Opinion
No. CV 96 0155519 S
January 28, 2004
MEMORANDUM OF DECISION
The plaintiff in this matter is a skilled nursing facility seeking compensation for services rendered to Diana Kosminer, an incapable person. The defendants are J. Michael Cantore ("Cantore"), Conservator of the person and estate of Kosminer, and Continental Casualty Company ("Continental"), an insurance company that acted as surety on a $50,000 probate bond filed with the Probate Court pursuant to General Statutes § 45a-139.
Background and Procedural History
On June 8, 1987, the Probate Court appointed Cantore as conservator of the person and estate of Kosminer. Cantore executed and filed with the court a probate bond in the amount of $50,000, naming himself as principal and Continental as surety. The bond provided that it was conditioned, as required by § 45a-139, on Cantore "faithfully perform[ing] the duties of his trust and administer[ing] and account[ing] for all monies and other property coming into his hands, as fiduciary, according to law . . ." On August 29, 1989, upon Cantore's request, Kosminer was admitted to the plaintiff's facility as a "private, self pay" resident, where she remained until her death in 1995. At the time of Kosminer's admittance, her estate had assets of approximately $160,000. Despite the ample resources of the estate, Cantore failed to make timely payment to the plaintiff for the care and services provided to Kosminer. Instead, on May 2, 1990, more than eight months after Kosminer had been admitted to the plaintiff's facility, Cantore made an initial application on Kosminer's behalf to the department of income maintenance (department) for Title XIX (medicaid) assistance, which, if Kosminer had been eligible, would have paid for the cost of her care. This initial application was denied on the ground that Cantore had failed to provide the department with information to verify that Kosminer's assets did not exceed $1600, the maximum amount permitted for medicaid eligibility.
The foregoing facts arc set forth in the Supreme Court's decision in The Jewish Home for the Elderly v. Cantore, 257 Conn. 531, 778 A.2d 93 (2001).
In 1991, the plaintiff commenced litigation in Superior Court against defendant Cantore only. ( The Jewish Home for the Elderly v. Cantore, CV 91 0284225 S (the "1991 action.") During the pendency of that litigation defendant Cantore made several additional unsuccessful attempts to qualify his ward for Title XIX benefits. Finally on July 17, 1992 Cantore's fourth application for medicaid benefits of July 17, 1992, was granted, retroactive to June 1, 1992.
On April 13, 1993, the plaintiff and defendant, Cantore entered into a "Stipulated Judgment" in the 1991 action. The "Stipulated Judgment" fixed the debt at $87,597.37. In the stipulation, Cantore agreed to pursue a pending appeal of a denial of Title XIX coverage and to pay the judgment personally to the extent that Title XIX coverage was not available.
The present action was commenced in 1996 after the Probate Court for the District of Stamford (Fox, J.) granted plaintiff's application for permission to bring action under General Statutes § 45a-98. The complaint seeks to recover the same debt that was the subject of the 1991 action. The only substantive difference between the two actions is that Continental is a party to the present action while that defendant was not named in the 1991 action.
A motion to strike plaintiff's complaint for failure to state a cause of action was granted by the Superior Court and judgment was subsequently entered in favor of the defendants. That judgment was appealed to the Appellate Court which affirmed the decision of the Superior Court 58 Conn. App. 1, 752 A.2d 1117 (2000). Following a grant of certification, the Supreme Court reversed the decisions of the Appellate Court and the Superior Court and remanded the case for further proceedings. 257 Conn. 531, 778 A.2d 93 (2001).
Motion for Summary Judgment
Before the court is the defendants' motion for summary judgment. That motion is based upon the claim that a judgment was obtained against defendant, Cantore, in April 1993 and the principal of res judicata prevents the plaintiff from pursuing the present action. Under Practice Book Section 17-49 summary judgment may be rendered "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."
Summary judgment is appropriate for cases involving issues such as res judicata. Joe's Pizza, Inc. v. Aetna Life Casualty Co., 236 Conn. 863, 676 A.2d 441 (1996) "Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim." DeMilo Co. v. Commissioner of Motor Vehicles, 233 Conn. 281, 292, 659 A.2d 162 (1995); New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals Health Care, 226 Conn. 105, 128, 627 A.2d 1257 (1993).
The judicial doctrine of res judicata "`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." Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 32, 633 A.2d 1368 (1993). However the doctrine only applies when the prior action ended in a "final judgment." Dowling v. Finley Associates, Inc., 248 Conn. 364, 373, 727 A.2d 1245 (1999). Knoblaugh v. Marrshall, 64 Conn. App. 32, 36 ( 779 A.2d 218 2001).
In their submissions all parties assumed that the 1991 action was terminated by a final judgment in favor of the plaintiff. In support of their motion for summary judgment the defendants appended to the motion a copy of a document entitled "Stipulated Judgment" which bore only the signatures of counsel for the plaintiff and Cantore. That document was not signed by a judge or a clerk of the court. No copy of a judgment was submitted by either party in connection with the pending motion.
The court is entitled to take judicial notice of court files of other actions between the same parties. Hryniewicz v. Wilson 51 Conn. App. 440, 444, 722 A.2d 288 (1999) Carpenter v. Planning Zoning Commission, 176 Conn. 581, 591, 409 A.2d 1029 (1979). In re Mark C., 28 Conn. App. 247, 253, 610 A.2d 181 cert. denied, 223 Conn. 922, 614 A.2d 823 (1992); see also McCarthy v. Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S.Ct. 3220, 110 L.Ed.2d 667 (1990). In an effort to determine whether the parties are correct in their assumption that the 1991 action terminated in a final judgment the court sought to obtain a copy of the judgment from the clerk's office. The clerk's office could not produce a copy of a judgment from their files. The only pleading in the file subsequent to the "Stipulated Judgment" was a December 17, 2001 motion filed by Cantore to "reopen the judgment" and the plaintiff's opposition thereto. These pleadings were not acted on by the court.
Under these circumstances the court cannot determine that a final judgment was ever entered in the 1991 action. An issue of fact exists which precludes the granting of defendants' motion for summary judgment. Accordingly that motion is denied.
Trial in this matter is scheduled for the week of February 9, 2004. On December 17, 2003, Plaintiff filed an application for permission to file a cross motion for summary judgment. The motion for summary judgment which plaintiff intends to file assumes that the 1991 action ended in the entry of a final judgment. As stated above, the court has determined that an issue of fact exists with respect to whether any such judgment was entered. It follows that no purpose would be served by entertaining plaintiff's motion for summary judgment. Therefore, plaintiff's motion for permission to file a motion for summary judgment is denied.
DAVID R. TOBIN, JUDGE.