Strazza Building & Construction, Inc. v. Harris ( 2021 )

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STRAZZA BUILDING AND CONSTRUCTION,
INC. v. JENNIFER G. HARRIS,
TRUSTEE, ET AL.
(AC 43958)
Moll, Alexander, and Vertefeuille, Js.
Syllabus
The defendants H and T appealed from the judgment of the trial court
denying their motion for summary judgment against the plaintiff, S Co.
H served as trustee for T, a trust that owned certain real property where
she resided. The defendants hired S Co. as a general contractor for
renovations to the home located on the property, and, after a dispute,
the defendants terminated S Co. S Co. and two subcontractors, R Co.
and I Co., filed mechanic’s liens claiming unpaid balances. H, as trustee
for T, initiated a separate action against R Co. seeking to reduce or
discharge R Co.’s lien. S Co. subsequently commenced this action to
foreclose on its mechanic’s lien. The trial court in the separate action
found that the lienable fund for S Co.’s contract was exhausted and
concluded that R Co.’s lien was invalid. Subsequently, the court denied
the defendants’ motion for summary judgment in the present case, con-
cluding that there was a genuine issue of material fact with respect to
whether there was sufficient privity between R Co. and S Co. so as to
preclude S Co. from pursuing its claims, and this appeal followed. Held:
1. The defendants could not prevail on their claim that the court failed to
apply the doctrine of res judicata, thereby improperly denying their
motion for summary judgment:
a. The trial court correctly analyzed the issue of privity: although our
Supreme Court concluded in Girolametti v. Michael Horton Associates,
Inc. (332 Conn. 67) that the presumption of privity arises from the ‘‘flow
down’’ obligation that a general contractor owes to a subcontractor,
there is no corresponding ‘‘flow up’’ obligation extending from a subcon-
tractor to a general contractor, and, thus, the court improperly applied
the presumption of privity in this case; nevertheless, the trial court, on
the basis of certain factual findings, thoroughly analyzed the issue of
privity and correctly concluded, under the functional relationship test,
that a genuine issue of material fact existed as to whether S Co.’s interests
were sufficiently represented in the separate action so as to warrant the
application of res judicata.
b. The defendants’ claim that the existence of the right of a general
contractor to intervene in an action by a subcontractor involving a
mechanic’s lien established privity was unavailing: the defendants’ argu-
ment that, because S Co. had an interest in the separate action and
would be bound by the court’s holding in that action, S Co., therefore,
had a right to intervene in that action was circular, the defendants having
failed to identify any case holding that general contractors have an
automatic right to intervene in an application to discharge the mechanic’s
lien of a subcontractor, and the defendants did not explain how or
why a failure to intervene could establish privity for the purposes of
res judicata.
2. The trial court properly declined to apply the doctrine of collateral estop-
pel: the court thoroughly analyzed the issue of privity and the question
of whether S Co.’s interests were sufficiently represented in the separate
action, and, on the basis of this analysis, appropriately concluded that
a genuine issue of material fact existed as to whether S Co. and R Co.
were in privity.
Argued May 19—officially released September 21, 2021
Procedural History
Action, inter alia, to foreclose on a mechanic’s lien,
and for other relief, brought to the Superior Court in
the judicial district of Stamford-Norwalk, where the
named defendant et al. filed a counterclaim; therafter,
the court, Genuario, J., denied the motion for summary
judgment filed by the named defendant et al., and the
named defendant et al. appealed to this court. Affirmed.
Bruce L. Elstein, for the appellants (named defendant
et al.).
Anthony J. LaBella, with whom, on the brief, was
Deborah M. Garskof, for the appellee (plaintiff).
Opinion
VERTEFEUILLE, J. The defendants1 appeal from the
judgment of the trial court denying their motion for
summary judgment against the plaintiff, Strazza Build-
ing & Construction, Inc. (Strazza). The defendants claim
that the court improperly denied their motion for sum-
mary judgment, which was predicated on a claim that
the action is barred by the doctrine of res judicata.2 In
the alternative, the defendants claim that the court
erred in failing to find that Strazza’s claims fail as a
result of the application of collateral estoppel. We dis-
agree and affirm the judgment of the trial court.
