Deutsche Bank AG v. Sebastian Holdings, Inc. , 174 Conn. App. 573 ( 2017 )

 DEUTSCHE BANK AG v. SEBASTIAN HOLDINGS,
INC., ET AL.
(AC 38515)
(AC 38516)
Alvord, Bentivegna and Pellegrino, Js.
Syllabus
The plaintiff bank sought to pierce the corporate veil of the defendant
corporation, S Co., and to enforce an English court’s judgment against
the individual defendant, V, the sole shareholder and director of S Co.
The plaintiff had commenced an action in England against S Co., seeking
damages for moneys owed to it in connection with various trading losses
incurred by S Co. in relation to accounts that it had opened and operated
through the plaintiff. In response, S Co. filed a counterclaim, alleging,
inter alia, that the plaintiff had breached certain contractual duties that
it had owed to S Co., which resulted in the depletion of funds that S
Co. could have used to mitigate its losses. The English court denied S
Co.’s counterclaim, finding that the plaintiff had not breached its duties
to S Co. and that V had control over S Co. such that any alleged breach
of duty should not have interfered with V’s ability to transfer funds to
or from S Co. The English court rendered judgment for the plaintiff,
awarding it damages plus interest. Thereafter, the plaintiff filed a non-
party costs application with the English court, seeking to hold V person-
ally liable for certain of the plaintiff’s court costs in its action against
S Co. The English court granted the costs application, concluding that
V was liable for the costs incurred by the plaintiff due to his extensive
involvement in the action against S Co. In response to S Co.’s failure
to make payments in accordance with the judgment, the plaintiff com-
menced the present action. Thereafter, the defendants filed a motion
for summary judgment, claiming that the doctrine of res judicata barred
the plaintiff’s corporate veil piercing claim because it should have been
raised in the action in the English court. The plaintiff filed a separate
motion for summary judgment, arguing that all questions of material
fact with respect to its corporate veil piercing claim previously had been
decided by the English court and that V was collaterally estopped from
denying that he was the alter ego of S Co. and personally liable for the
judgment in the English action. The trial court denied the parties’
motions, concluding that the plaintiff’s corporate veil piercing claim was
not barred by res judicata because that claim was sufficiently different in
nature from the breach of contract claims in the English action, and
that V was not collaterally estopped from denying liability for S Co.’s
debt because the issue was not actually or necessarily decided in the
English action. From the trial court’s judgment, the parties filed separate
appeals with this court. Held:
1. The defendants could not prevail on their claim that the trial court improp-
erly denied their motion for summary judgment because the plaintiff’s
corporate veil piercing claim arose out of the same series of transactions
as the English action and should have been raised in the English action,
and, therefore, was barred by the doctrine of res judicata: the plaintiff’s
corporate veil piercing claim was not barred by the doctrine of res
judicata, the claims litigated in the English action and the claims alleged
in the present action having been distinct, as the plaintiff in the present
action was not seeking to relitigate a claim of contractual liability that
previously had been decided in the English action but, rather, was
seeking to enforce the unsatisfied English judgment against V under a
corporate veil piercing theory.
2. There was no merit to the plaintiff’s claim that the trial court improperly
denied its motion for summary judgment on the ground that the issue
of whether V was the alter ego of S Co. previously had been decided
by the English court and, thus, the doctrine of collateral estoppel pre-
cluded the defendants from relitigating that issue: the facts relevant to
the issues in the English action and those in the present action were
not identical for purposes of issue preclusion, and the issues pertaining
to V’s control of S Co., as found by the English court, were not essential
to the English action because the English court’s finding that the plaintiff
did not breach any duties it owed to S Co. was essential only to the
English court’s resolution of S Co.’s counterclaim; moreover, although
the English court made factual findings relating to V’s dominion and
control of S Co. when it awarded costs against V, the sole purpose of
the costs judgment was to determine whether V, as a nonparty, could
be held liable for costs and attorney’s fees incurred during the litigation
of the English action, and the costs proceeding was a summary process
proceeding that did not afford the parties basic procedural safeguards,
including the presentation and cross-examination of witnesses, and the
English court explicitly noted that the issues in determining a nonparty
costs order were not the same as a corporate veil piercing claim.
