Opinion
No. X01 CV04 4006044S
February 15, 2008
I. BACKSTORY
The relevant backstory facts are set out in Terracino v. Fairway Asset Management, Inc., 75 Conn.App. 63, 65-68, 815 A.2d 157, cert. denied, 263 Conn. 920, 822 A.2d 245 (2003), as follows. "On July 19, 1991, Mutual [Communications Associates, Inc. (Mutual)] entered into a loan agreement with Brookfield Bank (Brookfield) to borrow $270,000. Mutual, through two of its corporate officers, [Richard T.] DeMarsico and Jerome Terracino, signed a promissory note for the loan amount. Mutual secured the debt by a mortgage on one of its properties. DeMarsico, Terracino and [Robert] Rossman, another corporate officer, signed personal guarantees as well. Terracino and Rossman signed an additional guarantee as principals and officers of [Guardian Systems, Inc. (Guardian)] Guardian, an alarm company in which they were the only shareholders.
"On May 8, 1992, the Federal Deposit Insurance Corporation (FDIC) took possession of Brookfield's assets, including the promissory note, mortgage and guarantees. At about the same time, Mutual defaulted on the loan. On or about November 30, 1994, the FDIC commenced a foreclosure action against Mutual and the other defendants. A judgment of foreclosure by sale was rendered on December 16, 1996.
"Thereafter, the judgment was opened and a judgment of strict foreclosure was rendered with law days commencing March 25, 1997. Prior to the judgment of strict foreclosure, JLM Services Corporation (JLM) succeeded the FDIC as plaintiff, and title vested in JLM when Mutual failed to redeem its equity within the set law days. JLM filed a motion for a deficiency judgment on April 1, 1997.
"While JLM's motion [for deficiency] was pending, relations between guarantors Terracino and [Robert] Rossman deteriorated, as the two became embroiled in various business disputes. Also, during that time, [Robert] Rossman allegedly asked his friend and attorney, Andrew Buzzi, Jr., to attempt to purchase the note, guarantees and deficiency claim from JLM on his behalf. JLM eventually sold the note, guarantees and deficiency claim to `Andrew J. Buzzi, Jr., Trustee' for $30,000. Buzzi, in turn, assigned the note, guarantees and deficiency claim to Consolidated Asset Management, LLC (Consolidated), a limited liability company that he had formed with [Robert] Rossman's wife, Catherine Rossman. Thereafter, Consolidated assigned the note, guarantees and deficiency claim to Fairway Asset Management, Inc. (Fairway), [which became] the substituted plaintiff and judgment creditor . . .
"[Terracino and Guardian] filed three special defenses, a cross complaint and a counterclaim in response to the motion for a deficiency judgment. The special defenses, as amended, alleged facts that occurred subsequent to the judgment of strict foreclosure. [Terracino and Guardian] claimed that [Robert] Rossman breached the fiduciary duty that he owed them because of his role in assigning the note to Consolidated . . . The counterclaim and cross complaint . . . requested a judgment that Fairway and its predecessors could enforce the note only to claim a proportionate contribution toward funds actually paid on behalf of [Robert] Rossman for the note, or a judgment declaring the note null and void . . . At trial, Buzzi testified that he did not purchase the note on behalf of [Robert] Rossman. He testified, instead, that he had purchased the note on behalf of Consolidated.
"The court [DiPentima, J.] granted the motion for a deficiency judgment. It rejected the third special defense and concluded that there was insufficient evidence to find that either Buzzi or Catherine Rossman acted as [Robert] Rossman's agent [in purchasing the note from JLM], and, therefore, there was no need to address the defendants' other claims premised on a theory of agency. The court also concluded that the defendants had not met their burden of proof on the counterclaim and cross claim. On or about January 28, 2000, the court rendered judgment for the substitute plaintiff, Fairway, in the amount of $324,631.08, plus attorneys fees. Thereafter, Terracino and Guardian appealed to [the Appellate Court] from that judgment. [The Appellate Court], with Chief Judge William J. Lavery dissenting, affirmed the judgment of the trial court.