The following facts, viewed in the light most favor-
able to Strazza, and procedural history are relevant to
this appeal. The defendant Jennifer G. Harris (Harris)
serves as trustee of the Jennifer G. Harris Revocable
Trust (trust), which owns real property located in
Greenwich. On June 7, 2016, the defendants hired
Strazza to serve as a general contractor for substantial
renovations to a home located on the property. After a
dispute arose over the cost and quality of the work that
had been completed and the estimated time remaining to
complete the project, the defendants terminated Strazza.
Prior to its termination, Strazza had billed the defen-
dants for $1,570,239.16 in labor and materials. Strazza
alleges that, of that sum, $1,009,083.28 has been paid
and that it is owed the remaining sum of $561,155.88.
Strazza and two subcontractors, Robert Rozmus Plumb-
ing & Heating, Inc. (Rozmus), and Interstate & Lakeland
Lumber Corporation, then filed and served mechanic’s
liens on the defendants claiming unpaid balances.
Strazza thereafter commenced the present action on
May 2, 2018, seeking to foreclose on its lien and alleging
claims for breach of contract and unjust enrichment.
On October 23, 2017, Harris, as trustee for the trust,
initiated a separate proceeding against Rozmus (Roz-
mus action) pursuant to General Statutes § 49-35a3 seek-
ing to reduce or discharge the mechanic’s lien filed by
Rozmus. See Harris v. Robert Rozmus Plumbing &
Heating, Inc., Superior Court, judicial district of Stam-
ford-Norwalk, Docket No. CV-XX-XXXXXXX-S. Rozmus’
mechanic’s lien claimed $97,469.86 as the amount due
to Rozmus for plumbing services and materials. A trial
was held in the Rozmus action to resolve the validity
of the mechanic’s lien. A principal of Strazza testified
at the trial. Prior to trial, Strazza’s counsel filed a motion
to file an appearance on behalf of a third-party witness.
The court in the Rozmus action, Hernandez, J., granted
the motion, but, because Strazza was not a party to
the Rozmus action, the court did not permit Strazza’s
counsel to object to any of the questions posed to the
principal of Strazza who had testified.
The court in the Rozmus action issued its memoran-
dum of decision on the motion to reduce or discharge
the mechanic’s lien held by Rozmus on July 12, 2019,
concluding that the lien was not valid. The court in the
Rozmus action first found that a number of the charges
included in the lien filed by Rozmus either were for
work that had not been completed or materials that
had never been used, and it reduced the amount of the
Rozmus lien to $62,040.36. The court next determined
whether Strazza was appropriately owed funds,
because Rozmus could recover the sum it claimed to
be owed only to the extent that Strazza, as the general
contractor, was still owed money. See, e.g., ProBuild
East, LLC v. Poffenberger, 136 Conn. App. 184, 191–92,
45 A.3d 654 (2012). The court in the Rozmus action,
therefore, reviewed the charges that were included in
the liens held by Strazza and Rozmus and found that
Harris was entitled to credits against the liens for many
of the charges. For example, the court found that sev-
eral products had been delivered, but never installed,
and that a number of charges contained unwarranted
upcharges and overhead. Ultimately, the court con-
cluded that the sum total of the credits due to Harris
was $261,194.44.
