Opinion
No. CV 02-0816676 S
September 22, 2003
MEMORANDUM OF DECISION RE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT
I. FACTS
On May 16, 2002, the plaintiffs, Devin and Anna O'Nalty, filed a one-count complaint alleging a cause of action for fraudulent misrepresentation against the defendant, Brian Scagliola d/b/a Zenith Enterprises (Zenith). The complaint alleges the following facts. The O'Naltys were the owners of real property located at 25 Warren Terrace in West Hartford, Connecticut (subject property). On December 31, 1997, Scagliola, either in his capacity as an agent of Zenith or as Brian Scagliola d/b/a Zenith, induced the O'Naltys, by way of fraud, to execute both a written contract for the sale of the subject property to Zenith and a warranty deed transferring title of the subject property to Zenith.
This matter arises from a prior civil action brought in the judicial district of New Britain bearing the docket number CV 98 0489290 ( Scagliola I) in which the O'Naltys filed a two-count complaint alleging causes of action for fraudulent misrepresentation and a violation of the Connecticut Unfair Trade Practices Act, § 42-110a et seq., against both Scagliola, individually, and Zenith. The trial court, Shortall, J., granted Scagliola's motion to dismiss on the ground that the court lacked personal jurisdiction over him due to the O'Naltys' failure to effectuate proper service of process on him. O'Nalty v. Scagliola, Superior Court, judicial district of New Britain, Docket No. CV 98 0489290 (January 7, 2002, Shortall, J.). The court, after trial, concluded that Zenith was the alter ego of Scagliola and, therefore, all the actions of Scagliola constituted the actions of Zenith. Id. The court entered judgment against Zenith in the amount of $4,616 in compensatory damages, $4,616 in punitive damages and $8,000 in attorneys fees. Id. CT Page 10880-ag
In the matter now before this court, Scagliola filed an answer and special defenses in which he denied that the contract and warranty deed were obtained by way of fraud. Scagliola asserts the following three special defenses. First, that the O'Naltys' claims are barred by General Statutes § 52-577. Second, that the accidental failure of suit statute, General Statutes § 52-592, is inapplicable. Finally, that the O'Naltys' claims are barred by the doctrine of res judicata.
On January 31, 2003, the O'Naltys filed a motion for summary judgment, accompanied by a memorandum of law and documentary evidence in support, as to the complaint on the ground that no genuine issues of material fact exist and they are entitled to summary judgment as a mater of law because Scagliola is precluded under the doctrine of collateral estoppel from contesting the findings of fact and law as determined by the trial court in Scagliola I. On February 13, 2003, Scagliola filed an objection and his own cross motion for summary judgment on the grounds that no genuine issues of material fact exist and he is entitled to summary judgment as a matter of law because (1) the O'Naltys are barred from bringing this action pursuant to § 52-577; (2) § 52-592 is inapplicable; and (3) the O'Naltys' claims are barred under the doctrine of res judicata. On April 14, 2003, the O'Naltys filed a memorandum of law in opposition to Scagliola's cross motion.
The O'Naltys submitted the following exhibits in support of their motion for summary judgment: a copy of the trial court's memorandum of decision in Scagliola I, (Exhibit A); a copy of the trial court's findings and orders in Scagliola I, (Exhibit B); and a copy of the bill for service of process, (Exhibit C).
Scagliola submitted the following exhibits in support of his cross motion for summary judgment: a copy of the case detail regarding Scagliola I from the state's judicial website, (Exhibit A); a copy of the O'Naltys' summons and complaint from Scagliola I, (Exhibit B); and a copy of the O'Naltys' summons and complaint from this action, (Exhibit C).
II DISCUSSION
"Pursuant to Practice Book § 17-49, 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." (Citation omitted; internal quotation marks omitted.) Niehaus v. Cowles Business Media, Inc., 263 Conn. 178, 188, 819 A.2d 765 (2003). "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." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003).
The O'Naltys move for summary judgment on the ground that no genuine issues of material fact exist and they are entitled to summary judgment CT Page 10880-ah as a matter of law because Scagliola is barred by the doctrine of collateral estoppel from contesting the findings of fact and law determined by the trial court in Scagliola I. Specifically, the O'Naltys argue that each material fact alleged in their complaint was already adjudicated in Scagliola I, wherein the trial court determined that Zenith was the alter ego of Scagliola; that Scagliola, through Zenith, made false representations; and, that as a result of these false representations, the O'Naltys suffered compensatory damages in the amount of $4,616, punitive damages in the amount of $4,616 and were awarded attorneys fees in the amount of $8,000. The O'Naltys further argue that since Scagliola maintains a privity relationship with Zenith, and because the issues raised in this action were fully and fairly litigated in Scagliola I, no genuine issues of material fact exist and, therefore, they are entitled to summary judgment as a matter of law under the doctrine of collateral estoppel.
