Hall v. Gulaid , 165 Conn. App. 857 ( 2016 )

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AINSWORTH HALL v. GULAID O. GULAID
(AC 37901)
DiPentima, C. J., and Lavine and Sheldon, Js.
Argued February 8—officially released May 31, 2016
(Appeal from Superior Court, judicial district of
Hartford, Robaina, J.)
Edward W. Case, for the appellant (plaintiff).
Michael J. Carreira, for the appellee (defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, Ainsworth Hall,
appeals from the summary judgment rendered in favor
of the defendant, Gulaid O. Gulaid. The plaintiff’s sole
claim1 on appeal is that the trial court improperly con-
cluded that his negligence action brought pursuant to
General Statutes § 52-5932 was barred by res judicata.
We disagree and, accordingly, affirm the judgment of
the trial court.
The record reveals the following undisputed facts
and procedural history that are relevant to this appeal.
This appeal stems from a motor vehicle accident that
occurred on March 31, 2012, in which an automobile
being operated by the defendant collided with a trailer
being towed by the plaintiff’s automobile. The police
accident report identified the operators involved in the
accident as the plaintiff and the defendant. The report
also noted the defendant’s Connecticut driver’s license
number and reported his birth year as 1993. The acci-
dent report identified Osman M. Gulaid (Osman), who
resided at the same address as the defendant, as the
owner of the automobile the defendant was operating
at the time of the accident.
The plaintiff commenced a negligence action against
Osman on July 11, 2013 (first action). In a single count
complaint, he alleged that Osman, while ‘‘operating his
motor vehicle,’’ ‘‘collided with the trailer of the motor
vehicle operated by the plaintiff.’’ As a result, the plain-
tiff suffered various injuries that were caused by
Osman’s alleged negligence and careless operation of
his automobile. In response, Osman filed his answer
and special defenses, in which he denied that he was the
operator of the vehicle that collided with the plaintiff’s
trailer and caused the plaintiff’s injuries.
On January 17, 2014, Osman responded to the plain-
tiff’s interrogatories and requests for production. Rele-
vant to this appeal, Osman answered that he was born in
1946, provided his Connecticut driver’s license number,
and confirmed that he was the owner of the vehicle
involved in the accident with the plaintiff. To an inter-
rogatory seeking the ‘‘names and addresses of all per-
sons known to you who were present at the time of
the incident alleged in the [c]omplaint or who observed
or witnessed all or part of the incident,’’ Osman
answered as follows: ‘‘I know my son, [the defendant]
was present. I am not aware of the name(s) of the other
individuals.’’ Furthermore, in response to two interroga-
tories starting with the prefatory clause, ‘‘[i]f you were
the operator of any motor vehicle involved in the inci-
dent that is the subject of this action,’’ Osman answered:
‘‘Not applicable.’’
On May 13, 2014, Osman moved for summary judg-
ment on the ground that there was no genuine issue of
material fact that he was not the operator of the vehicle
that collided with the plaintiff’s trailer and caused his
resulting injuries. The court, Huddleston, J., issued an
order granting Osman’s motion for summary judgment
on June 9, 2014. It noted that during discovery, Osman
had stated that he was born in 1946, had denied that
he was the operator of the vehicle, and had admitted
that his son was present at the accident site. The court
further noted that the police accident report identified
the operator of the vehicle as the defendant, born in
1993.
The plaintiff later commenced another action on June
17, 2014 (second action). The complaint in the second
action identified the defendant as the operator and
Osman as the owner of the vehicle that struck the plain-
tiff’s trailer and injured the plaintiff, but otherwise
repeated the allegations of the complaint in the first
action. This complaint made no mention of the applica-
bility of § 52-593. On June 19, 2014, the defendant and
Osman moved for summary judgment on the ground
that there was no genuine issue of material fact that
the statute of limitations, General Statutes § 52-584,3
had run. On July 14, 2014, the court, Hon. Jerry Wagner,
judge trial referee, held a hearing on the motion for
summary judgment. The plaintiff was not present.4
From the bench, the court granted the motion for sum-
mary judgment. In its order, the court noted that ‘‘[n]oth-
ing ha[d] been filed in opposition.’’ Furthermore,
because ‘‘[n]o one ha[d] appeared to [oppose] this
motion at short calendar and the statute of limitations
on this matter ha[d] long run,’’ there was no genuine
issue of material fact that the action was barred by the
statute of limitations.
The plaintiff thereafter commenced the present
action against the defendant alone on December 17,
2014. The complaint in this action included an allegation
not contained in the previous complaint, stating that
the action had been brought pursuant to § 52-593, the
wrong defendant statute. It alleged in a single count
that the defendant caused the plaintiff’s injuries through
his negligent and careless operation of the automobile
owned by Osman. On January 6, 2015, the defendant
filed a motion for summary judgment on the ground
that there was no genuine issue of material fact that the
statute of limitations had run. In addition, the defendant
argued that res judicata barred the action and that § 52-
593 could not save it. On January 20, 2015, the plaintiff
filed an objection to the motion for summary judgment,
arguing, inter alia, that the ‘‘existence of . . . § 52-593
raise[d] an issue of material fact [that] defeat[ed] [the
defendant’s motion for] [s]ummary [j]udgment . . . .’’