The court then reviewed the applicable legal princi-
ples, most importantly, the general rule that ‘‘[a] subcon-
tractor is subrogated to the rights of the general contrac-
tor through whom he claims, such that a subcontractor
only can enforce a mechanic’s lien to the extent that
there is unpaid contract debt owed to the general con-
tractor by the owner.’’ Id., 191–92. Additionally, ‘‘Gen-
eral Statutes §§ 49-33 and 49-36 . . . define and delimit
the fund to which a properly noticed mechanic’s lien
may attach. Both of these sections start with the propo-
sition that no mechanic’s lien may attach to any building
or land in an amount greater than the price which the
owner has agreed to pay to the general contractor for
the building being erected or improved. This amount
may be diminished to the extent that it exceeds the
reasonable cost . . . of satisfactory completion of the
contract plus any damages resulting from . . . default
for which [the general contractor] might be held liable
to the owner. . . . The amount may be diminished fur-
ther by bona fide payments, as defined in [§] 49-36,
made by the owner [to the general contractor] before
receiving notice of [the mechanic’s] lien or liens.’’ (Cita-
tion omitted; footnotes omitted; internal quotation
marks omitted.) Rene Dry Wall Co. v. Strawberry Hill
Associates, 182 Conn. 568, 571–72, 438 A.2d 774 (1980).
The court in the Rozmus action first concluded that the
total lienable fund was $151,589.15, but after sub-
tracting the credits owed to Harris, the court ultimately
concluded that the total adjusted lienable fund was
negative $109,605.29. Thus, because the lienable fund
for Strazza’s contract was entirely exhausted, the lien
held by Rozmus was invalid and ordered discharged.4
The central finding of the Rozmus action was that
no lienable fund existed. Subsequently, the defendants
filed a motion for summary judgment in the present
case, arguing that the decision in the Rozmus action
warranted the application of res judicata as to the issue
of whether a lienable fund exists and that such an out-
come is mandated by our Supreme Court’s holding in
Girolametti v. Michael Horton Associates, Inc., 332
Conn. 67, 208 A.3d 1223 (2019).5 Strazza objected to the
motion, arguing that it was not a party to the Rozmus
action and could not be bound by a ruling in which it
did not have an opportunity to participate and that there
was insufficient privity between Strazza and Rozmus
for the doctrine of res judicata to apply.
The trial court rendered judgment on February 18,
2020, denying the defendants’ motion for summary judg-
ment, from which the defendants have appealed. The
court first explained in its memorandum of decision
that ‘‘there is no genuine issue of material fact that
Rozmus was a subcontractor to [Strazza] and provided
services and materials to the property owned by Harris,
as trustee. There is no genuine issue of material fact
that Rozmus filed a mechanic’s lien on the subject prop-
erty and that Harris filed the application to discharge
that mechanic’s lien, which resulted in an evidentiary
hearing and a decision filed by the court . . . . There
is no genuine issue of material fact that the court in the
Rozmus [action] determined that there was no ‘lienable
fund’ and, [therefore], discharged the Rozmus mechan-
ic’s lien.’’ The court acknowledged that, if Strazza was
bound by the prior ruling, such a conclusion would
necessitate a grant of summary judgment, stating:
‘‘Under the applicable law regarding mechanic’s liens,
if there is no ‘lienable fund’ there can be no enforceable
mechanic’s lien. There is no question that, in the Roz-
mus [action], the court found that there was no lienable
fund. If the principles of res judicata and/or collateral
estoppel result in the Rozmus court’s holding that there
was no ‘lienable fund’ binding [Strazza], then summary
judgment must enter in favor of the defendant[s], if not,
then the [defendants’] motion for summary judgment
must be denied. This is true even though the case at
bar includes a breach of contract claim and an unjust
enrichment claim, because the ultimate finding of the
court in [the] Rozmus [action] was that [Strazza] . . .
was not due any money as a result of credits, over-
charges and defective work.’’
In finding that three of the four elements of res judi-
cata were met and, thus, that the issue of privity would
determine the outcome of the case, the trial court
stated: ‘‘The fundamental issue that will control the
decision in the case at bar is whether or not the parties
to the prior and subsequent actions were in privity with
each other . . . .’’ In addressing this issue, the court
then noted that Strazza’s mechanic’s lien is for a sub-
stantially greater sum than Rozmus’ mechanic’s lien,
and that the court in the Rozmus action considered
many aspects of the project in which Rozmus had no
involvement, as Rozmus was involved only in plumbing.
