Opinion
No. CV04-0185006S
February 1, 2008
MEMORANDUM OF DECISION
I. INTRODUCTION
In their Motion for Summary Judgment dated October 12, 2007, and supplemented by a Reply dated January 10, 2008, it is the position of the Defendants/Bella Vista Condominium Association et al. ("Bella Vista Condos") that the issues raised previously in this case were raised by the Plaintiff/Mr. Byars ("Mr. Byars") and determined by a trial court, which decision was then sustained by the Appellate Court. That prior action was brought by Bella Vista Condos against Mr. Byars to foreclose its statutory lien for unpaid common charges. As such, it is the position of Bella Vista Condos that Mr. Byars' attempt, actually litigated and determined in the prior lawsuit, to relitigate the issues should be barred by the doctrines of collateral estoppel and res judicata.
Bella Vista Condominium Ass'n v. Dennis Byars. Not reported in A.2d, 205 WL 3292533 (Conn.Super. 2005).
Bella Vista Condominium Ass'n v. Dennis Byars, 102 Conn.App. 245, 925 A.2d 365, (2007).
In his "Objection to All Defendants' Motions for Summary Judgment" dated December 31, 2007, Mr. Byars argues that the trial court and Appellate Court didn't consider issues of the defendants' "extortion and intimidation," "conspiring to keep the illegal board and affiliates in power through intimidation," "the false affidavit of Delores Smith," the "perjury and obstruction of justice" of Thomas O'Connell, and that therefore the motion for summary judgment should be denied.
A hearing was held, on the Summary Judgment Motion and the Objection, on January 10, 2008. Both Delores Smith and Thomas O'Connell voluntarily were present in court in the event Mr. Byars sought their testimony in his presentation of his opposition to the summary judgment motion. Mr. Byars did call Mr. O'Connell as a witness; Mr. Byars declined to call Ms. Smith as a witness. Both sides to the motion took advantage of their opportunity to present oral argument to the court at the hearing. The parties also submitted the written memorandum of law referenced above. Also considered were the exhibits and attachments submitted by the parties.
II. LEGAL STANDARD FOR SUMMARY JUDGMENT, RES JUDICATA AND COLLATERAL ESTOPPEL
As a preliminary matter, the court sets forth the applicable governing legal principles.
A. SUMMARY JUDGMENT
A motion for summary judgment is the appropriate method for disposing of a claim by way of the doctrines of res judicata or collateral estoppel. Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712 (1993). 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." Brown v. Soh, 280 Conn. 494, 500-01, 909 A.2d 43 (2006); Practice Book § 17-49. The party moving for summary judgment bears the burden of proving the absence of a genuine dispute as to any material fact; and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "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." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Zielinski v. Kotsoris, supra, 279 Conn. 318. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Brown v. Soh, supra, 280 Conn. 501.
B. RES JUDICATA AND COLLATERAL ESTOPPEL
"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." (Citations omitted.) Wade's Dairy, Inc. v. Fairfield, 181 Conn. 556, 559-60, 436 A.2d 24 (1980). "Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum . . . Dowling v. Finley Associates, Inc., 248 Conn. 364, 373, 727 A.2d 1245 (1999). More specifically, collateral estoppel, or issue preclusion . . . prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim. Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 58, 808 A.2d 1107 (2002); RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001). An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . 1 Restatement (Second), Judgments § 27, comment (d) (1982). An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. F. James G. Hazard, Civil Procedure (3d Ed. 1985) § 11.19 . . . Dowling v. Finley Associates, Inc., supra, 374." (Internal quotation marks omitted.) Efthimiou v. Smith, 268 Conn. 499, 506-07, 846 A.2d 222 (2004). Powell v. Infinity Ins. Co., 282 Conn. 594, 601, 922 A.2d 1073 (2007).
The Supreme Court recently has observed, in Powell v. Infinity, supra at 601, that whether to apply either doctrine [of collateral estoppel or res judicata] in any particular case "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 citation omitted).
III. LITIGATION BACKGROUND OF THESE PARTIES
In the prior trial court action, Bella Vista Condos sought to foreclose a statutory lien for unpaid common assessments levied pursuant to the Common Interest Ownership Act, General Statutes §§ 47-200 through 47-295. The trial court found Mr. Byars liable on the debt and ordered a foreclosure by sale, concluding that the common fees for 2003 and 2004 were determined pursuant to budgets validly adopted.
Bella Vista Condominium Ass'n v. Dennis Byars. Not reported in A.2d, 205 WL 3292533 (Conn.Super. 2005).