"While the appeal in Federal Deposit Ins. Corp. [ v. Mutual Communications Associates, Inc., 66 Conn.App. 397, 784 A.2d 970 (2001), cert. dismissed, 262 Conn. 358, 814 A.2d 377 (2003),] was pending, the plaintiffs [in Terracino v. Fairway Asset Management, Inc., supra, 75 Conn.App. 63], Terracino and Guardian, filed [a] petition for a new trial on the ground that they had discovered new evidence that likely would have produced a different result had it been presented to the court during the trial. That new evidence consisted of three pieces of correspondence, which, some four months after judgment had entered in the original action, counsel for [Terracino and Guardian] received from the law firm that had represented JLM in conjunction with its sale of the note, guarantees and deficiency claim to Buzzi. In their petition, [Terracino and Guardian] claimed that the new evidence demonstrated that JLM had accepted [Robert] Rossman's offer to purchase the note and, therefore, the defenses that [Terracino and Guardian] raised in the original trial were applicable. They also claimed that Buzzi, [Robert] Rossman and [Robert] Rossman's wife, Catherine Rossman, prevented them from discovering that correspondence before or during the trial, and that the correspondence demonstrated that Buzzi and the Rossmans testified falsely at trial that Buzzi had not purchased the note, guarantees and deficiency claim from JLM on behalf of [Robert] Rossman. Finally, [Terracino and Guardian] claimed that the testimony of Buzzi and the Rossmans was intended to mislead the court and to prevent the plaintiffs from fairly presenting their defenses to Fairway's claims.
"In a memorandum of decision filed March 8, 2001, the court [DiPentima, J.] denied the [petition of Terracino and Guardian] for a new trial. It concluded that although the evidence presented by [Terracino and Guardian] had, in fact, been newly discovered and would be material to the issue of whether Buzzi had purchased the note on behalf of Rossman, [Terracino and Guardian] failed to demonstrate that they had exercised due diligence in their efforts to discover that evidence prior to trial. The court further concluded that [Terracino and Guardian] also failed to establish that had the newly discovered evidence been produced at the trial, it likely would have produced a different result." (Citations omitted; internal quotation marks omitted.) Terracino v. Fairway Asset Management, Inc., supra, 75 Conn.App. 65-68.
Terracino and Guardian, on appeal in Terracino v. Fairway Asset Management, Inc. supra, 75 Conn.App. 69, argued that "the [trial] court improperly concluded that they had failed to exercise due diligence in their efforts to discover the new evidence prior to the 1999 trial." Terracino and Guardian also argued on appeal that "the [trial] court improperly determined that [the counsel of Terracino and Guardian] failed to exercise due diligence in conducting pretrial discovery, particularly in failing to discover the three pieces of correspondence relating to JLM's sale of the note, guarantees and deficiency claim to Buzzi." Id. The Appellate Court, in affirming the Superior Court's judgment, concluded that the trial court held the counsel of Terracino and Guardian to the correct legal standard with regard to due diligence. Id., 75. The Appellate Court also determined that the trial court could have reasonably found that Terracino and Guardian were not entitled to a new trial because they did not meet their burden of establishing that prior to trial, they exercised due diligence in order to discover the pertinent evidence. Id., 79-80.
II. JOURNEY OF THE PLEADINGS
On January 23, 2006, the plaintiffs in the instant case, Terracino and Guardian, filed a second revised complaint, which is the operative complaint, against the defendants, Robert Rossman, Catherine Rossman and Buzzi. Count one, which is set forth by both plaintiffs, sounds in civil fraud against all of the defendants; count two, which is set forth by both plaintiffs, sounds in civil conspiracy to commit fraud against all of the defendants; count three, which is set forth by both plaintiffs, sounds in common-law indemnification against all of the defendants; and count four, which is set forth by Terracino only, sounds in emotional distress against all of the defendants. On June 20, 2007, Robert Rossman and Catherine Rossman filed an answer and special defenses. Their first special defense, which pertains to all counts of the operative complaint, alleges res judicata; their second special defense, which pertains to all counts of the operative complaint, alleges collateral estoppel; and the third special defense, which pertains to counts one, two, and four of the operative complaint, alleges that the aforementioned counts are barred by the statute of limitations applicable to torts as set forth in General Statutes § 52-577.
The heading of this special defenses states that it applies to counts one, two, and three.