Based on these facts, and because Strazza was not
a party to the prior proceeding, the court questioned
whether it would be equitable ‘‘to bind [Strazza] to
findings based upon litigation involving a party subcon-
tractor whose involvement in the project represented
only a small portion of the work and who might not be
in a position to defend the allegations of wrongdoing
made against the general contractor concerning por-
tions of the work in which the subcontractor had little
or no involvement.’’ Ultimately, the court concluded
that, ‘‘[w]hile it would seem intuitive that if, as a princi-
ple of law, a subcontractor is in privity with a general
contractor, that the general contractor must be in priv-
ity with the subcontractor. However, because the princi-
ple, at most, renders a rebuttable presumption, the court
must consider the functional relationship between the
parties to determine whether or not there is privity for
purposes of employing res judicata or collateral estop-
pel. As stated, while both Rozmus and [Strazza] are
interested in the same question, to wit, whether or not
there was a lienable fund (and therefore whether
[Strazza] is due any money from [the defendants]), it
is difficult to determine that a lone subcontractor’s
interest in many of these underlying factual issues pre-
sents such an identification of interest so as to justify
preclusion of [Strazza] from litigating its rights to pay-
ment. . . . For all these reasons the court concludes
that there is a genuine issue of material fact with regard
to the issue of whether or not there was sufficient privity
between Rozmus and [Strazza] . . . so as to preclude
[Strazza] from pursuing its claims against the owner,
and for that reason the motion for summary judgment
must be denied.’’ This appeal followed.6
I
The defendants first claim that the court failed to
apply res judicata, thereby improperly denying their
motion for summary judgment. Specifically, the defen-
dants claim that the court (1) failed to apply the pre-
sumption of privity appropriately and (2) failed to con-
sider that Strazza had the right to intervene in the
Rozmus action. In response, Strazza argues that the
court correctly considered the presumption and deter-
mined that Strazza had overcome the presumption, and
that the court properly dismissed the defendants’ inter-
vention of right argument.
We first set forth our standard of review and the
applicable legal principles.
‘‘[T]he applicability of res judicata . . . presents a
question of law over which we employ plenary review.’’
(Internal quotation marks omitted.) Girolametti v.
Michael Horton Associates, Inc., supra, 332 Conn. 75.
Where, however, only the element of privity is relevant,
as in the present case, this legal question is driven by
the factual findings of the court relative to the functional
relationship of the parties. See id., 76.
‘‘[T]he doctrine of res judicata, or claim preclusion,
[provides that] a former judgment on a claim, if ren-
dered on the merits, is an absolute bar to a subsequent
action [between the same parties or those in privity
with them] on the same claim. A judgment is final not
only as to every matter which was offered to sustain
the claim, but also as to any other admissible matter
which might have been offered for that purpose. . . .
The rule of claim preclusion prevents reassertion of the
same claim regardless of what additional or different
evidence or legal theories might be advanced in support
of it. . . . In order for res judicata to apply, four ele-
ments must be met: (1) the judgment must have been
rendered on the merits by a court of competent jurisdic-
tion; (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.’’
(Emphasis omitted; internal quotation marks omitted.)
Id., 75. As stated previously, only the privity element
is relevant to this appeal.
‘‘The following principles govern the second element
of res judicata, privity . . . . Privity is a difficult con-
cept 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
[preclusion] 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. . . .
‘‘While it is commonly recognized that privity is diffi-
cult to define, the concept exists to ensure that the
interests of the party against whom collateral estoppel
[or res judicata] is being asserted have been adequately
represented . . . . A key consideration in determining
the existence of privity is the sharing of the same legal
right by the parties allegedly in privity. . . .
‘‘Consistent with these principles, this court and
other courts have found a variety of factors to be rele-
vant to the privity question. These factors include the
functional relationships between the parties, how
closely their interests are aligned, whether they share
the same legal rights, equitable considerations, the par-
ties’ reasonable expectations, and whether the policies
and rationales that underlie res judicata—achieving
finality and repose, promoting judicial economy, and
preventing inconsistent judgments—would be served.
. . . [T]he crowning consideration, [however, is] that
the interest of the party to be precluded must have been
sufficiently represented in the prior action so that the
application of [res judicata] is not inequitable.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,75–77.