Argued February 2—officially released July 18, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Complex Litigation Docket,
Genuario, J.)
Procedural History
Action to pierce the corporate veil of the named
defendant and to hold the defendant Alexander Vik
liable for an unsatisfied foreign judgment, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, Complex Litigation Docket,
where the court, Genuario, J., denied the defendants’
motion to dismiss; thereafter, the court denied the
defendants’ motion to strike; subsequently, the court
denied the plaintiff’s motion for summary judgment and
denied the defendants’ motion for summary judgment,
and the plaintiff and the defendants filed separate
appeals in this court; thereafter, this court granted in
part the defendants’ motion to dismiss the plaintiff’s
appeal. Affirmed.
Richard M. Zaroff, with whom were Thomas P.
O’Connor, Wyatt R. Jansen, and, on the brief, Charles
W. Pieterse and Ira S. Zaroff, for the appellants in AC
38515 and appellees in AC 38516 (defendants).
David G. Januszewski, with whom were Thomas D.
Goldberg, and, on the brief, Bryan J. Orticelli, Sheila
C. Ramesh, and Erin R. McAlister, for the appellee in
AC 38515 and appellant in AC 38516 (plaintiff).
Opinion
PELLEGRINO, J. These appeals arise from an action
to recover an approximately $243 million judgment
(English judgment) rendered by the Queen’s Bench
Division of the High Court of Justice of England and
Wales (English court) in an action captioned Deutsche
Bank AG v. Sebastian Holdings, Inc. (English action)
in which the trial court rendered judgment in favor of
the plaintiff, Deutsche Bank AG, against the corporate
defendant, Sebastian Holdings, Inc. (Sebastian). In the
present action, the plaintiff sought to pierce Sebastian’s
corporate veil and to enforce the English judgment
against the individual defendant, Alexander Vik. The
defendants and the plaintiff moved for summary judg-
ment based on the doctrines of res judicata and collat-
eral estoppel, respectively. On appeal, the parties claim
that the trial court improperly denied their respective
motions for summary judgment.1 We affirm the judg-
ment of the trial court.
The trial court found the following facts. On January
1, 2009, the plaintiff commenced the English action
against Sebastian, a corporation organized under the
laws of the Turks and Caicos Islands, seeking damages
for moneys that it was allegedly owed in connection
with various trading losses incurred by Sebastian
through accounts that it had opened and operated
through the plaintiff. Sebastian incurred various debts
owed to the plaintiff through unpaid margin calls and
closeouts of its accounts with the plaintiff. Following
a forty-five day trial, the English court rendered judg-
ment in favor of the plaintiff in the amount of
$243,023,089 plus interest.
Subsequent to the English judgment, the plaintiff filed
a nonparty costs application with the English court,
seeking to hold Vik, the sole shareholder and director of
Sebastian, personally liable for portions of the plaintiff’s
court costs. On June 24, 2014, the English court issued
its decision (English costs judgment) in which it con-
cluded that Vik was personally liable for the costs
incurred by the plaintiff due to his extensive involve-
ment with the English action.2 It therefore granted the
costs application.
On December 13, 2013, the plaintiff commenced the
present action to enforce the English judgment against
Vik following Sebastian’s failure to make payments on
the English judgment. Specifically, the plaintiff sought
(1) a declaratory judgment seeking to pierce Sebastian’s
corporate veil and to hold Vik personally liable for the
amounts due under the English judgment, and (2) to
enforce the English judgment against Vik under the
Uniform Foreign Money Judgments Recognition Act,
as adopted in Connecticut.3
Following a period of discovery, on August 21, 2015,
the defendants and the plaintiff both moved for sum-
mary judgment. In their motion, the defendants argued
that res judicata barred the present action because the
plaintiff’s claim seeking to pierce the corporate veil
should have been raised in the English action. The plain-
tiff, by contrast, argued in its motion that all questions
of material fact with respect to its veil piercing claim
previously had been decided by the English court and
that Vik was collaterally estopped from denying that
he is the ‘‘alter ego’’ of Sebastian and personally liable
for the English judgment. On October 22, 2015, by way
of written memorandum of decision, the trial court
denied both parties’ motions for summary judgment.