The defendant, Mr. Byars, appealed from this judgment of the trial court. In his appeal, Mr. Byars claimed that the trial court improperly (1) found that Bella Vista Condo's executive board was constituted properly to adopt the budgets of March 5 and December 4, 2003, to charge him common fees pursuant to those budgets and to initiate this foreclosure action, (2) found that he was the owner of the condominium at the time the common fees were due and (3) failed to award him relief pursuant to General Statutes § 47-278. In a thorough decision, the Appellate Court affirmed the judgment of the trial court. It is helpful at this juncture to capture portions of the lengthy decision of the Appellate Court, found at Bella Vista Condominium Assn, Inc. v. Byars, 102 Conn.App. 245 (2007).
Bella Vista Condominium Ass'n v. Dennis Byars, 102 Conn.App. 245, 925 A.2d 365, (2007).
First, the Appellate Court determined certain facts found by the trial court relevant to Mr. Byars' appeal. Specifically, the Appellate Court found that: Mr. Byars is the owner of 276 Waterville Street, a unit in a condominium complex in Waterbury, and has been the owner since at least April 4, 2003; Bella Vista Condo is a nonstock Connecticut corporation in good standing and the unit owners' association for the condominium; and, that the common charges for the period from April 4, 2003, were $171 per unit per month. The Appellate Court determined that the common fees for 2003 and 2004 were set pursuant to budgets validly adopted on March 5 and December 4, 2003, respectively; that Mr. Byars admitted that he had not paid any of these charges; and, at the time that Bella Vista Condos adopted the March 5, 2003 budget, its executive board consisted of three members, one of whom was not a unit owner, though he was a resident. The Appellate Court noted that the trial court did not make a specific finding of the composition of the board when the 2004 budget was adopted on December 4, 2003, but the Appellate Court found: "There is evidence in the record, however, which suggests that the board consisted of one unit owner, one person who was not a unit owner, and one resident who was the husband of the unit owner on record and whose status as a unit owner, under the statute and the plaintiff's bylaws, is ambiguous." Id. at 247.
Following its determination of the facts, the Appellate Court ruled on Mr. Byars' claims of trial court error. It disagreed with Mr. Byars' first claim that the executive board of Bella Vista Condos was not constituted in conformity with General Statutes § 47-243 and its own bylaws and, therefore, that its actions in adopting budgets and instituting this foreclosure were invalid. The Appellate Court stated, at 249, that "Executive board membership is governed by General Statutes § 47-245(f). Section 47-245(f) provides that only a majority of board members must be unit owners. Section 2.1 of the plaintiff's bylaws, which governs executive board membership, also provides that only a majority of the board must be unit owners." The Appellate Court was then able to "conclude that the [trial] court properly determined that neither the act nor the plaintiff's bylaws require each executive board member to be a unit owner. Instead, the clear language of both requires that only a majority of board members be unit owners. The record shows that the majority of board members were unit owners at the time the 2003 budget was adopted, and that its composition did not change until after the plaintiff commenced this action." Id. at 249.
The Appellate Court next ruled on Mr. Byars' claim that Bella Vista Condo's bylaws require the executive board to have four members in order to conduct business and that a quorum of four was lacking when the board adopted the budgets for 2003 and 2004 and when it authorized the foreclosure action. The Appellate Court engaged in a lengthy consideration of the bylaws and stated: "We conclude that the [trial] court properly determined that the bylaws require only three members, a majority, of the board to conduct business. Further, in this case there were three members of the board, sufficient to constitute a majority present at the time relevant to the adoption of the budgets and the initiation of the foreclosure action." Id. at 249.
The Appellate Court then proceeded to determine whether the bylaws require a minimum of three unit owners to be numbered among the necessary quorum of three required to conduct business or if two is sufficient. "We consider the policy of the act . . . that a condominium association should not be found to be operating without a budget or ability to collect common fees. [Citation omitted.] This policy suggests that, in cases of doubt, ambiguous terms should be interpreted in favor of finding that the condominium association has the authority to levy and collect fees, which includes the ability to collect those fees by resorting to court when other means prove fruitless. We conclude that the bylaws authorize the board to act when two of the three board members, required by [bylaws] § 2.12, are unit owners and one is not an owner." At 251. The trial court determined that at the time the March 5, 2003 budget was passed, the board consisted of two unit owners and one person who did not own a unit. Further, the record indicates that the composition of the board did not change between the time of the March 5, 2003 budget meeting and the plaintiff's commencement of the action of foreclosure. Therefore, the Appellate Court concluded that there was a quorum present and that those actions of the Board Condo were valid. Id. at 252.