A
The defendants first claim that the trial court failed
to appropriately consider the presumption of privity set
forth in Girolametti. In response, Strazza argues that
the court correctly concluded that the presumption was
rebutted. We conclude that the presumption does not
apply because the facts of Girolametti are clearly distin-
guishable from those of the present case. We further
conclude, however, that the judgment of the court
should be affirmed on the basis of its analysis relative
to the issue of privity.
We turn first to the issue of the applicability of the
presumption of privity. Because our Supreme Court’s
decision in Girolametti is central to the parties’ claims,
we provide a brief summary of that case. In Girolametti,
following the completion of a construction project, the
owners of the property and the general contractor
entered into arbitration to resolve various disputes. Id.,71–72. Before the arbitration concluded, the owners
decided to no longer participate in the arbitration hear-
ings and failed to present their damages claims. Id.,
72. The arbitrator subsequently awarded the general
contractor $508,597 in damages and ruled that, because
the owners had made a conscious decision to no longer
attend the arbitration, they either did not incur any
damages or were unable to prove their damages. Id., 72–
73.
The appeal in Girolametti concerned two actions:
one filed during the arbitration proceedings and one
filed thereafter, in which the owners alleged negligence
in connection with the design and construction of the
second floor of the building and sought damages from
the general contractor and the subcontractors. Id. Each
of the defendants filed a motion for summary judgment
on the basis of res judicata, arguing that all of the claims
raised in the owner’s actions either had been or could
have been raised and resolved in the arbitration. Id.The trial court granted the motion filed by the general
contractor but denied the motions filed by the subcon-
tractors, concluding that the subcontractor defendants
were not parties to the arbitration and, thus, were not
in privity with the general contractor. Id., 73–74. The
subcontractor defendants appealed from the denial of
their motions. Id., 74.
This court ruled that each of the subcontractor defen-
dants was in privity with the general contractor for the
purposes of res judicata. Girolametti v. Michael Horton
Associates, Inc., 173 Conn. App. 630, 685, 164 A.3d 731(2017), aff’d, 332 Conn. 67, 208 A.3d 1223 (2019). Our
Supreme Court affirmed this court’s ruling, stating that
‘‘the Appellate Court correctly determined that when a
property owner and a general contractor enter into
binding, unrestricted arbitration to resolve disputes
arising from a construction project, subcontractors are
presumptively in privity with the general contractor
with respect to the preclusive effects of the arbitration
on subsequent litigation arising from the project.’’ Giro-
lametti v. Michael Horton Associates, Inc., supra, 332
Conn. 87.
In the present case, the defendants argue that the
trial court effectively ignored the presumption of privity
set forth in Girolametti. Girolametti, however, is
clearly distinguishable from the present case because
it involved a situation in which a property owner and a
general contractor were engaged in previous arbitration
proceedings. Id., 71. This is significant because, in the
present case, the previous action was between Harris,
as trustee for the trust, which owned the property,
and Rozmus, a subcontractor. This difference is crucial,
because our Supreme Court concluded in Girolametti
that the presumption of privity arises from the ‘‘flow
down’’ obligation that a general contractor owes to a
subcontractor. (Internal quotation marks omitted.) Id.,
89. As the court detailed, ‘‘this rule primarily has been
justified on the theory that subcontractors are in privity
of contract with a general contractor, [although] some
commentators and other legal authorities also have rea-
soned that the parties share legal rights because general
contractors are vicariously or derivatively liable for the
work of their subcontractors.’’ Id., 80–81. In light of this
language, it is clear that the opposite is not necessarily
true, meaning that there is no corresponding ‘‘flow up’’
obligation that extends from a subcontractor to a gen-
eral contractor.