With respect to the defendants’ motion for summary
judgment, the court concluded that the plaintiff’s veil
piercing claim was not barred by the doctrine of res
judicata because that claim was sufficiently different
in nature from the breach of contract claims in the
English action. With respect to the plaintiff’s motion
for summary judgment, the court concluded that Vik
was not collaterally estopped from denying liability for
Sebastian’s debt because the issue was not actually or
necessarily decided in the English action. From the
court’s judgment, the parties now appeal.4
We begin by setting forth our standard of review.
‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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. . . . On appeal, we must determine whether
the legal conclusions reached by the trial court are
legally and logically correct and whether they find sup-
port in the facts set out in the memorandum of decision
of the trial court.’’ (Internal quotation marks omitted.)
Savvidis v. Norwalk, 129 Conn. App. 406, 409–410, 21
A.3d 842, cert. denied, 302 Conn. 913, 27 A.3d 372 (2011).
Thus, our review of the trial court’s judgment denying
the parties’ motions for summary judgment is plenary.
See id., 410.
I
AC 38515
We turn first to the defendants’ appeal in which they
claim that the trial court improperly denied their motion
for summary judgment because the plaintiff’s veil pierc-
ing claim was barred by the doctrine of res judicata.
Specifically, the defendants argue that the plaintiff’s
veil piercing claim arises out of the same series of
transactions as the English action and should have been
raised in the English action. We disagree.
In denying the defendants’ motion for summary judg-
ment, the trial court stated: ‘‘The fact that certain evi-
dence will need to be presented in the case at bar
which was previously presented in the English action
is insufficient to invoke the doctrine of res judicata. A
piercing the corporate veil claim is different in nature
and involves a different type of claim than the original
contract claim asserted in the English action. The court
also observes that Vik was not a party in the English
action until the [nonparty costs] proceedings5 . . . .
The court also observes that the facts and evidence
which the defendants claim should bar the plaintiff’s
subsequent action were matters that were probative
of the defendants’ counterclaim and not the plaintiff’s
original contractual assertions. The plaintiff brought
the English action against [Sebastian] only asserting
a contractual claim against [Sebastian]. [Sebastian’s]
assertion of claims that broadened the evidence (claims
that the English court did not find meritorious) should
not serve to bar the plaintiff’s subsequent action to
enforce its judgment against one who allegedly depleted
the assets of [Sebastian] rendering it unable to pay its
debts. Accordingly the court holds that the plaintiff’s
claim is not barred by the doctrine of res judicata.’’
(Footnote added.)
In so doing, the court concluded that ‘‘the action
brought by the plaintiff herein is different in nature
than the English action. Thus, although the facts at
issue in the [English] action overlap with the facts at
issue in this case, the differences are more significant
than mere shadings of fact. Instead the cases lack a
common nucleus of operative facts.’’ (Internal quota-
tion marks omitted.)
The following legal principles guide our discussion.
‘‘In deciding whether the doctrine of res judicata is
determinative, we begin with the question of whether
the second action stems from the same transaction as
the first. [Our Supreme Court has] adopted a transac-
tional test as a guide to determining whether an action
involves the same claim as an earlier action so as to
trigger operation of the doctrine of res judicata. [T]he
claim [that is] extinguished [by the judgment in the first
action] 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. What factual grouping
constitutes a transaction, and what groupings consti-
tute a series, are to be determined pragmatically, giving
weight to such considerations as whether the facts are
related in time, space, origin, or motivation, whether
they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties’ expecta-
tions or business understanding or usage. . . . Orselet
v. DeMatteo, [206 Conn. 542, 545–46, 539 A.2d 95 (1988)];
see Duhaime v. American Reserve Life Ins. Co., 200
Conn. 360, 364–65, 511 A.2d 333 (1986); see also Nevada
v. United States, 463 U.S. 110, 130–31 n.12, 103 S. Ct.