On June 20, 2007, Buzzi filed a motion for summary judgment on all claims against him accompanied by a memorandum of law in support thereof. Buzzi's grounds for summary judgment are that the fraud and conspiracy claims are barred by res judicata and collateral estoppel. An additional ground raised by Buzzi as to the conspiracy claim is that he cannot be liable for that claim as "an agent cannot be liable for conspiring with his or her principal." Buzzi's ground for moving for summary judgment as to the indemnification claim is that "the plaintiffs are not claiming to be passively liable tortfeasors responsible for causing harm to a third party." Buzzi's ground for moving for summary judgment as to the emotional distress claim is that he "is not liable for the predicate acts upon which that liability is based" and "an attorney cannot be held liable for the emotional distress suffered by a client's opponent." The plaintiffs filed a memorandum in opposition to the motion for summary judgment on July 31, 2007, and Buzzi filed a reply brief on August 30, 2007.
On June 20, 2007, Robert Rossman and Catherine Rossman filed a motion for summary judgment accompanied by a memorandum of law in support thereof. One ground for the Rossmans' motion for summary judgment is that res judicata and/or collateral estoppel bar all counts of the complaint. A second ground for the Rossmans' motion for summary judgment is that all four counts "are essentially civil causes of action based on alleged perjury and prohibited as a cause of action under Connecticut law." An additional ground for the Rossmans' motion for summary judgment is that the three-year statute of limitations set out in § 52-577 bars the first, second, and fourth counts of the complaint. On July 31, 2007, the plaintiffs filed a memorandum in opposition to the Rossmans' motion for summary judgment, and Robert Rossman and Catherine Rossman filed a reply brief on August 31, 2007. Oral argument was heard on both motions for summary judgment on November 5, 2007.
III. DISCUSSION A. Summary Judgment Standard
"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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts . . ." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "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 [or collateral estoppel]." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993).
B. Res Judicata/Collateral Estoppel
"Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum . . ." (Internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 600, 922 A.2d 1073 (2007). "[C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits . . ." (Internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 554, 848 A.2d 352 (2004). "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 . . . 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 . . ." (Citations omitted; internal quotation marks omitted.) Powell v. Infinity Ins. Co., supra, 600-01.
"Res judicata, or claim preclusion, is [however] distinguishable from collateral estoppel, or issue preclusion. Under the doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent action . . . between the same parties or those in privity with them, upon the same claim . . . In contrast, collateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding . . .
"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.) Rocco v. Garrison, supra, 268 Conn. 554-55.
The plaintiffs argue that as the claims in this action against Robert Rossman and Catherine Rossman have not been litigated against Robert Rossman and Catherine Rossman in a prior action, the claims against them in this action are barred by neither res judicata nor collateral estoppel.
With regard to Buzzi, the plaintiffs merely assert that the claims against Buzzi in this action have never been litigated against him and are therefore not barred by res judicata.
The plaintiffs assert that none of the prior actions with regard to the acquisition and enforcement of the promissory note have been previously asserted against Catherine Rossman and the only action asserted against Robert Rossman was a cross claim in the original deficiency action.
In their reply brief, Robert Rossman and Catherine Rossman contend that the plaintiffs are seeking to invoke the principle of "mutuality" as it pertains to collateral estoppel and cite to Gionfriddo v. Gartenhaus Cafe, 15 Conn.App. 392, 546 A.2d 284 (1988), aff'd on other grounds, 211 Conn. 67, 557 A.2d 540 (1989), and Aetna Casualty Surety Co. v. Billings, 220 Conn. 285, 596 A.2d 414 (1991), in support of their position that Connecticut has declined to adopt mutuality as a requirement of collateral estoppel.
Buzzi also cites to Aetna Casualty Surety Co. in support of his assertion that "[i]t does not matter that Andrew Buzzi was not a party in the case when the court heard and rejected the plaintiffs' claims because mutuality of parties is not required for collateral estoppel."
In Aetna Casualty Surety Co., Russell F. Manfredi (Manfredi) killed his wife, the decedent, Catherine Manfredi. Id., 286-87. Following a jury trial, Manfredi was convicted of first degree manslaughter for killing the decedent in violation of General Statutes § 53a-55(a)(2). Aetna Casualty Surety Co. v. Billings, supra, 220 Conn. 286-88. For the jury to have found Manfredi guilty of first degree manslaughter, it had to have found that the state proved beyond a reasonable doubt that Manfredi had the intent to cause the decedent's death. Id., 288.