Despite there being no corresponding ‘‘flow up’’ obli-
gation that runs from a subcontractor to a general con-
tractor, the trial court still applied the Girolametti pre-
sumption of privity to the facts of this case. In so doing,
the court effectively established a ‘‘flow up’’ obligation
that began with Rozmus—the subcontractor—and
extended to Strazza—the general contractor. This is
clearly beyond the scope of the applicability of the
presumption, as detailed by our Supreme Court in Giro-
lametti, and, for this reason we conclude that the court
erred in applying the presumption of privity to the facts
of this case.7
Having reached this conclusion, we note that ‘‘[i]t is
axiomatic that [we] may affirm a proper result of the
trial court for a different reason.’’ (Internal quotation
marks omitted.) Rafalko v. University of New Haven,
129 Conn. App. 44, 51 n.3, 19 A.3d 215 (2011). This
principle guides our analysis in the present case
because, after applying the presumption of privity, the
court found that, because it is ‘‘at most . . . a rebutta-
ble presumption, [it] must [still] consider the functional
relationship between the parties to determine whether
or not there is privity for purposes of employing res
judicata or collateral estoppel.’’ Accordingly, the court
still conducted a thorough analysis of the issue of priv-
ity, despite having improperly applied the presumption.
In conducting this analysis, the trial court accurately
concluded that, under the functional relationship test,
a genuine issue of material fact existed as to the ques-
tion of whether Strazza’s interests were sufficiently rep-
resented in the Rozmus action. After noting that the
amount of the mechanic’s lien held by Rozmus was far
less than Strazza’s lien, the court noted that ‘‘in litigating
the issue of the amount of the lienable fund the [court
in the Rozmus action] had to decide many issues relat-
ing to work that Rozmus, a plumbing subcontractor,
had no involvement. A review of the decision in [the]
Rozmus [action] reveals that the basis of the court’s
decision centered around many portions of the renova-
tions and improvements to the subject property with
which Rozmus had virtually no involvement. In Girola-
metti, the opposite was true. The first action involved
the general contractor who presumably had involve-
ment in all aspects of the job. The holding in Girolametti
was that the owner, who was a party to the first proceed-
ing brought by the general contractor, was bound by
the rulings in that case when subsequent cases were
brought by the subcontractors because the subcontrac-
tors were in privity with the general contractor. There
[was] no basis for determining that it would be inequita-
ble to preclude the owner, who had the opportunity
to fully participate in the first proceeding, from later
contesting findings in that first proceeding in later pro-
ceedings between himself and certain subcontractors.
The owner in Girolametti . . . had every opportunity
to assert any claim that he might have against a [subcon-
tractor] in the case against the general contractor. The
same is not true in the [present] case . . . . [T]he . . .
interest [of Rozmus] in the prior litigation, while not
nominal, was less than 12 percent of the value of the
claim of [Strazza] . . . . More importantly, Rozmus
would not have firsthand knowledge [of] or significant
involvement [in] many aspects of the required perfor-
mance of other areas of necessary performance under
the general contract.’’
These findings demonstrate that the court conducted
a thorough analysis with regard to the issue of privity.
Moreover, we agree with the outcome of the court’s
analysis, and therefore conclude that, despite having
erroneously applied the presumption of privity, the
court nevertheless correctly determined that there was
a genuine issue of fact as to whether Strazza was in
privity with Rozmus for the purpose of res judicata.
B
The defendants also claim that a general contractor
has a right to intervene in an action brought by a subcon-
tractor involving a mechanic’s lien, pursuant to General
Statutes §§ 52-102 and 52-107,8 and that the existence
of such a right establishes privity. Specifically, the
defendants argue that Strazza had a right to intervene
in the Rozmus action because Strazza had an interest
in the action and would be bound by that action. In
response, Strazza claims that the court thoroughly con-
sidered, and properly rejected, the defendants’ argu-
ment in this regard. We agree with Strazza.
In resolving this claim, we turn to the reasoning of the
trial court: ‘‘[T]he application to discharge a mechanic’s
lien is a statutory right of action designed to provide a
property owner with an expeditious process for chal-
lenging an encumbrance placed upon his property. The
limited relief allowed, the discharge of the subject
mechanic’s lien, contradicts the defendants’ claim that
Strazza had an interest in the subject matter since the
subject matter of the case was the validity of the . . .
mechanic’s lien [held by Rozmus] and no other. The
defendant[s] [argue] that, because [Strazza] would be
bound by the holding regarding the existence of a lien-
able fund, [Strazza] had an interest in the case, and,
therefore, would have been allowed to intervene as a
matter of right. This, of course, is a circular argument.