2906, 77 L. Ed. 2d 509 (1983); 1 Restatement (Second),
[Judgments, § 24 (1982)]. In applying the transactional
test, we compare the complaint in the second action
with the pleadings and the judgment in the earlier
action.’’ (Internal quotation marks omitted.) Powell v.
Infinity Ins. Co., 282 Conn. 594, 604, 922 A.2d 1073
(2007).
With regard to that test, it appears that neither party
disputes that the first two requirements are satisfied:
(1) the English action resulted in a valid, final judgment
rendered on the merits; and (2) the English action and
the present action were between the same parties. See
Coyle Crate LLC v. Nevins, 137 Conn. App. 540, 548,
558 (2012). Thus, we need only address the third require-
ment, that is, whether the plaintiff’s veil piercing claims
arose from the same transaction and should have been
raised in the English action.
The substance of the plaintiff’s claim in the present
action is that Vik is Sebastian’s ‘‘alter ego,’’ and, as a
result, he is personally liable for the unsatisfied English
judgment. In the English action, the plaintiff alleged
various claims against Sebastian arising from their con-
tractual relationship. Although this precise issue has
been scarcely discussed by the courts of this state, we
agree with the trial court that Wells Fargo Bank, N.A.
v. Konover, United States District Court, Docket No.
3:05CV1924 (CFD) (D. Conn. March 20, 2008) (2008 U.S.
Dist. Lexis 21506), provides guidance.
In Wells Fargo Bank, N.A., the plaintiff bank obtained
a judgment rendered by a Maryland court against sev-
eral corporate defendants, including Konover Manage-
ment Company, for a breach of a mortgage agreement.
Id., *2. Following the defendants’ failure to satisfy the
judgment, the plaintiff brought an action before the
federal court to enforce the Maryland judgment against
an individual, Michael Konover, and his various other
entities, under a corporate veil piercing theory. Id.
In the action to enforce the Maryland judgment, the
plaintiff alleged that the individual Connecticut defen-
dant used his control over the entities named in the
Maryland judgment to drain funds from those entities.
Id. The court analyzed the complaint in the judgment
enforcement action and stated: ‘‘Counts 1 and 2 are
clearly addressed at recovering for a loss distinct from
those at issue in Maryland. The claims here are based on
the Judgment Debtor’s inability to satisfy the Maryland
judgment, rather than the mortgage default underlying
that judgment.’’ Id., *4. The court concluded that
although ‘‘the facts at issue in the Maryland action over-
lap with the facts at issue in this case, the differences
are more significant than mere shadings of facts.
Instead, the cases lack a common nucleus of operative
facts.’’ (Internal quotation marks omitted.) Id.
The circumstances in the present case are nearly
identical to those in Wells Fargo Bank, N.A. In essence,
the respective plaintiffs in both cases had secured a
prior judgment in their favor and sought to enforce that
judgment through a corporate veil piercing claim in a
subsequent action. The actual claim advanced in the
present case is that the plaintiff suffered a loss based
upon nonpayment of the judgment rendered by the
English court. In our view, the present action is not
seeking to relitigate the various claims that gave rise
to Sebastian’s liability in the English action, but seeking
to enforce that judgment. This becomes even more evi-
dent when examining the governing law pertaining to
the plaintiff’s veil piercing claims.
Prior to the parties’ respective motions for summary
judgment, the defendants moved to strike the complaint
‘‘arguing that the substantive law of [the] Turks and
Caicos [Islands] must apply to the claims made that the
corporate veil between Vik and [Sebastian] should be
pierced since [Sebastian] is a corporation organized
and existing under the laws of [the] Turks and Caicos
[Islands]. The defendants further argue[d] that under
that applicable Turks and Caicos [Islands’] law the alle-
gations of the complaint are insufficient to state a cause
of action pursuant to which the corporate veil between
Vik and [Sebastian] may be pierced.’’ The court con-
cluded that the applicable law to be applied to the
plaintiff’s veil piercing claim was the law of the Turks
and Caicos Islands and that the plaintiff sufficiently
pleaded a cause of action.