The Appellate Court went even further in its consideration of Mr. Byars' special defenses and observed that the executive board that adopted the 2004 budget, on December 4, 2003, may have been improperly constituted, having less than the required minimum number of unit owners. "This, however, is of little avail to [Mr. Byars]. When a budget, apparently adopted, of an association covered by the act fails to be adopted properly, the association is presumed to operate on the previous validly adopted budget. Moreover, the 2004 budget, like all others, was ratified by the association at its annual meeting. Thus, even though the budget passed on December 4, 2003, may have been passed irregularly, the defendant was still liable to pay the common fees pursuant to the budget validly adopted on March 5, 2003. Therefore, the defendant's claim as to the 2004 common charges fails." Id. at 252.
The Appellate Court then addressed Mr. Byars' final claim of error by the trial court: that the deed to his premises is invalid, therefore he is not liable to pay the common fees. The Appellate Court also disagreed with this final claim. "[Mr. Byars'] argument appears to be that Dolores Smith, who signed the deed on behalf of the plaintiff, was not a duly authorized officer of the plaintiff at the time of the transaction. [Mr. Byars] does not cite any case law, statute or provision of the declaration or the bylaws requiring that the plaintiff's representative at a unit sale be a valid board member. The [trial] court found that the defendant received the benefits of the services provided by the association. [Mr. Byars] admits that he was represented by counsel at the time he purchased the unit. The [trial] court found that the deed was signed by Smith as the duly authorized secretary of the association on December 18, 2002. The record contains an affidavit from Smith stating that she was the secretary on that date. The [trial] court found that she was a validly elected officer of [Bella Vista Condos] on that date, and this is supported by the record." Even if there were some technical defect in Smith's position as secretary at the time of the sale, general rules of agency law provide that "[t]he other party to a contract made by an agent for a disclosed . . . principal, acting within his . . . apparent authority . . . is liable to the principal . . ." An agent has apparent authority to represent the principal when "a principal through his own acts or inadvertences, causes or allows third persons to believe his agent possesses" such authority. The defendant here was represented by counsel at the time he signed the deed and has subsequently enjoyed the benefits of condominium ownership. The defendant has waived his ability to challenge Smith's validity as agent of the plaintiff. The Appellate Court concluded that Mr. Byars was the owner of the unit for purposes of common fee liability during the relevant periods. Id. at 254.
In summary, the Appellate Court affirmed the trial court's decision, which was reached after both sides had a full and fair opportunity to litigate all the issues, raised in the complaint and special defenses in their entirety. The case was remanded for the purpose of setting a new sale date in the foreclosure action.
IV. PRESENT ACTION A. PLAINTIFF'S POSITION
The operative Complaint in this case is Mr. Byars' Revised Complaint dated February 28th, 2005 ("Revised Complaint"). This Revised Complaint names Steven G. Berg, Connecticut Condo Connection, Cathy Luciano, Dolores Smith, Tom O'Connell, and Paul Hynard as Defendants. In the Revised Complaint, there are fifteen separately lettered "counts" (lettered "A" through "O") against the five remaining defendants. As to each of the five remaining defendants, Mr. Byars sets forth the same three "causes of action." The "First Cause of Action" against each defendant is for "Fraudulent Misrepresentation." The "Second Cause of Action" against each defendant is for "Aiding and Abetting." The "Third Cause of Action" is entitled "Harm," and does not set forth a separate cause of action, but rather alleges the damages and harm that Mr. Byars claims were caused by the "fraudulent misrepresentation."
On July 28, 2004, the Honorable Salvatore Agati granted the Defendant Paul Hynard's Motion to Dismiss and as a result, Mr. Hynard has been removed as a party in this case.
Mr. Byars' "Fraudulent Misrepresentation," "Aiding and Abetting," and "Harm" claims against the Defendants Connecticut Condo Connection and Cathy Luciano are substantively identical, differing only in the name of the defendant identified. The Fraudulent Misrepresentation claim against these defendants alleges that the executive board of the Bella Vista Condominium Association was not "legally constituted" at the time Mr. Byars purchased his condominium unit located at 275 Waterville Street and as a result did not have "the authority to make contracts, or to hire" Connecticut Condo Connection and Cathy Luciano to manage the condominium complex, or to collect condominium fees, or to sell the Plaintiff his condominium. Mr. Byars claims he relied on these misrepresentations at the time of the closing on his condominium, April 4, 2003.