Its reasoning is that Strazza had a right to intervene
because it would be bound by the holding and that
because it would be bound by the holding it had a right
to intervene.’’
We agree with the reasoning of the court that the
defendants’ argument is circular. Moreover, the defen-
dants have failed to identify a single case holding that
general contractors have an automatic right to intervene
in an application to discharge a subcontractor’s
mechanic’s lien. Further, beyond the bare assertion that
‘‘the failure to intervene cannot now bolster [Strazza’s]
argument that res judicata does not apply,’’ the defen-
dants have failed to explain how or why a failure to
intervene could establish privity for the purposes of res
judicata. In any event, if the law does not provide that
a general contractor has a right to intervene in a subcon-
tractor’s lien discharge case, we fail to see how it could
possibly be equitable to later preclude a general con-
tractor’s action for its failure to attempt to intervene.
Accordingly, we conclude that the court properly
rejected the defendants’ argument that Strazza should
be bound by the holding in the Rozmus action as a
result of its failure to intervene.
II
The defendants’ final claim is that the court improp-
erly failed to find that collateral estoppel applied to
Strazza’s claims. In response, Strazza claims that the
application of collateral estoppel is barred because a
genuine issue of material fact exists with regard to the
issue of privity. We agree with Strazza.
We set forth the applicable legal principles. ‘‘Collat-
eral estoppel means simply that when an issue of ulti-
mate 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
successfully the doctrine of issue preclusion, therefore,
a party must establish that the issue sought to be fore-
closed actually was litigated and determined in the prior
action between the parties or their privies, and that the
determination was essential to the decision in the prior
case.’’ (Internal quotation marks omitted.) Deutsche
Bank AG v. Sebastian Holdings, Inc., 174 Conn. App.
573, 587, 166 A.3d 716 (2017), aff’d, 331 Conn. 379, 204
A.3d 664 (2019).
Because the sole issue in the present case is whether
Strazza and Rozmus were in privity, ‘‘we recognize the
‘crowning consideration’ in collateral estoppel cases
and the basic requirement of privity—that the interest
of the party to be precluded must have been sufficiently
represented in the prior action so that the application
of collateral estoppel is not inequitable. . . . A trial in
which one party contests a claim against another should
be held to estop a third person only when it is realistic
to say that the third person was fully protected in the
first trial.’’ (Citation omitted.) Mazziotti v. Allstate Ins.
Co., 240 Conn. 799, 818, 695 A.2d 1010 (1997).
In resolving the defendants’ claim, we turn to our
analysis in part I A of this opinion. As discussed in the
context of res judicata, the court conducted a thorough
analysis with regard to the issue of privity and the
question of whether Strazza’s interests were sufficiently
represented in the Rozmus action. On the basis of this
analysis, the court appropriately reached the conclu-
sion that a genuine issue of material fact exists with
regard to the issue of whether Strazza and Rozmus were
in privity. Because the privity requirement of collateral
estoppel, when applicable, is analyzed under the same
principles as res judicata, we conclude that the court
also properly rejected this claim. See id.The judgment is affirmed.
In this opinion the other judges concurred.
1
This action was brought against the defendant Jennifer G. Harris, both
in her individual capacity and as trustee of the Jennifer G. Harris Revocable
Trust, which owns the subject real property, and the defendants Robert
Rozmus Plumbing & Heating, Inc., and Interstate & Lakeland Lumber Corpo-
ration, as junior lienholders to the property. The junior lienholders are not
participating in this appeal. Accordingly, our references to the defendants
in this opinion are to Jennifer G. Harris, both in her individual capacity and
as trustee for the trust.