In its memorandum of decision denying the defen-
dants’ motion to strike, the court stated: ‘‘In determining
the elements and parameters of [the Turks and Caicos
Islands] law with regard to piercing the corporate veil
the affidavit relies on decisions of English courts. The
court has reviewed the affidavit submitted by the defen-
dants as well as an affidavit submitted by the plaintiff,
signed by an individual who is a solicitor admitted to
practice in England and Wales. Both affidavits purport
to set forth the law as developed in England and there-
fore applicable to [the Turks and Caicos Islands] with
regard to attempts to pierce a corporate veil. Having
reviewed those affidavits, as well as other authorities,
the court concludes that the plaintiff has adequately
alleged a cause of action under [the Turks and Caicos
Islands’] law. The affidavits submitted by the defen-
dants indicate that a corporate veil can be pierced only
if there is some ‘impropriety and that such impropriety
must be linked to the use of the companies’ structure
to avoid or conceal liability.’ The affidavits suggest that
in order to pierce a veil it is necessary that the plaintiff
show both control of the company by wrongdoers and
an impropriety that constitutes a misuse of the company
by them as a device or facade to conceal their wrongdo-
ing. The defendants’ affidavit additionally states that a
company can be a facade even though it was not origi-
nally incorporated with any deceptive intent. Rather,
the question is whether it is being used as a facade at
the time of a relevant transaction. If so, the court may
pierce the veil only so far as it is necessary to provide a
remedy for the particular wrong which those controlling
the company have done.’’
The trial court’s discussion is helpful in resolving the
present appeal because it delineates the elements that
the plaintiff must prove in its claim in the present case
and the stark differences from the claims in the English
action. It is clear to this court that the claims litigated
in the English action and those claims alleged in the
present case are distinct. For example, in prevailing on
its claims in the English action, the plaintiff was not
required to prove that Vik demonstrated control over
Sebastian and impermissibly drained its assets. Simply
put, the plaintiff in present action is not seeking to
relitigate a claim of contractual liability that previously
was decided in the English judgment. Instead, the plain-
tiff’s claims here are seeking to enforce the unsatisfied
English judgment against Vik under a corporate veil
piercing theory.
In sum, the claims alleged in the English action and
those alleged in the present action arise from a distinct
nucleus of operative facts. It is also worth noting that
Sebastian’s refusal to satisfy the judgment left the plain-
tiff in the precarious position of pursuing alternative
methods of enforcing the judgment, that being an
enforcement action seeking to pierce Sebastian’s corpo-
rate veil. Requiring the plaintiff to have pursued such
a claim in the English action would produce an unjust
result, as the plaintiff would have been required to have
anticipated that Sebastian would refuse to satisfy the
English judgment. See Gladysz v. Planning & Zoning
Commission, 256 Conn. 249, 261, 773 A.2d 300 (2001)
(courts must ensure ‘‘that the effect of the doctrine
does not work an injustice’’). We thus conclude that
the plaintiff’s veil piercing claim is not barred by the
doctrine of res judicata. Accordingly, the trial court
properly denied the defendants’ motion for summary
judgment.
II
AC 38516
We next consider the plaintiff’s appeal in which it
claims that the trial court improperly denied its motion
for summary judgment. The plaintiff argues that the
court’s denial of its motion was improper because the
issue of whether Vik is the ‘‘alter ego’’ of Sebastian
previously was decided by the English court and that the
doctrine of collateral estoppel precluded the defendants
from litigating that issue. We disagree.