Mr. Byars' "Aiding and Abetting" claim contains additional allegations relating to these same factual issues and all of which continue to question the validity of the executive board and its authority to enter into a contract for the sale of his condominium in April 2003, to pass "yearly budgets," to collect condominium fees, and to subsequently commence a foreclosure action against him for non-payment of those condominium fees. Mr. Byars claims that the executive board was not validly constituted because it violated the Association's Bylaws with respect to unit owner membership and quorum requirements. He has an issue with the service of tenant Tom O'Connell on the executive board as a non-unit owner; and he claims that Delores H. Smith (who was the Association's secretary at the time of the sale of his condominium, Bella Vista Condominium Association, Inc. v. Byars, 102 Conn.App. 245, 253 (2007)) lacked the authority to sign the deed to his condominium.
Mr. Byars' "Harm" claim is the only cause of action that specifically claims damages. In that claim, he alleges that the defendants engaged in "fraudulent misrepresentation" in that it "knew or should have known there was no legally constituted executive board voted in by ballots cast by Unit Owners to authorize the sale" of his condominium; or to have "Delores H. Smith" sign the deed for his condominium; or to collect condominium fees and commence a foreclosure action. As a result of these alleged actions, Mr. Byars claims that he suffered emotional distress and that his condominium "cannot be passed on to the Plaintiff's heirs."
B. DEFENDANTS' POSITION
The Defendants argue, in this summary judgment motion that the plaintiff's claims are barred by the Doctrines of Res Judicata and Collateral Estoppel. It is the Defendants' position, in prosecuting this summary judgment motion, that res judiciata bars Mr. Byars from litigating the present claims of "Fraudulent Misrepresentation," "Aiding and Abetting," and "Harm."
V. DECISION ON SUMMARY JUDGMENT MOTION
The court finds that Mr. Byars' claims in this matter are in substance the same as raised as special defenses in the prior foreclosure matter. The claims in both cases allege that Bella Vista Condo's Executive Board was illegally constituted and, as a result, lacked the authority to sell Mr. Byars his condominium, impose common charges on him, and commence the foreclosure actions. Mr. Byars' claims in both actions involve essentially the same parties, the same witnesses, arise from the same events, and allege violation of the same sections of the General Statutes and Bella Vista Condo Association bylaws. While, in the present action, Mr. Byars uses the terms of "fraud" and "misrepresentation" to describe his claims, it is and was his fundamental position, in both actions, that the Bella Vista Condo Association, its officers and members, knowingly proceeded against him under false pretenses when it engaged in the same series of transactions: selling him the condominium, pursuing common charges from him, and finally, commencing the action to foreclose its statutory lien. "An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered." (Citations omitted). Powell v. Infinity Ins. Co., 282 Conn. 594, 600 (2007). The doctrine of collateral estoppel or issue preclusion "prevents parties' relitigation of an issue that was (a) raised, (b) litigated, and (c) actually decided by a judgment in their prior proceeding, regardless of whether two suits are based on the same cause of action." Prime Management Co., Inc. v. Steineeger, 904 F.2d 811, 814 (2nd Cir. 1990).
In this case, Mr. Byars' claims of "fraud" turn on whether the defendants knowingly proceeded against him under a false pretense when they engaged in the same series of transactions that were the subject of the foreclosure action. As alleged by Mr. Byars, the executive board committed "fraud" because the board was not validly constituted and the defendants knew that the board lacked the authority to sell his condominium, pursue the common charges from him, and eventually commence the action to foreclose its statutory lien.
However, the judgment rendered by the Appellate Court in that foreclosure action determined that the Defendants' actions were not taken under a false pretense. The Appellate Court held that Mr. Byars was the unit owner and that the Board had the authority to impose common charges upon him and commence the foreclosure action. "The judicially-created doctrine of collateral estoppel, or issue preclusion, bars a party from relitigating in a subsequent proceeding an issue of fact or law that was clearly raised in prior action where the party to be precluded, here the petitioner, had a full and fair opportunity to litigate issue [citation omitted], and a decision on that issue was necessary to support a valid and final judgment on merits. [Citation omitted]. The doctrine serves to `relieve the parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and by preventing inconsistent decisions, encourage reliance on adjudication.'" Allen v. McCurry, 449 U.S. 90, 94 (1980); Environmental Defense v. U.S. E.P.A., 369 F.3d 193, 202 (2nd Cir. 2004). Under general principles of "collateral estoppel," or "issue preclusion," a judgment in a prior proceeding bars a party and its privies from relitigating an issue if, but only if: (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3) there was full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits. In that this court finds that, Mr. Byars' claims in this case are, in fact, the exact same claims he unsuccessfully raised in the foreclosure action, except that Mr. Byars has attached a "fraud" label to them, this court applies the general principles of collateral estoppel to bar Mr. Byars from relitigating the same issues, in this latest proceeding. The defendants' summary judgment motion is granted.
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