Opinion
No. CV 03 0519602-S
February 3, 2004
MEMORANDUM OF DECISION
Edward Rosenfield brought this breach of contract action against the law firm of Rogin, Nassau, Caplan, Lassman Hirtle (Rogin, Nassau), which formerly represented him. A series of lawsuits between Rosenfield and other defendants preceeded this action. In one of the actions, Rosenfield sued Rogin, Nassau for malpractice and claimed it had not commenced an earlier lawsuit brought by Rosenfield within the statute of limitations. Summary judgment was granted in that action for Rogin, Nassau. Rosenfield then filed the current action against Rogin, Nassau. In this action, Rosenfield conceeds that Rogin, Nassau had brought the prior action within the statute of limitations. He, however, claims that the action was not brought with due diligence and in a timely fashion. This delay, Rosenfield argues, breached an implied contract to bring the action in a timely manner. Rogin, Nassau has moved for summary judgment. Its position is that Rosenfield is trying to transform his previous malpractice claim into a breach of contract claim. Additionally, Rogin, Nassau claims that even if a contract claim were viable, bringing it now would violate the six-year statute of limitations for implied contracts. Finally, Rogin, Nassau argues that the doctrines of collateral estoppel and res judicata bar Rosenfield from relitigating this matter.
Rosenfield was a plaintiff in a foreclosure action against Rose Marie Cymbala. After Rosenfield presented his evidence, this action was dismissed orally from the bench for the plaintiff's failure to present a prima facie case. A written decision was later filed stating the reasons why the motion to dismiss was granted. Rosenfield v. Cymbala, Superior Court, judicial district of Middlesex at Middletown, Docket No. 060180 (Dec. 18, 1992, Higgins, J.), aff'd, 33 Conn. App. 931, 636 A.2d 881 (1994).
Rosenfield then filed a second foreclosure action against Cymbala. Summary judgment was granted for Cymbala because the decision in the first action was found to be res judicata. Rosenfield v. Cymbala, Superior Court, judicial district of Middlesex at Middletown, Docket No. 072816 (Aug. 23, 1995, Aurigemma, J.), aff'd, 43 Conn. App. 83, 681 A.2d 999 (1996).
Rosenfield then hired the law firm of Rogin, Nassau, Caplan, Lassman Hirtle, LLC (Rogin, Nassau) to bring a malpractice action against Levy Droney, the law firm that handled the foreclosure that had been dismissed. Levy Droney moved for summary judgment, arguing that the statute of limitations for malpractice actions had run. Faced with a potential conflict of interest, Rogin, Nassau advised Rosenfield to retain other counsel for the summary judgment motion. Rosenfield retained the firm of Marder and Kallet. The only issue presented on Rosenfield's behalf was whether the date of the oral decision or the written decision was controlling. Summary judgment was granted on the basis that the statute of limitations had run three years from the date of the oral decision. Rosenfield v. Levy Droney, P.C., Superior Court, judicial district of Hartford, Docket No. 556791 (April 16, 1997, Wagner, J.T.R.) ( 19 Conn. L. Rptr. 389). Rosenfield did not appeal this decision.
Rosenfield filed another malpractice action, now against Rogin, Nassau, alleging that they failed to commence the earlier malpractice action against Levy Droney within the limitations period. Rogin, Nassau moved for summary judgment and argued that the statute of limitations, within which to bring an action against Levy Droney, was tolled because of the continuing course of conduct and continuing representation doctrines. Rosenfield argued that the earlier decision, that the statute of limitations had run, should be given collateral estoppel effect to bar Rogin, Nassau from claiming that the statute of limitations had not run.
Judge Peck held that the doctrine of collateral estoppel did not bar Rogin, Nassau from raising the continuing course of conduct and continuing representation doctrines. Rosenfield v. Rogin, Nassau, Caplan, Lassman Hirtle, LLC, Superior Court, judicial district of Hartford, Docket No. 568522 (April 12, 2000, Peck, J., aff'd, 69 Conn. App. 151, 795 A.2d 572 (2002). Judge Peck held that the action against Levy Droney was not, in fact, time barred because the statute of limitations was tolled by the continuing course of conduct and continuous representation doctrines. Summary judgment was granted in favor of Rogin, Nassau. The Appellate Court affirmed, and held that although the continuing course of conduct doctrine was improperly applied, the continuous representation doctrine had tolled the statute of limitations. Rogin, Nassau, therefore, had not committed malpractice. Rosenfield v. Rogin, Nassau, Caplan, Lassman Hirtle, LLC., 69 Conn. App. 151, 795 A.2d 572 (2002).
See footnote 1.