Following the decedent's death, Margaret Billings Jones, the named defendant in Aetna Casualty Surety Co., was appointed administratrix of the decedent's estate. Id., 286, 288. As administratrix, Jones brought a wrongful death action against Manfredi in the Superior Court. Id., 288. Aetna Casualty and Surety Company (Aetna), the plaintiff in Aetna Casualty Surety Co., moved to intervene in that action, but that motion was denied. Id., 286, 288. A default judgment was entered against Manfredi and he was subsequently ordered to pay $450,000 in damages to the decedent's estate. Id., 288.
At the time of the decedent's death, Manfredi was the named insured on two insurance policies issued by the plaintiff: a homeowner's insurance policy and a personal excess indemnity insurance policy. Id. While both of these policies provided Manfredi with coverage for bodily injury claims, both contained language that limited coverage to injuries that were not caused by the insured intentionally. Id., 288-89. Due to its potential liability for Manfredi's fatal injuries to the decedent, Aetna filed a declaratory action in the Superior Court. Id., 289. In the complaint in the declaratory judgment action, Aetna alleged that the insurance policies did not cover the decedent's injuries because Manfredi had the intent to injure her. Id.
Aetna moved for summary judgment on the ground that the jury's finding in the criminal trial that Manfredi intentionally caused the decedent's death collaterally estopped both Manfredi and Jones from litigating the issue of Manfredi's intent again. Id. The trial court denied the motion for summary judgment. Id. On the same date that Aetna filed its motion for summary judgment, a default judgment was entered against Manfredi in the declaratory judgment suit. Id.
On appeal to the Connecticut Supreme Court, the plaintiff argued that its summary judgment motion should have been granted; id., 291; because, inter alia, "there is no issue of material fact with respect to Manfredi's intent to injure his wife because that issue was conclusively determined by his criminal jury and principles of collateral estoppel bar him from relitigating that issue; and . . . because Jones is in privity with Manfredi, collateral estoppel bars her from relitigating the issue of [Manfredi's] intent." Id., 292.
Our Supreme Court stated that "[t]here is no question that a determination of Manfredi's intent was necessary to the judgment of the criminal court and that the jury verdict represents a decision on the issue of intent." Id., 297. Our Supreme Court further stated that in order for collateral estoppel to be applied, the meaning of the word "intent" as utilized in the insurance policy must be included in the definition of intent that the jury applied in Manfredi's criminal trial. Id., 298. Our Supreme Court concluded that if Manfredi acted with the intent that § 53a-55(a)(2) required, then it would follow that he also acted with the intent set out by the insurance policies. Aetna Casualty Surety Co. v. Billings, supra, 220 Conn. 298.
Our Supreme Court then turned to the issue of mutuality of parties. Id., 299. While Aetna argued that "the mutuality of parties rule should not prevent an insurer from collaterally estopping an insured defendant from relitigating an issue that was decided at a prior trial"; id., 299-300; Jones argued that "one who was not a party to the original proceeding may not collaterally estop parties who were." Id., 300.
Our Supreme Court stated with regard to mutuality: "Historically, the mutuality of parties rule meant that parties who were not actually adverse to one another in a prior proceeding could not assert collateral estoppel against one another in a subsequent action. For a time, the mutuality of parties rule was commonly accepted. See annot., 18 A.L.R.2d 1287. The United States Supreme Court once held that the rule of mutuality was binding in disputes arising under federal common law. Bigelow v. Old Dominion Copper Co., 225 U.S. 111, 127, 32 S.Ct. 641, 56 L.Ed. 1009 (1912). In the first Restatement of Judgments, the American Law Institute, also, accepted the doctrine of mutuality. See Restatement, Judgments § 82. In accord with these authorities, this court, too, accepted the general proposition that mutuality of parties was a prerequisite to the successful invocation of collateral estoppel. CT Page 2665 Brockett v. Jensen, 154 Conn. 328, 338, 225 A.2d 190 (1966).