Scagliola sets forth three arguments in his opposition to the O'Naltys' motion for summary judgment and in support of his cross motion for summary judgment. First, Scagliola contends that the O'Naltys' action is barred by the three-year statute of limitations set forth in § 52-577. Specifically, Scagliola argues that the alleged conduct as pleaded by the O'Naltys occurred more than three years ago and, therefore, the O'Naltys are barred as a matter of law from bringing this action. Second, Scagliola maintains that § 52-592 is inapplicable to the O'Naltys' action because the original action, Scagliola I, went to judgment on the merits. Finally, Scagliola contends that the O'Naltys' action is barred under the doctrine of res judicata.
A.
Three-year Statute of Limitations Pursuant to § 52-577 and the Applicability of § 52-592 (a), the Accidental Failure of Suit Statute
"No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." General Statutes § 52-577. "Section 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs." (Internal quotation marks omitted.) Collum v. Chapin, 40 Conn. App. 449, 451, 671 A.2d 1329 (1996). "[T]ort claims are governed by a three year statute of limitations . . ." Krondes v. Norwalk Savings Society, 53 Conn. App. 102, 113, 728 A.2d 1103 (1999).
The O'Naltys allege that the tortious conduct occurred on December 31, CT Page 10880-ai 1997. (Complaint, ¶¶ 4 5.) Therefore, pursuant to § 52-577, the O'Naltys were required to commence their action within three years from that date. On January 7, 2002, in Scagliola I, the trial court, Shortall, J., concluded that the O'Naltys timely commenced their original action on July 20, 1998; however, the trial court found that since the O'Naltys improperly effectuated service of process on Scagliola, the court lacked personal jurisdiction over Scagliola, and the court subsequently dismissed the action as to him. O'Nalty v. Scagliola, supra, Superior Court, Docket No. CV 98 0489290. The O'Naltys, pursuant to § 52-592 (a), commenced the present action against Scagliola on May 10, 2002.
General Statutes § 52-592 (a) provides 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 . . . 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."
"[T]o enjoy the protection of § 52-592 (a), a plaintiff must file an action `for the same cause at any time within one year after the determination of the original action . . .'" Caffery v. Stillman, 79 Conn. App. 192, 196 (2003). "Section 52-592 by its plain language, is designed to prevent a miscarriage of justice if the plaintiffs fail to get a proper day in court due to the various enumerated procedural problems . . . It was adopted to avoid hardships arising from an unbending enforcement of limitation statutes . . . Its purpose is to aid the diligent suitor . . . Indeed, our Supreme Court has long held that § 52-592 is remedial and is to be liberally interpreted . . . Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts." (Citations omitted; internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 243-44, 789 A.2d 1142 (2002).
This court finds that the present action falls within the purview of the savings provisions of § 52-592 (a). In Scagliola I, the O'Naltys timely commenced a cause of action sounding in tort within the three-year statute of limitation set forth in § 52-577. (Scagliola's Exhibit B.) On January 7, 2002, the trial court dismissed that action as to Scagliola based on insufficient service of process. O'Nalty v. Scagliola, supra, CT Page 10880-aj Superior Court, Docket No. CV 98 0489290. Therefore, the trial court did not enter a final judgment on the merits of the case as to Scagliola, only as to Zenith. See id. The O'Naltys had one year from that date of dismissal to commence a new action against Scagliola pursuant to § 52-592 (a). The O'Naltys commenced the present action on May 10, 2002, which is well within one year required under § 52-592 (a). Therefore, the present action is not barred by the statute of limitations set forth in § 52-577 because the O'Naltys timely commenced their original action, which failed to be tried on the merits as to Scagliola, and subsequently commenced the present action against Scagliola within one year after the determination of Scagliola I. See General Statutes § 52-592 (a). Accordingly, the O'Naltys properly commenced this action pursuant to § 52-592 (a).
B.
The Doctrines of Collateral Estoppel and Res Judicata
As previously stated, Scagliola contends that the O'Naltys are barred from bringing the present action under the doctrine of res judicata because the trial court in Scagliola I entered judgment as to the merits of that case. The O'Naltys contend that the merits were not adjudicated as to Scagliola in Scagliola I because their action as to him was dismissed for insufficient service of process. The O'Naltys further argue that Scagliola is precluded under the doctrine of collateral estoppel from contesting the findings determined in Scagliola I.
"Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment . . . Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding . . ."
"An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action." (Internal quotation marks omitted.) Carnemolla v. Walsh, 75 Conn. App. 319, 325-26, 815 A.2d 1251, cert. CT Page 10880-ak denied, 263 Conn. 913, 821 A.2d 768 (2003).