See General Statutes § 52-576.
Rosenfield argues that the six-year contract statute of limitations is tolled by the doctrines of continuous representation and continuing course of conduct. Additionally, he contends that collateral estoppel would not bar this action because the issues are not identical in this breach of contract claim and in the prior malpractice claim. Finally, he argues that to apply the doctrine of collateral estoppel would work an injustice because he would be deprived of a remedy.
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 of 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." Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "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 judgment as a matter of law." Appleton v. Board of Education, supra, 209.
"[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); Bouchard v. Sundberg, 80 Conn. App. 180, 834 A.2d 744 (2003). Here, the materials submitted by the parties do not raise any genuine issue of material fact. Summary judgment is, therefore, appropriate if Rogin, Nassau is entitled to judgment as a matter of law.
"The principles underlying the doctrine of res judicata, or claim preclusion, are well settled. [A] valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties, or those in privity with them, upon the same claim or demand . . . Furthermore, the doctrine of claim preclusion . . . bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action which were actually made or which might have been made . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Zanoni v. Lynch, 79 Conn. App. 325, 338, 830 A.2d 314 (2003). "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.) Rosenfield v. Cymbala, 43 Conn. App. 83, 87, 681 A.2d 999 (1996).
"In determining whether the judgment is on the same claim as an earlier action so as to trigger the operation of the doctrine of res judicata, our Supreme Court has adopted the transactional test which compares the complaint in the second action with the pleadings and the judgment in the earlier action." Id. The transactional test is contained in Restatement (Second), Judgments § 24, which provides that . . . the claim extinguished 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." 1 Restatement (Second) Judgments, Former Adjudication § 24, p. 196 (1982). Section 25 of the Restatement (Second) Judgments provides that, "[t]he rule . . . applies to extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action . . . [t]o present evidence or grounds or theories of the case not presented in the first action, or . . . [t]o seek remedies or forms of relief not demanded in the first action." 1 Restatement (Second) Judgments, supra, § 25, p. 209; See also Labieniec v. Nichols, 18 Conn. App. 117, 118-19, 556 A.2d 635 (1989).
In Labieniec v. Nichols, supra, 18 Conn. App. 117, the court held that the doctrine of res judicata barred a plaintiff from pursuing a second cause of action sounding in contract against the same defendant, a physician. The second action was based on the same set of facts as a previous malpractice action. Because a final judgment had been entered for the defendant in the malpractice action, the plaintiff tried to bring a new action based on breach of contract.
Rosenfield has already brought an action against Rogin, Nassau arising out of its representation of him in a malpractice claim against Levy Droney. In that action, the legal theory was malpractice based on an alleged failure to comply with the statute of limitations. A final judgment was entered in that matter against Rosenfield. In this action, the legal theory is breach of contract based on an alleged failure to bring the action timely. Even though the legal theory of the current action is different from that of the earlier action, both claims arise out of the identical transaction, which was the basis of the earlier malpractice claim. This breach of contract claim could have been made an additional count with the earlier malpractice claim. Here, res judicata bars relitigation of the claim.
Rosenfield argues that if summary judgment is granted he will be without a remedy. The extensive history of previous litigation which this plaintiff initiated prior to this matter, however, presents a clear path of opportunities afforded to him to pursue his claims. This case presents a history of repetitive litigation by Rosenfield, all commenced after failed initial attempts to pursue claims. The doctrine of res judicata bars this action.
Rosenfield had a full opportunity to pursue his foreclosure action against Cymbala. Having failed to present a prima facie case, he appealed the dismissal of that action, filed a second foreclosure action and then appealed the adverse ruling in that second action. Nothing prevented him from presenting sufficient evidence in the first action. Rosenfield then filed a malpractice action against Levy Droney. Only the issue of when the statute of limitations began to run was presented in opposition to a summary judgment motion. Neither the continuing course of conduct nor continuing representation doctrines were presented by Rosenfield. Nothing prevented him from doing so. See Rosenfield v. Levy Droney Superior Court, complex litigation docket at Waterbury, Docket No. 164100 (Oct. 19, 2001, Hodgson, J.). No appeal was taken of this adverse ruling. Rosenfield then filed a malpractice action against Rogin, Nassau. No breach of contract claim was raised although, again, Rosenfield might have done so.
Because this court holds that this action is barred by res judicata, the court need not decide whether Rosenfield has properly pleaded a breach of contract action or if this is merely a disguised malpractice claim. The court also need not decide whether the continuous representation doctrine acts to toll the statute of limitations in contract actions.
Rogin, Nassau's motion for summary judgment is granted.
William P. Murray a judge of the Superior Court