"While once commonly accepted, the mutuality doctrine has now widely been abandoned. As Judge Traynor wrote in his landmark decision on this issue, `[n]o satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend.' Bernhard v. Bank of America, 19 Cal.2d 807, 812, 122 P.2d 892 (1942). Similarly, since Bigelow v. Old Dominion Copper Co., supra, the United States Supreme Court has unequivocally rejected the mutuality rule for purposes of the federal common law. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326-33, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). Further reflecting this trend, the American Law Institute's second Restatement of Judgments has also eliminated the requirement of mutuality. 2 Restatement (Second), Judgments § 85." Aetna Casualty Surety Co. v. Billings, supra, 220 Conn. 300-01.
Our Supreme Court in Aetna Casualty Surety Co. went on to state that the Connecticut Appellate Court did abandon the mutuality rule in both Griffin v. Parker, 22 Conn.App. 610, 579 A.2d 532 (1990), rev'd on other grounds, 219 Conn. 363, 593 A.2d 124 (1991), and in Gionfriddo. Aetna Casualty Surety Co. v. Billings, supra, 220 Conn. 301. Our Supreme Court also stated that many other jurisdictions have eliminated the mutuality requirement. Id.
Our Supreme Court in Aetna Casualty Surety Co. also opted to abandon the mutuality requirement, stating: "We agree with the Appellate Court and join those jurisdictions that have concluded that the mutuality of parties rule is unsound. To allow a party who has fully and fairly litigated an issue at a prior trial to avoid the force of a ruling against him simply because he later finds himself faced by a different opponent is inappropriate and unnecessary. First, the mutuality of parties rule systematically diminishes the stability of judgments. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra, 328-29. The rule allows a single party to present antithetic claims on identical issues in separate actions and to obtain favorable decisions in both solely because his opponent has changed. Additionally, increasingly important notions of judicial economy are served by the abandonment of the doctrine of mutuality. Bruszewski v. United States, 181 F.2d 419, 421 (3d Cir.), cert. denied, 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950). In light of the scarcity of judicial time and resources, the repeated litigation of issues that have already been conclusively resolved by a court carries a considerable price tag in both money and time. Finally, we perceive no sound reason, and Jones has suggested none, to adhere to the doctrine of mutuality." Aetna Casualty Surety Co. v. Billings, supra, 220 Conn. 302.
The Aetna Casualty Surety Co. court then addressed whether, for collateral estoppel purposes, Jones was in privity with Manfredi as the court stated that "[c]ollateral estoppel may be invoked against a party to a prior adverse proceeding or against those in privity with that party." Id., 303. The court concluded that Jones and Manfredi shared a legal interest and were in privity. Id., 306.
The Aetna Casualty Surety Co. court then turned to whether there was a full and fair opportunity to litigate, stating that "[w]henever collateral estoppel is asserted, but especially in those cases where there is a lack of mutuality or the doctrine of privity is raised, the court must make certain that there was a full and fair opportunity to litigate. The requirement of full and fair litigation ensures fairness, which is a `crowning consideration' in collateral estoppel cases." Id. The Supreme Court concluded that Manfredi's intent was fully litigated in the criminal trial. Id., 306-07.
In the present case, in order to determine whether collateral estoppel acts as a bar to any counts of the operative complaint, this court must determine whether the plaintiffs are attempting to relitigate an issue that was actually litigated in a prior action and whether a determination of that issue was necessary for the judgment in the prior action. See Powell v. Infinity Ins. Co., supra, 282 Conn. 600-01. In the initial foreclosure action, Federal Deposit Ins. Corp. v. Mutual Communications Associates, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 95 0067158, in response to the motion for deficiency filed by JLM, Terracino and Guardian alleged in a special defense "that enforcement of the note is inequitable because [Robert] Rossman breached his fiduciary duty to these defendants by his role in the assignment of the note to a limited liability company owned by his wife and his attorney." Federal Deposit Ins. Corp. v. Mutual Communications Associates, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 95 0067158 (October 20, 1999, DiPentima, J.). Terricano and Guardian also filed a counterclaim and cross complaint, which were based on the same facts upon which the special defenses were based. Terracino and Guardian were seeking a judgment that the plaintiff and its predecessors could not enforce the note "except to claim equitable proportionate contribution toward funds actually paid on behalf of [Robert] Rossman for the note or a judgment declaring the note null and void." Id.
At the time that the Superior Court ruled on the motion for deficiency, Fairway was the substitute plaintiff.