In its memorandum of decision denying the plaintiff’s
motion for summary judgment, the court stated: ‘‘While
it is clear that [the English court] in issuing [its] decision
rendering the English judgment did conclude that Vik
was in control of the funds and caused them to be
transferred out of [Sebastian] to make them harder to
reach, [it] did so as a component of [its] decision deny-
ing [Sebastian’s] counterclaim against the plaintiff. In
the English action, [Sebastian] counterclaimed against
the plaintiff claiming that the plaintiff had breached
duties and contractual obligations to [Sebastian] which
resulted in funds not being available to [Sebastian] from
which it could have minimized its losses. [the English
court] concluded that the plaintiff had not breached
its contract or any other duties to [Sebastian], and,
therefore, the plaintiff was not liable to [Sebastian] for
those breach of contractual or other duties. [The
English court] additionally found that because Vik was
in control of the funds that had been transferred out
of [Sebastian], Vik could have transferred those funds
back to [Sebastian] at anytime thereby undercutting
[Sebastian’s] claim that the failure of [Sebastian] to have
access to funds caused it significant damages. But this
was unnecessary to the court’s conclusion since the
court had already determined that the plaintiff had not
breached any duties to [Sebastian]. Moreover the issue
decided by [the English court] was not whether or not
Vik was the alter ego of [Sebastian] and liable for [Sebas-
tian’s] debts but only that he was still able to control
the transfer of funds that had been transferred out of
[Sebastian] and, therefore, could have avoided damage.
To be sure in [its] lengthy and thorough decision, [the
English court] took a dim view of Vik’s conduct and
integrity but that is insufficient to establish the collat-
eral estoppel necessary to grant summary judgment for
the plaintiff.’’
Our resolution of the plaintiff’s appeal is governed
by the following legal principles. ‘‘Collateral estoppel
means simply that when an issue of ultimate fact has
once been determined by a valid and final judgment,
that issue cannot again be litigated between the same
parties in any future lawsuit. . . . To assert success-
fully the doctrine of issue preclusion, therefore, a party
must establish that the issue sought to be foreclosed
actually was litigated and determined in the prior action
between the parties or their privies, and that the deter-
mination was essential to the decision in the prior case.
. . . An issue is actually litigated if it is properly raised
in the pleadings or otherwise, submitted for determina-
tion, and in fact determined. . . . An issue is necessar-
ily determined if, in the absence of a determination of
the issue, the judgment could not have been validly
rendered. . . . Therefore, a party may assert the doc-
trine of collateral estoppel successfully when three
requirements are met: [1] [t]he issue must have been
fully and fairly litigated in the first action, [2] it must
have been actually decided, and [3] the decision must
have been necessary to the judgment. . . .
‘‘Before collateral estoppel applies there must be an
identity of issues between the prior and subsequent
proceedings. To invoke collateral estoppel the issues
sought to be litigated in the new proceeding must be
identical to those considered in the prior proceeding.
[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 identi-
cal issue. Further, [t]he [party seeking estoppel] has
the burden of showing that the issue whose relitigation
he seeks to foreclose was actually decided in the first
proceeding.’’ (Citations omitted; emphasis in original;
footnote omitted; internal quotation marks omitted.)
Wiacek Farms, LLC v. Shelton, supra, 132 Conn. App.
168–70, 30 A.3d 27 (2011).
We begin with a review of the issues presented to
each court. In the English action, the plaintiff claimed
that Sebastian suffered trading losses through the use
of accounts opened and operated through the plaintiff.
Those losses led to Sebastian incurring debts owed
to the plaintiff as a result of unpaid margin calls and
closeouts of Sebastian’s accounts with the plaintiff. In
the present case, the plaintiff claimed that Vik was
personally liable for Sebastian’s debts because he was
Sebastian’s ‘‘alter ego’’ due to, inter alia, his domination
and control of Sebastian.
It is apparent to this court that the facts relevant to
the issues in the English judgment and those in the
present case are not ‘‘identical’’ for purposes of issue
preclusion. See Corcoran v. Dept. of Social Services,
271 Conn. 679, 689–90, 859 A.2d 533 (2004). Our resolu-
tion of the plaintiff’s appeal, however, is complicated
by the English court’s disposition of Sebastian’s coun-
terclaims and the postjudgment award of costs ren-
dered against Vik.
