preclusive effect of a prior judgment, which includes any claims relating to the cause of action that were actually made or might have been made ... A cause of action for the purpose of the transactional test is the group of facts which is claimed to have brought about an unlawful injury to the plaintiff ..." (Citations omitted; internal quotation marks omitted.) Legassey v. Shulansky, 28 Conn.App. 653, 656-57, 611 A.2d 930 (1992). Furthermore, the " [a]pplication of the doctrine of res judicata requires that there be a previous judgment on the merits." Id., 658.
" 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 doctrine, however, " 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.) Id., 158.
The court must determine whether Zavalko’s negligence action against Rebecca Wardlow is barred by res judicata, or whether res judicata is inapplicable to remedial statutes such as § § 52-592 and 52-593. The first two elements are met. The granting of summary judgment is a final judgment on the merits. See Boone v. William W. Backus Hospital, 102 Conn.App. 305, 311, 925 A.2d 432 (" 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] ), cert. denied, 284 Conn. 906, 931 A.2d 261 (2007) In Zavalko I, judgment was obtained through the granting of summary judgment, and there was no dispute that the action against Rebecca Wardlow was brought beyond the negligence statute of limitations. Furthermore, both Zavalko and Rebecca Wardlow were parties to Zavalko I .
In his memorandum in opposition to the motion for summary judgment, Zavalko only briefs the issue of the applicability of § 52-593, and not § 52-592. However, because Zavalko alleges in his complaint that the present action is saved by § 52-592, the court must consider both statutes.
Regarding the third element, " [r]es judicata bars the litigation of claims actually made in the prior action as well as any claims that might have been made there." (Footnote omitted; internal quotation marks omitted.) Wheeler v. Beachcroft, LLC, supra, 320 Conn. 157. " [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 ... 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 in original; internal quotation marks omitted.) Sotavento Corp. v. Coastal Pallet Corp., supra, 102 Conn.App. 834.
In Zavalko I, the plaintiff not only had the opportunity to litigate his case against Rebecca Wardlow, but actually did so. Zavalko added Rebecca Wardlow as a defendant in the original action claiming that both Thomas Wardlow and Rebecca Wardlow were liable to him for his injuries. Rebecca Wardlow moved for summary judgment based on the statute of limitations, which was granted over Zavalko’s contention that § 52-593 saved the action. Significantly, as previously noted, Zavalko did not contest that the statute of limitations had run prior to him commencing the action against her.
The fourth element requires the same underlying claims to be at issue. " To determine whether claims are the same for res judicata purposes, this court has adopted the transactional test ... 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 rose." (Citation omitted; internal quotation marks omitted.) Wheeler v. Beachcroft, LLC, supra, 320 Conn. 159.
In the present case, there is not, and cannot be, any dispute that the issues are the same in Zavalko I as they are here. The allegations in both complaints are based on the same underlying facts, namely, that Rebecca Wardlow is liable to Zavalko for his injuries based on her possession and/or control of the premises.
In an attempt to avoid the statute of limitations decided against him, Zavalko claims that res judicata is inapplicable to a case brought pursuant to the two savings statutes as here, and that Hall does not govern the outcome of this case. The court disagrees, and considers Hall controlling. In Hall, our Appellate Court expressly rejected " the plaintiff’s invitation to create an exception to the principles of res judicata in an action brought under § 52-593." Hall v. Gulaid, supra, 165 Conn.App. 866.
In Hall, the sole issue on appeal was whether the trial court improperly concluded that the plaintiff’s negligence action brought pursuant to § 52-593 was barred by res judicata. Id., 858. " The crux of the plaintiff’s argument on appeal is that the doctrine of res judicata should not be applied to § 52-593, a remedial statute. This argument is premised on the plaintiff’s belief that neither of his previous two actions were ever tried on the merits of the underlying negligence claim." (Footnote omitted; internal quotation marks omitted.) Id., 863-64.
The plaintiff commenced his original action against Osman Gulaid alleging that his negligent operation of his vehicle caused the plaintiff injuries. Id., 859. Osman moved for summary judgment claiming that he was not the operator of the vehicle, and the trial court granted the motion. Id., 860. The plaintiff commenced a second action that alleged that Gulaid Gulaid was the operator of the vehicle and Osman was the owner. Id. Osman and Gulaid both moved for summary judgment on the ground that the negligence statute of limitations had run. The court granted the motion concluding that the action was barred by the statute of limitations. Id., 861.
The plaintiff commenced a third action solely against Gulaid, alleging that his action was being brought pursuant to § 52-593. Id. Gulaid filed a motion for summary judgment claiming that the statute of limitations had run, res judicata barred the action, and § 52-593 could not save the action. Id. The trial court granted the motion for summary judgment concluding that res judicata barred the action because the entry of summary judgment in the second action precluded the claim brought in the third action. Id ., 862.
" [T]he plaintiff’s contention that res judicata is inapplicable in a case involving a remedial statute is not supported by case law. On the contrary, our Supreme Court has explained that as pertaining to General Statutes § 52-592, it did not discern ... [an] intent to create an exception to the principles of res judicata that require, at some point, an end to litigation ... Because we have stated that the purpose and language of ... § § 52-592 and 52-593 are closely analogous ... we apply our Supreme Court’s reasoning ... and do not accept the plaintiff’s invitation to create an exception to the principles of res judicata in an action brought under § 52-593." (Citations omitted; internal quotation marks omitted.) Id., 865-66.
Hall is analogous to the present case, and is on point. Here, the plaintiff is making the same argument that was clearly rejected in Hall that res judicata should not be applied in this case because remedial statutes § § 52-592 and 52-593 apply. Based on the court’s decision in Hall, this court concludes that the savings statutes alleged by Zavalko do not create an exception to the principles of res judicata. Accordingly, Zavalko’s claims must fail.
For the foregoing reasons, the court grants Rebecca Wardlow’s motion for summary judgment.