In Federal Deposit Ins. Corp. v. Mutual Communications Associates, Inc., supra, Superior Court, Docket No. CV 95 0067158, following testimony and the submission of memoranda of law, the court found that "[Robert] Rossman never owned the note. There was no evidence of an agreement with Fairway Asset not to pursue judgment against [Robert] Rossman." The court found that that "[t]he thrust of the defense here [was] that when [Robert] Rossman's wife and attorney formed a limited liability corporation to purchase the note and deficiency, they were acting on [Robert] Rossman's behalf. With this premise, [Terracino and Guardian] argue[d] that [Robert] Rossman's actions constitute[d] a breach of fiduciary duty owed to these defendants that [was] now attributable to the present plaintiff who [was] not a holder in due course." Id. The Superior Court found that there was insufficient evidence to find that either Buzzi or Catherine Rossman was acting as Robert Rossman's agent. The court stated: "Because the Court concludes that neither Rossman nor his agents purchased the note, guarantee and debt, it need not address the defendant's arguments premised on the opposite conclusion." Id. The Appellate Court, in affirming the trial court's judgment; Federal Deposit Ins. Corp. v. Mutual Communications Associates, Inc., supra, 66 Conn.App. 399; found that the Superior Court's "findings of fact were not clearly erroneous." Id., 403.
This court finds that the issue of whether Buzzi or Catherine Rossman was acting as Robert Rossman's agent was litigated in the previous foreclosure action. The finding by the Superior Court in the foreclosure action with regard to agency was necessary to its findings with regard to the motion for deficiency, the counterclaim and cross claims.
In the present case, the plaintiffs' allegations in counts one and two are premised on the allegation that Buzzi was acting as Robert Rossman's agent when he purchased the note from JLM, an issue that was previously litigated in the foreclosure action. As the Supreme Court in Aetna Casualty Surety Co. v. Jones, supra, 220 Conn. 299-302, abandoned the mutuality requirement as it pertains to collateral estoppel, the fact that neither Buzzi nor Catherine Rossman was a party to the foreclosure action does not preclude this court from holding that collateral estoppel bars the plaintiffs in the present case from relitigating the issue of agency. As "[c]ollateral estoppel may be invoked against a party to a prior adverse proceeding"; id., 303; this court is granting both Buzzi's motion for summary judgment and the Rossmans' motion for summary judgment as it pertains to counts one and two of the operative complaint.
C. Indemnification CT Page 2668
Count three of the operative complaint sounds in common-law indemnification and is alleged against Buzzi, Robert Rossman and Catherine Rossman. As Robert Rossman was a co-guarantor on the note, there is an issue of material fact as to his liability to the plaintiffs who were also co-guarantors on the note, with regard to the deficiency judgment. Therefore, the motions for summary judgment as to count three are granted as to Buzzi and Catherine Rossman and denied as to Robert Rossman.
D. Emotional Distress
Count four of the operative complaint sounds in emotional distress as to Terracino only. In his memorandum in support of his motion for summary judgment, Buzzi argues that as he is not liable for the predicate acts and theories upon which Terracino's emotional distress claim is based, the emotional distress claim is barred. Buzzi cites to Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 619-20, 783 A.2d 462 (2001), in support of his argument.
It is unclear as to whether Terracino is alleging intentional infliction of emotional distress or negligent infliction of emotional distress.
Given that Terracino's allegation of emotional distress is based on the underlying allegation that Buzzi was acting as Robert Rossman's agent when Buzzi purchased the note as trustee from JLM, and given the fact that this court already determined that the doctrine of collateral estoppel bars relitigation of that issue as it was previously determined by the Superior Court that Buzzi was not acting as Robert Rossman's agent at the time he purchased the note from JLM as trustee, Terracino's allegation of emotional distress cannot withstand a motion for summary judgment. See Gomes v. Commercial Union Ins. Co., supra, 258 Conn. 619-20. Therefore, this court grants both Buzzi's motion for summary judgment as to count four and the Rossmans' motion for summary judgment as to count four.
IV. Conclusion
The motions for summary judgment as to counts one, two and four of the operative complaint are granted as to all of the defendants. Buzzi's motion for summary judgment as to count three is granted. The Rossmans' motion for summary judgment as to count three is granted as to Catherine Rossman and denied as to Robert Rossman.