Opinion
No. CV 03-0091931
March 3, 2004
MEMORANDUM RE MOTION FOR SUMMARY JUDGMENT #101
Factual Background
The plaintiff, Kathleen Udelsman, was a member of a class action nuisance lawsuit, Marr v. WMX Technologies, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 96 0071542 (November 25, 1996, Pickett, J.), prosecuted by the defendant attorneys, Brower and Organschi, in this court. The class action was settled by stipulated judgment in 1999. The plaintiff claims that she was entitled to approximately $10,000 in settlement proceeds but she never received the money due to the defendants' negligence. The plaintiff was a co-owner of property with her ex-husband, Marc Postiglione, which warranted class membership, and she claims that the defendants failed to keep her informed, which allowed Postiglione to mislead her into believing that there was no settlement or proceeds from the case. In 1999, the plaintiff signed a notarized release/assignment of her rights arising out of ownership of the property to Postiglione and she never filed a proof of claim in the class action. Postiglione filed a proof of claim along with the plaintiff's release and was paid in accordance with the settlement. The plaintiff has commenced the present case against Postiglione (alleging fraud and deception and violations of General Statutes §§ 52-564 and 52-565) and her former class action attorneys (alleging negligence and breach of contract).
Note regarding the plaintiff's breach of contract claim: The Appellate Court concluded that "one may bring against an attorney an action sounding both in negligence and contract . . . [however] one [cannot] bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of the contract." (Citations omitted; internal quotation marks omitted.) Alexandru v. Strong, 81 Conn. App. 68, 79, 837 A.2d 875 (2004). "[W]here the plaintiff alleges that the defendant negligently performed legal services and failed to use due diligence the complaint sounds in negligence, even though he also alleges that he retained him or engaged his services." Id., 79-80. Count two of the plaintiff's complaint, the alleged breach of contract claim, merely restates the allegations set forth in count one, which is a negligence claim. Thus, it is submitted that the plaintiff's breach of contract claim is nothing more than a negligence claim purporting to be based in contract.
The defendant attorneys (defendants) move for summary judgment on the ground that there is no issue of law or fact with respect to their liability. In support of their motion, the defendants argue that summary judgment should be granted for three reasons.
(1) The defendants argue in their supplemental brief that summary judgment should be granted in their favor because the plaintiff failed to comply with Practice Book § 17-45. In Barile v. Lenscrafters, Inc., 74 Conn. App. 283, (2002), the court granted a motion for summary judgment on the ground that the plaintiff failed to timely file opposition papers. However, in Pepe v. New Britain, 203 Conn. 281, 287 (1987), the court waived a plaintiff's noncompliance with § 17-45 when no objection was raised by the defendant. See also Olivas v. Devivo Industries, Inc., Superior Court, judicial district of Danbury, Docket No. CV99 0335908 (July 26, 2002, Holden, J.). Further, in the recent ease of Martinez v. Zovich, Superior Court, judicial district of New Britain, Docket No. CV 03 0519983 (January 7, 2004, Robbinson, J.), the court noted that it had the power to grant summary judgment on procedural grounds but chose to consider the motion on the merits because the defendant had not demonstrated that the plaintiffs' delay was prejudicial. In the present case, the defendants point out that the plaintiff filed her opposition papers late. They also submitted an affidavit from their paralegal stating that they did not receive the opposing documents until January 14, 2004, which was two days after the motion was argued. However, the defendants did not state how or if the plaintiff's untimeliness prejudiced them. Because the defendants have not shown prejudice, the Court finds this basis to be insufficient.
(2) The defendants further argue that summary judgment should be granted because the plaintiff's claims have already been addressed and resolved in the Marr class action. Specifically, the defendants claim that res judicata prohibits the plaintiff from litigating the issue of notice because this court decided in the class action what notice was required for class members.
"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). "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." (Internal quotation marks omitted.) Gaynor v. Payne, 261 Conn. 585, 595-96, 804 A.2d 170 (2002). "Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim . . . 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 necessary to the judgment." (Emphasis in original; internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001). "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.) Alexandru v. Strong, 81 Conn. App. 68, 76, 837 A.2d 875 (2004).
Because the defendants in the present action were not parties to the class action but rather they represented a class of plaintiffs including the plaintiff in this case, and because the issue in the present case is whether the defendants were negligent rather than whether notice was deemed adequate by the court in the class action, res judicata does not prohibit the plaintiff from bringing this action against her prior attorneys. Further, "[i]ssues of negligence are ordinarily not susceptible of summary adjudications but should be resolved by trial in the ordinary manner." Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). The court finds the arguments of the defendants unavailing and denies the motion for summary judgment.
(3) Lastly, the defendants argue that the plaintiff brought suit against them without probable cause and renew their motion pursuant to Connecticut General Statutes § 52-568. In order to establish a vexatious litigation suit based upon a prior civil action, "it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff's favor . . . Probable cause is the knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action . . . Malice may be inferred from lack of probable cause . . . The want of probable cause, however, cannot be inferred from the fact that malice was proven." (Citations omitted; emphasis added; internal quotation marks omitted.) Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978). The court declines to address this issue based on its denial of the motion for summary judgment.
Brunetti, J.