Opinion
CV166065579S
12-04-2017
STATE of Connecticut, DEPARTMENT OF SOCIAL SERVICES v. Justin FREEMAN
UNPUBLISHED OPINION
OPINION
PECK, JTR
The present action arises from a dispute between the plaintiff, the State of Connecticut, Department of Social Services, Bureau of Child Support Enforcement, and the defendant, Justin Freeman, regarding alleged disbursements that Freeman made from the settlement proceeds of a personal injury action. On January 27, 2016, the plaintiff filed a complaint, which is the operative complaint, against the defendant. The plaintiff’s complaint consists of one count that sounds in conversion.
In its complaint, the plaintiff alleges the following facts. The defendant, an attorney, represented Pedro Rivera in a personal injury action against a third-party tortfeasor (personal injury action). At some point, the plaintiff became aware of the personal injury action. Consequently, on approximately May 2, 2012, the plaintiff sent a notice to the defendant pursuant to General Statutes § 52-362d(d). In the May 2, 2012 notice, the plaintiff informed the defendant that Rivera owed child support arrearages and that, if the personal injury action settles, the defendant must forebear from disbursing any settlement proceeds until Rivera’s child support arrearages are satisfied.
General Statutes § 52-362d(d) provides in relevant part: " Whenever an order of the Superior Court ... for support of a minor child ... is issued and such payments have been ordered through the IV-D agency, and the obligor against whom such support order was issued owes overdue support under such order in the amount of five hundred dollars or more, the IV-D agency ... may notify ... (2) any person having or expecting to have custody or control of or authority to distribute any amounts due such obligor under any judgment or settlement ... that such obligor owes overdue support in a IV-D support case. Upon receipt of such notice, such ... person ... shall withhold delivery or distribution of any such ... amounts ... until receipt of further notice from the IV-D agency."
The plaintiff also alleges that it learned that the personal injury action settled and the defendant remitted a " settlement worksheet" (worksheet), to Rivera, dated October 21, 2013. The worksheet has three primary parts. First, the worksheet lists the gross settlement amount: $82,500. Second, the worksheet lists various deductions that were applied to the gross settlement amount. Such deductions included, inter alia, $10,000 paid to " Oasis, " $1,500 paid for " legal tender, " and $1,200 paid to the defendant himself. Lastly, the worksheet sets forth the net settlement amount paid to Rivera, $33,905.02 (the gross settlement amount less the several deductions). The plaintiff further alleges that the deductions that the defendant paid, as well as the net settlement proceeds that he remitted. to Rivera, were unlawful in violation of § 52-362d(d), because the defendant received notice of the plaintiff’s child support lien yet made the deductions and remittance anyway. Thus, in its prayer for relief, the plaintiff claims, inter alia, money damages, interest, and costs.
The worksheet is attached to the plaintiff’s complaint as exhibit A. See Practice Book § 10-29(a).
On August 16, 2016, the defendant filed an amended answer and special defenses. In his answer, the defendant, inter alia, claimed that he lacks sufficient knowledge to either admit or deny the allegation that he received a § 52-362d(d) notice from the plaintiff. Also, the defendant admitted that he paid the deductions listed on the worksheet, but denied that such payments were improper. Similarly, the defendant admitted that he remitted the net settlement amount to Rivera, but denied that this alleged payment was legally improper. In his first and second special defenses, the defendant asserts that the plaintiff’s claim is barred by the doctrines of collateral estoppel and res judicata, respectively. As to this point, the defendant alleges that the facts and/or claims at issue in the present case were previously decided in two prior proceedings: Rivera v. Rivera, Superior Court, judicial district of Hartford, Docket No. FA-09-4042568-S (Rivera matter), and Diaz v. Rivera, Superior Court, judicial district of Hartford, Docket No. FA-196-0620805-S (Diaz matter). On November 15, 2016, the plaintiff filed a reply to the defendant’s special defenses, in which the plaintiff denied the defendant’s allegations and left the defendant to his proof.
On May 16, 2017, the defendant filed a motion for permission to file a motion for summary judgment in accordance with Practice Book § 17-44. The court, Robaina, J., granted the defendant’s motion on May 17, 2017. Similarly, on May 19, 2017, the plaintiff moved for permission to file a summary judgment motion pursuant to § 17-44. On May 23, 2017, the court, Robaina, J., granted the plaintiff’s motion for permission to file a summary judgment motion.