"[C]ollateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them." DeLaurentis v. New Haven, 220 Conn. 225, 239, 597 A.2d 807 (1991). "Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts. Rather, it is, in essence, a shorthand statement for the principle that collateral estoppel should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion." (Internal quotation marks omitted.) Young v. Metropolitan Property Casualty Ins. Co., 60 Conn. App. 107, 114, 758 A.2d 452, cert. denied, 255 Conn. 906, 762 A.2d 912 (2000).
"The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality . . . Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit . . . Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment . . . Collateral estoppel 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." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 58, 808 A.2d 1107 (2002).
In the present case, the O'Naltys' motion for summary judgment is based on the offensive use of collateral estoppel. If the O'Naltys are correct in their argument that Scagliola is bound by the findings in Scagliola I, then "it would be unfair to them [the O'Naltys] to expend [their] resources relitigating [these] issue[s]." Young v. Metropolitan Property Casualty Ins., supra, 60 Conn. App. 112-13. Before this court can determine whether offensive collateral estoppel bars Scagliola from contesting the findings of the trial court in Scagliola I, it must determine whether privity exists between Zenith and Scagliola. "[T]he concept [of privity] exists to ensure that the interests of the party against whom collateral estoppel is being asserted have been adequately represented because of his purported privity with a party at the initial proceeding." (Internal quotation marks omitted.) Id., 114. "A key consideration in determining the existence of privity is the sharing of the same legal right by the parties allegedly in privity." (Internal quotation marks omitted.) Aetna Casualty Surety Co. v. Jones, supra, 220 Conn. 304. "[Privity] now signifies a relationship between one CT Page 10880-al who is a party of record and another who is a nonparty, but is sufficiently close to mandate the application of . . . collateral estoppel." Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 813 n. 12, 695 A.2d 1010 (1997).
In Aetna Casualty Surety Co. v. Jones, 220 Conn. 285, 596 A.2d 414 (1991), our Supreme Court did not distinguish between the use of offensive collateral estoppel by way of the plaintiff or defensive collateral estoppel by way of the defendant. "As long as the party to the original suit has had a full and fair opportunity to litigate the issue and the issue was finally and necessarily decided by the court, the distinction between offensive and defensive collateral estoppel is inconsequential." Id., 303 n. 19.
In Scagliola I, the trial court determined that Zenith was the "alter ego" of Scagliola. O'Nalty v. Scagliola, supra, Superior Court, Docket No. CV 98 0489290. It was further found that the "representations made and actions taken by Mr. Scagliola in his dealings with the O'Naltys were in his capacity as the sole member of and agent for Zenith. Therefore, all of his actions were the actions of Zenith." Id. This court finds that the actions of Zenith were the actions of Scagliola, and, therefore, privity exists based on the status of the relationship between Zenith and Scagliola, namely that Zenith was the alter ego of Scagliola. Furthermore, privity exists because Scagliola, either in his capacity of sole member or agent, enjoys the same legal rights as Zenith.
In the present action, the O'Naltys have set forth the same allegations they pleaded in Scagliola I in order to support their cause of action for fraudulent misrepresentation. (Scagliola's Exhibit B.) The trial court determined that the actions of Scagliola constituted the actions of Zenith and that "Zenith, through the actions of Mr. Scagliola, made a false representation as a statement of fact . . . that the statement was untrue and known to be so by Mr. Scagliola and . . . that the statement was made with the intent of inducing reliance thereon." O'Nalty v. Scagliola, supra, Superior Court, Docket No. CV 98 0489290. Accordingly, the trial court entered judgment in favor of the O'Naltys as to their cause of action for fraudulent misrepresentation against Zenith. (O'Naltys' Exhibit B, p. 1.)
For the above-mentioned reasons, this court finds the O'Naltys' allegations for fraudulent misrepresentation were properly pleaded in Scagliola I and that the trial court, Shortall, J., made a full and fair determination as to those allegations that relate to whether Zenith was liable for fraudulent misrepresentation. In the present action, the O'Naltys have pleaded the same allegations pertaining to Scagliola that were alleged against Zenith in Scagliola I, and Scagliola maintains a privity relationship with Zenith. Because these issues were fully and fairly litigated in Scagliola I, it would be unfair to require the O'Naltys to relitigate the same issues as to Scagliola, who maintains a privity relationship with Zenith. No genuine issues of material fact remain. The O'Naltys are entitled to summary judgment as a matter of law because Scagliola is precluded from contesting the findings made by the trial court, Shortall J., in Scagliola I under the doctrine of collateral estoppel. CT Page 10880-am
III CONCLUSION
Based on the above-mentioned reasons, the O'Naltys' motion for summary judgment is granted and Scagliola's cross motion for summary judgment is denied.
Hale, JTR