Opinion
CV176023430S
10-31-2018
Joseph Virzi v. Jeffrey Berger et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Stevens, Barry K., J.
RULING ON MOTION FOR SUMMARY JUDGMENT
STEVENS, J.
Pending before the court is the motion for summary judgment filed by the defendants Constance Berger and Harold Berger. The plaintiff, Joseph Virzi, has objected to the motion. The plaintiff filed the present complaint asserting claims of theft, conversion and unjust enrichment against the defendant, Jeffrey Berger, based on this defendant’s alleged theft of the plaintiff’s property. The plaintiff also sued the moving defendants, Constance Berger and Harold Berger, under the parental liability statute. General Statutes § 52-272.
In a prior criminal proceeding, the defendant Jeffrey Berger pleaded guilty to larceny in the fifth degree in violation of General Statutes § 53a-125a, and as part of the imposed sentence, he was ordered to pay $292 in restitution. See generally, General Statutes § 53a-28(c). Based on the order of restitution in the criminal action, the defendants Constance Berger and Harold Berger move for summary judgment contending that the plaintiff’s action should be precluded under the doctrine of collateral estoppel.
The law regarding the court’s consideration of a motion for summary judgment is well-established and will not be reiterated here. A motion for summary judgment should be granted when the movants demonstrate that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law. Practice Book § 17-49; Bozelko v. Papastavros, 323 Conn. 275, 282 (2016). The defendants’ motion for summary judgment is denied because they have failed to demonstrate that they are entitled to judgment as a matter of law.
"[C]ollateral estoppel precludes a party from re-litigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim ... to invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding ... Both issue and claim preclusion "express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.
"[Collateral estoppel] requires an identity of issues between the prior and subsequent proceedings and operates only against the same parties or those in privity with them. While it is commonly recognized that privity is difficult to define, the concept 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. A key consideration in determining the existence of privity is the sharing of the same legal right by the parties allegedly in privity ... This is 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.
"Privity is a difficult concept to define precisely. There is no prevailing definition of privity to be followed automatically in every case. It is not a matter of form or rigid labels; rather it is a matter of substance. In determining whether privity exists, we employ an analysis that focuses on the functional relationships of the parties. 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." (Citations omitted; internal quotation marks omitted.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 812-14 (1997).
In a criminal prosecution, the State of Connecticut, the entity on whose behalf the criminal action is brought, does not share the same legal interests or rights as the victim of the criminal defendant’s conduct for the purposes of the collateral estoppel doctrine. Stated differently, as a matter of law, in a criminal proceeding, there is no privity between the State of Connecticut and the person who is the victim of the criminal defendant’s conduct. The arguments to the contrary asserted by the defendants in the present action are meritless and are rejected.
The State’s Attorney’s legal obligation in a criminal action is solely to represent his or her client- the State of Connecticut- and the prosecutor has no attorney-client relationship with the victim. The State’s Attorney certainly should keep the victim informed and should consider the victim’s position regarding the prosecution of the case, but the prosecutor has sole discretion as to what charges will be filed and even as to whether any charges will be filed at all. In Connecticut, except as provided under the Victim’s Rights Amendment (Article First, § 8 (as amended by Articles 17 and 29 of the Amendments)), the victim does not even have the right to participate or be heard in the criminal prosecution. See generally, State v. Damato-Kushel, 327 Conn. 173 (2017) (victim has no right to attend pretrial disposition conferences in a criminal action.).
Therefore, the defendants’ motion for summary judgment is denied and the plaintiff’s objection to the motion is sustained. During oral argument, the defendant, Jeffrey Berger, asserted an oral motion joining the motion for summary judgment filed by the other defendants. This court does not recognize or consider "oral" motions for summary judgment under the rules of practice, and therefore, this oral motion is denied for the reasons just articulated and rejected as being procedurally improvident.
So ordered.