Practice Book § 17-44 provides in relevant part: " In any action ... any party may move for a summary judgment as to any claim or defense as a matter of right at any time if no scheduling order exists and the case has not been assigned for trial. If a scheduling order has been entered by the court, either party may move for summary judgment as to any claim or defense as a matter of right by the time specified in the scheduling order. If no scheduling order exists but the case has been assigned for trial, a party must move for permission of the judicial authority to file a motion for summary judgment ..."
On June 15, 2017, the plaintiff filed a motion for summary judgment (# 127). The summary judgment motion is accompanied by a memorandum of law. In support of its motion for summary judgment, the plaintiff submitted voluminous exhibits, including the affidavit of William Harlow, a support enforcement services supervisor with the state of Connecticut, and various trial court documents that were filed in the Rivera and Diaz cases.
On June 22, 2017, the defendant filed a cross motion for summary judgment (# 130). The cross motion for summary judgment is accompanied by a memorandum of law. In support of his motion for summary judgment, the plaintiff submitted the following exhibits (1) the affidavit of Justin Freeman; (2) excerpts from the certified deposition transcript of Maritza Colon; (3) excerpts from the certified deposition transcript of. Justin Freeman; (4) excerpts from the certified hearing transcript before Family Support Magistrate Harris Lifshitz; (5) a copy of a motion to dismiss that was filed in a disciplinary hearing that involved the defendant and exhibits thereto; and (6) the decision of the Statewide Grievance Committee granting the latter referenced motion to dismiss.
On August 8, 2017, the plaintiff filed an objection to the defendant’s motion for summary judgment. The plaintiff submitted several exhibits in support of its objection. Oral argument ‘was heard at short calendar on August 14, 2017.
DISCUSSION
The procedural standard that governs summary judgment motions is well settled. " 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." (Internal quotation marks omitted.) Kenneson v. Eggert, 176 Conn.App. 296, 302, 170 A.3d 14 (2017). " 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.) McClancy v. Bank of America, N.A., 176 Conn.App. 408, 412, 168 A.3d 658 (2017). " [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ... [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. 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 ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " Once the moving party has met its burden ... the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... or the motion for summary judgment will be granted. This is so because [o]nce [the] [movant’s] burden in establishing his entitlement to summary judgment is met ... the burden shifts to [the nonmovant] to show that a genuine issue of fact exists justifying a trial." (Citation omitted; emphasis omitted; internal quotation marks omitted.) RAB Performance Recoveries, LLC v. James, 151 Conn.App. 360, 366, 94 A.3d 1223, cert. denied, 314 Conn. 917, 100 A.3d 406 (2014).
The plaintiff claims that it is entitled to summary judgment on the defendant’s first special defense, which sounds in collateral estoppel, because no genuine issue of material fact exists and it is entitled to judgment as a matter of law. In support of this claim, the plaintiff argues that is it entitled to summary judgment on the defendant’s special defense of collateral estoppel because the issue in the present case is not identical to the issue that was before the Family Support Magistrate. The plaintiff further argues that the defendant’s testimony before the Family Support Magistrate was not necessary to a determination of the motions for contempt that were filed against Rivera. The plaintiff also argues that the parties in the present case and the parties that were before the Family Support Magistrate are not identical. Moreover, the plaintiff argues that the Family Support Magistrate lacked jurisdiction to determine the issue in the present case, and, therefore, the testimony that the defendant gave in the prior proceeding is not preclusive in the present action. The plaintiff also argues that the issue of whether the defendant received notice of the child support lien was not actually litigated in the prior proceeding before the Family Support Magistrate. The plaintiff further argues that, even if the Family Support Magistrate did consider the issue of whether the defendant received notice of the child support lien, the Family Magistrate did not, and could not, apply the correct legal test for when such a notice is " received" for purposes of § 52-362d(d).
The defendant counters by claiming that he is entitled to summary judgment because there is no genuine issue of material fact that the issue in the present case, that is, whether the plaintiff " perfected" the child support lien stemming from Rivera’s child support arrearages, was decided in his favor on two prior occasions. Specifically, the defendant contends that these issues were decided in the family support proceeding and the grievance proceeding. The defendant also argues that, in both proceedings, the question of whether the plaintiff perfected the child support lien was necessarily determined between litigants who are in privity with parties in the present case.
In the memorandum of law that accompanies his motion for summary judgment, the defendant does not address the issue of res judicata. In light of this fact, the plaintiff does not address the issue of res judicata in its objection to the defendant’s summary judgment motion.