First, Sebastian made several counterclaims in the
English action. Sebastian counterclaimed that the plain-
tiff breached its contractual duties and other duties
that it owed to Sebastian that, in turn, resulted in the
depletion of Sebastian’s funds that it could have used to
mitigate its losses. In denying Sebastian’s counterclaim,
the English court found both that (1) the plaintiff did not
breach its duties to Sebastian, contractual or otherwise,
and (2) Vik had control over Sebastian such that any
alleged breach of duty on behalf of the plaintiff should
not have interfered with Vik’s ability to transfer funds
to or from Sebastian.
In its memorandum of decision, the trial court noted
that the English court’s findings relating to Vik’s control
of Sebastian and that Vik could have transferred funds
back to Sebastian were ‘‘unnecessary to the court’s
conclusion since the court had already determined that
the plaintiff had not breached any duties to [Sebastian].’’
We agree with this assessment. Because only those
issues that were necessarily determined by the English
court could invoke the doctrine of collateral estoppel,
the English court’s finding that the plaintiff did not
breach any duties it owed to Sebastian was the only
essential issue determined by the English court per-
taining to the counterclaim. See Gladysz v. Planning &
Zoning Commission, supra, 256 Conn. 260. Thus, we
decline to afford any preclusive effect to the issues
pertaining to Vik’s control of Sebastian and related
issues because those issues found by the English court
were nonessential. See Farmington Valley Recre-
ational Park, Inc. v. Farmington Show Grounds, LLC,
146 Conn. App. 580, 589, 79 A.3d 95 (2013).
Second, the English court also made factual findings
relating to Vik’s dominion and control of Sebastian
when it awarded postjudgment costs against Vik. In our
view, the factual findings underlying the English costs
judgment cannot serve as the grounds for invoking the
doctrine of collateral estoppel for two reasons: (1) the
sole purpose of the English costs judgment was to deter-
mine whether a nonparty, Vik, could be held liable for
costs and attorney’s fees incurred during the litigation
of the English action; and (2) the English costs proceed-
ing did not afford the parties basic procedural safe-
guards, including presentation and cross-examination
of witnesses.
In its memorandum of decision as to the costs judg-
ment, the English court noted that under the applicable
provision that gives rise to the costs proceeding, § 51,6
the critical factor is the nature and degree of the nonpar-
ty’s connection with the proceedings. See Deutsche
Bank AG v. Sebastian Holdings, Inc., [2004] EWHC
2073 (Q.B.). The English court further stated, ‘‘[a]s is
plain from a number of authorities, an application under
[§] 51 does not involve the assertion of a cause of action
but is a request for the exercise by the English court
of a statutory discretion in relation to the proceedings
in which the court already has jurisdiction and, as here,
has usually already given judgment against a party sub-
ject to that jurisdiction.’’ Id.
It is apparent to this court that § 51 proceedings do
not afford the parties the same procedural safeguards
as the parties were afforded when they litigated the
underlying merits in the English action or that the par-
ties are afforded in the present case. Specifically, ‘‘[t]he
procedure for the determination of costs is a summary
procedure, not necessarily subject to all the rules that
would apply in an action.’’ Id. The English court
observed that ‘‘[§] 51 proceedings are intended to be a
‘speedy process’ where disclosure and cross-examina-
tion are not ordinarily part of the procedure.’’ Id.
Although the court could have exercised its discretion
to allow disclosure and cross-examination, the English
court instead relied solely on its findings from the
English judgment.
In light of the lack of procedural safeguards afforded
to a § 51 proceeding, we decline to apply preclusive
effect to the issues in the present case. Our courts have
declined to apply the doctrine of collateral estoppel to
findings made in proceedings where ‘‘the panoply of
procedural and discovery devices available in civil pro-
ceedings [were] not equally available . . . .’’ Connecti-
cut Natural Gas Corp. v. Miller, 239 Conn. 313, 321–22,
684 A.2d 1173 (1996); see also Gateway v. Kelso & Co.,
126 Conn. App. 578, 587, 15 A.3d 635 (2011) (declining
to invoke collateral estoppel where court permitted
only plaintiff’s witness to testify, defendant was not
allowed to call any witnesses, and defendant was not
permitted to complete cross-examination of plaintiff’s
witness). As best we can tell from the record before us,
the English costs judgment was the result of a summary
proceeding that did not afford the parties the ability to
present new evidence, to call witnesses, or to cross-
examine witnesses. Moreover, the English court explic-
itly noted that the issues in determining a nonparty
costs order were not the same as a corporate veil pierc-
ing claim.7 Thus, we decline to apply the doctrine of
collateral estoppel to the factual findings made by the
English court in the costs judgment.