2
Generally, the denial of a motion for summary judgment is not appealable,
but the denial of a motion for summary judgment predicated on the doctrine
of res judicata is a final judgment for purposes of appeal. See Singhaviroj
v. Board of Education, 124 Conn. App. 228, 232, 4 A.3d 851 (2010).
3
General Statutes § 49-35a (a) provides: ‘‘Whenever one or more mechan-
ics’ liens are placed upon any real estate pursuant to sections 49-33, 49-34,
49-35 and 49-38, the owner of the real estate, if no action to foreclose the
lien is then pending before any court, may make application, together with
a proposed order and summons, to the superior court for the judicial district
in which the lien may be foreclosed under the provisions of section 51-345,
or to any judge thereof, that a hearing or hearings be held to determine
whether the lien or liens should be discharged or reduced. The court or
judge shall thereupon order reasonable notice of the application to be given
to the lienor or lienors named therein and, if the application is not made
by all owners of the real estate as may appear of record, shall order reason-
able notice of the application to be given to all other such owners, and shall
set a date or dates for the hearing or hearings to be held thereon. If the
lienor or lienors or any owner entitled to notice is not a resident of this
state, the notice shall be given by personal service, registered or certified
mail, publication or such other method as the court or judge shall direct.
At least four days’ notice shall be given to the lienor, lienors or owners
entitled to notice prior to the date of such hearing.’’
4
Harris also requested the court in the Rozmus action to make a finding
that Strazza’s behavior constituted fraud, but the court declined to do so,
explaining that, ‘‘[w]hile the court has very serious concerns about the
manner in which the project was undertaken, monitored and billed, Strazza
is not a party to this action and, thus, does not have an opportunity to rebut
[Rozmus’] claimed inferences. Moreover . . . because there is a net nega-
tive balance in the lienable fund, the court does not need to make [a] finding
of fraud to reach its conclusion that the instant lien is not enforceable.’’
5
In Girolametti, our Supreme Court held that, when a property owner and
general contractor were previously involved in arbitration, ‘‘in the absence
of clear evidence of contrary intent by the parties, subcontractors are pre-
sumptively in privity with the general contractor on a construction project
for purposes of res judicata.’’ Girolametti v. Michael Horton Associates,
Inc., supra, 332 Conn. 71.
6
While this appeal was pending, the defendants filed a motion for an
articulation of the trial court’s decision pursuant to Practice Book § 66-5.
The court issued its articulation on July 16, 2020. The court expressed its
belief that it had adequately addressed the defendants’ arguments as to
privity and the application of Girolametti to the present case but, neverthe-
less, addressed those issues in more detail. Further, the court acknowledged
that it had not addressed the defendants’ claim, raised for the first time in
their reply brief in support of their motion for summary judgment, that
Strazza could have intervened as a matter of right in the Rozmus action
pursuant to General Statutes §§ 52-102 and 52-107. In addressing and denying
that claim in its articulation, the court noted that the defendants did not
cite a single case holding that a general contractor can intervene as a matter
of right in an action involving a homeowner’s application to discharge a
mechanic’s lien of a subcontractor.
7
We note that a ‘‘flow up’’ obligation establishing privity could exist under
circumstances in which a general contractor is seeking only the same funds
that a subcontractor sought and lost in a prior action, but, in such a case, the
property owner would not be able to rely on the Girolametti presumption.
8
General Statutes § 52-102 provides: ‘‘Upon motion made by any party or
nonparty to a civil action, the person named in the party’s motion or the
nonparty so moving, as the case may be, (1) may be made a party by the
court if that person has or claims an interest in the controversy, or any part
thereof, adverse to the plaintiff, or (2) shall be made a party by the court
if that person is necessary for a complete determination or settlement of
any question involved therein; provided no person who is immune from
liability shall be made a defendant in the controversy.’’
General Statutes § 52-107 provides: ‘‘The court may determine the contro-
versy as between the parties before it, if it can do so without prejudice to
the rights of others; but, if a complete determination cannot be had without
the presence of other parties, the court may direct that such other parties
be brought in. If a person not a party has an interest or title which the
judgment will affect, the court, on his application, shall direct him to be
made a party.’’