FIRST SPECIAL DEFENSE- COLLATERAL ESTOPPEL
" The fundamental principles underlying the doctrine of collateral estoppel are well established." (Internal quotation marks omitted.) Corcoran v. Dept . of Social Services, 271 Conn. 679, 689, 859 A.2d 533 (2004). " [Collateral estoppel] is that aspect of the doctrine of res judicata which serves to estop the relitigation by parties and their privies of any right, fact or legal matter which is put in issue and has been once determined by a valid and final judgment of a court of competent jurisdiction." (Footnote added; internal quotation marks omitted.) State v. Bonner, 110 Conn.App. 621, 631, 955 A.2d 625 (2008). " The doctrine of collateral estoppel is 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." (Emphasis omitted; internal quotation marks omitted.) Marques v. Allstate Ins. Co., 140 Conn.App. 335, 339, 58 A.3d 393 (2013).
" 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." (Internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991). " 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." (Emphasis omitted; internal quotation marks omitted.) Deutsche Bank AG v. Sebastian Holdings, Inc., 174 Conn.App. 573, 587, 166 A.3d 716 (2017). " 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." (Internal quotation marks omitted.) Girolametti v. Michael Horton Associates, Inc., 173 Conn.App. 630, 649-50, 164 A.3d 731 (2017). " [T]he court must determine what facts were necessarily determined in the first trial, and must then assess whether the [party] is attempting to relitigate those facts in the second proceeding ... Simply put, collateral estoppel has no application in the absence of an identical issue." (Citation omitted; internal quotation marks omitted.) Wiacek Farms, LLC v. Shelton, 132 Conn.App. 163, 169, 30 A.3d 27 (2011).
Applying these principles to the present case, there is no genuine issue of material fact that collateral estoppel does not apply here. First, the testimony that the defendant gave before the Family Support Magistrate has no collateral estoppel effect because the issue in that case was whether Rivera purged himself of contempt, while in the present case, the issue is whether the defendant committed the tort of conversion by disbursing the settlement proceeds in derogation of the plaintiff’s child support lien. Therefore, the issues are not identical. Second, the findings and/or conclusions in the disciplinary proceeding have no collateral estoppel effect because in that proceeding, the burden of proof was governed by the clear and convincing standard; see Statewide Grievance Committee v. Presnick, 18 Conn.App. 316, 322-23, 559 A.2d 220 (1989) (holding that clear and convincing standard is the applicable burden of proof in disciplinary proceedings); whereas here, the burden of proof is governed by the preponderance of the !evidence standard. See Birnie v. Electric Boat Corp., 288 Conn. 392, 406, 953 A.2d 28 (2008) (cautioning that applying collateral estoppel may be inappropriate where the burden of proof is different between the two proceedings). For these reasons, there is no genuine issue of material fact that collateral estoppel does bar the plaintiff’s claim in the present case. The defendant cannot prevail on its claim that he is entitled to summary judgment on his special defense of collateral estoppel. Therefore, the plaintiff is entitled to summary judgment on the first special defense of collateral estoppel.
SECOND SPECIAL DEFENSE- RES JUDICATA
" [T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties] on the same claim." (Internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 86 Conn.App. 42, 44, 859 A.2d 948 (2004). " [T]he essential concept of the modern rule of claim preclusion is that a judgment against [the] plaintiff is preclusive not simply when it is on the merits but when the procedure in the first action afforded [the] plaintiff a fair opportunity to get to the merits ... Stated another way, res judicata is 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 ... [W]here a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 459-60, 998 A.2d 766 (2010). " 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, LLC, 320 Conn. 146, 156-57, 129 A.3d 677 (2016).
As previously noted, the defendant has not opposed the plaintiff’s motion for summary judgment as to res judicata. In any event, there was no adequate opportunity before the Family Support Magistrate for the plaintiff to litigate the issue of whether the defendant disbursed the settlement proceeds in contravention of the plaintiff’s child support lien. Critically, the Family Support Magistrate lacked subject matter jurisdiction to entertain and decide such an issue on the merits. See General Statutes § 46b-231(m) (enumerating the powers and duties of family support magistrates); see, e.g., Milford v. Andresakis, 52 Conn.App. 454, 464, 726 A.2d 1170, cert. denied, 248 Conn. 922, 733 A.2d 845 (1999) (concluding that a negligent misrepresentation claim was not barred by res judicata where claim could not have been brought in prior equitable proceeding that arose under rule 60[b] of the Federal Rules of Civil Procedure). Accordingly, the court finds that the special defense of res judicata is invalid. Therefore, the plaintiff is entitled to summary judgment as to the second special defense.
CONCLUSION
For all the foregoing reasons, the defendant’s motion for summary judgment on the plaintiff’s complaint is hereby denied. The plaintiff’s motion for summary judgment on the first and second special defenses to its complaint is hereby granted.