Although we acknowledge that there is some overlap
in the facts relevant to the issues in the present case
and those in the English action, ‘‘[o]ur Supreme Court
has held . . . that an overlap in issues does not neces-
sitate a finding of identity of issues for the purposes of
collateral estoppel.’’ Wiacek Farms, LLC v. Shelton,
supra, 132 Conn. App. 172. Our Supreme Court has
also ‘‘recognized that applying the doctrine of collateral
estoppel has harsh consequences, namely, cutting off
a party’s right to future litigation on a given issue, [and
our Supreme Court has] been reluctant to uphold the
invocation of the doctrine unless the issues are com-
pletely identical.’’ Corcoran v. Dept. of Social Services,
supra, 271 Conn. 695. On the facts of the present case,
we decline to foreclose the issue that Vik is Sebastian’s
alter ego because that issue is not identical to those
issues that were before the English court. Moreover, we
decline to give preclusive effect to the English court’s
postjudgment costs award based on the lack of proce-
dural safeguards. Thus, the court properly concluded
that genuine issues of material fact exist as to the issues.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendants filed the present appeal on October 26, 2015, and on
October 28, 2015, the plaintiff filed its appeal.
2
Under § 51 of the United Kingdom’s Senior Courts Act, a nonparty to
an action may be summarily held liable for a judgment of attorney’s fees
and costs made against a party. See Senior Courts Act 1981, c. 54, § 51. The
English court explained in the English costs judgment that, in assessing
costs under § 51, the ‘‘critical factor’’ is ‘‘the nature and degree of the
nonparty’s connection with the proceedings.’’ Deutsche Bank AG v. Sebas-
tian Holdings, Inc., [2004] EWHC 2073 (Q.B.) The English court emphasized
that ‘‘[a]n application under [§] 51 does not involve the assertion of a cause
of action but is a request for the exercise by the English court of a statutory
discretion in relation to proceedings in which the court already has jurisdic-
tion and, as here, has usually already given judgment against a party subject
to that jurisdiction.’’ Id.
3
See General Statutes § 52-604 et seq.
4
As a threshold matter, we note that ‘‘[o]rdinarily, the denial of a motion
for summary judgment is not an appealable final judgment. . . . When the
decision on a motion for summary judgment, however, is based on the
doctrine of collateral estoppel, the denial of that motion does constitute a
final judgment for purposes of appeal. . . . That precept applies to the
doctrine of res judicata with equal force.’’ (Citations omitted; internal quota-
tion marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light &
Power Co., 300 Conn. 325, 328 n.3, 15 A.3d 601 (2011).
5
The English court’s decision in granting the nonparty costs application
reflects that it found jurisdiction over Vik solely for the purpose of awarding
a judgment for costs incurred in the English action. The English court’s
jurisdiction over Vik was derived from chapter 54, § 51 of the Senior Courts
Act 1981, which confers upon the English court ‘‘full power to determine
by whom and to what extent the costs are to be paid.’’ In granting the costs
application, the English court explained that Vik was responsible for legal
costs as a nonparty based on, inter alia, his status as the sole shareholder
and sole director of Sebastian and because Vik controlled the conduct of
the litigation on Sebastian’s behalf.
6
See footnote 2 of this opinion.
7
Specifically, the English court stated, ‘‘if a non-party costs order is made
against a company director or shareholder, it is wrong to characterize this
as piercing or lifting the corporate veil or to say that the company and the
director or shareholder are one in the same. The separate personality of a
corporation, even a single member corporation, is deeply imbedded in our
law for the purpose of dealing with legal rights and obligations.’’ Deutsche
Bank AG v. Sebastian Holdings, Inc., [2004] EWHC 2073 (Q.B.).