On February 2, 2015, the court, Robaina, J., held a
hearing on the defendant’s motion for summary judg-
ment. The plaintiff was not present at the hearing. A
little more than two weeks later, the plaintiff filed a
caseflow request to argue his objection to the motion for
summary judgment, indicating that he had not received
notice of the short calendar hearing.5 It does not appear
that the court acted on the plaintiff’s request. On March
16, 2015, the defendant’s motion for summary judgment
was granted on the ground that the ‘‘entry of summary
judgment in [the second action] preclude[d] the claim
brought in this case.’’ The plaintiff filed a motion to
reargue and a motion for articulation. Both were denied.
This appeal followed.
As a threshold matter, we set forth the applicable
standard of review and discuss the legal principles rele-
vant to our resolution of the plaintiff’s claim. It is well
established that our standard of review over a trial
court’s decision to grant summary judgment is plenary.
Finkle v. Carroll, 134 Conn. App. 278, 282, 37 A.3d
851 (2012), aff’d, 315 Conn. 821, 110 A.3d 387 (2015).
‘‘Pursuant to Practice Book § 17-49, 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. . . .
A material fact is a fact which will make a difference
in the result of the case.’’ (Internal quotation marks
omitted.) Id. Summary judgment is the appropriate
method for resolving a claim of res judicata. Zanoni v.
Lynch, 79 Conn. App. 325, 338, 830 A.2d 314, cert.
denied, 266 Conn. 928, 837 A.2d 803 (2003).
‘‘The doctrine of res judicata [claim preclusion] holds
that an existing final judgment rendered upon the merits
without fraud or collusion, by a court of competent
jurisdiction, is conclusive of causes of action and of
facts or issues thereby litigated as to the parties and
their privies in all other actions in the same or any other
judicial tribunal of concurrent jurisdiction. . . . If the
same cause of action is again sued on, the judgment is
a bar with respect to any claims relating to the cause
of action which were actually made or which might
have been made.’’ (Internal quotation marks omitted.)
Powell v. Infinity Ins. Co., 282 Conn. 594, 600, 922 A.2d
1073 (2007). ‘‘This court has recognized that a judgment
obtained through the grant of summary judgment
against a plaintiff constitutes a judgment on the merits
for purposes of res judicata.’’ (Internal quotation marks
omitted.) Boone v. William W. Backus Hospital, 102
Conn. App. 305, 311, 925 A.2d 432, cert. denied, 284
Conn. 906, 931 A.2d 261 (2007). Moreover, ‘‘[t]he appro-
priate inquiry with respect to [claim] preclusion is
whether the party had an adequate opportunity to liti-
gate the matter in the earlier proceeding . . . . 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.’’ (Citation omitted; emphasis omitted; internal quo-
tation marks omitted.) Sotavento Corp. v. Coastal Pallet
Corp., 102 Conn. App. 828, 834, 927 A.2d 351 (2007).
We are mindful that, as a judicially created rule of rea-
son that is enforced on public policy grounds; Powell
v. Infinity Ins. Co., supra, 601; our Supreme Court has
‘‘observed that whether to apply [res judicata] in any
particular case should be made based upon a consider-
ation of the doctrine’s underlying policies, namely, the
interests of the defendant and of the courts in bringing
litigation to a close . . . and the competing interest of
the plaintiff in the vindication of a just claim.’’ (Internal
quotation marks omitted.) Id.
The crux of the plaintiff’s argument on appeal is that
the doctrine of res judicata should not be applied to
§ 52-593, a remedial statute.6 This argument is premised
on the plaintiff’s belief that neither of his previous two
actions ‘‘were ever tried on the merits of the underlying
negligence claim.’’ Therefore, he claims that the statute
provides him the statutory right to commence a new
action against the defendant within one year of the first
action being terminated. Further, the plaintiff contends,
because res judicata is a ‘‘judicially created rule of rea-
son that is enforced on public policy grounds,’’ and
none of those grounds apply to the facts of this case,
the court should not have mechanically applied res
judicata to frustrate the ‘‘wrong defendant’’ statute’s
remedial purpose. We disagree.
The plaintiff’s argument rests on his assertion that the
second action did not conclude with a final judgment
rendered upon the merits of the case. The plaintiff,
however, fails to recognize that ‘‘[a] judgment on the
merits is one which is based on legal rights as distin-
guished from mere matters of practice, procedure, juris-
diction or form. . . . A decision with respect to the
rights and liabilities of the parties is on the merits where
it is based on the ultimate fact or state of facts disclosed
by the pleadings or evidence, or both, and on which the
right of recovery depends.’’ (Citations omitted; internal
quotation marks omitted.) Rosenfield v. Cymbala, 43
Conn. App. 83, 91–92, 681 A.2d 999 (1996). In the second
action, the pleadings and evidence presented to the
court established that the statute of limitations had run
because the automobile accident occurred in March,
2012, and the second action was commenced in June,
2014. Therefore, the court granted summary judgment
on the ground that there was no genuine issue of mate-
rial fact that the statute of limitations had run, barring
the plaintiff’s right of recovery. In short, the second
action was decided on the merits.
The court in the second action was not presented
with any opposition to the motion for summary judg-
ment, nor did the record include any reference to § 52-
593. We are mindful that ‘‘[t]he appropriate inquiry with
respect to [claim] preclusion is whether the party had
an adequate opportunity to litigate the matter in the
earlier proceeding . . . .’’ (Emphasis in original; inter-
nal quotation marks omitted.) Sotavento Corp. v.
Coastal Pallet Corp., supra, 102 Conn. App. 834. After
a thorough review of the record, we conclude that the
plaintiff had an adequate opportunity to litigate the
matter. To the complaint in the second action, the plain-
tiff appended Judge Huddleston’s order from the first
action granting the defendant’s motion for summary
judgment on the ground that there was no issue of
material fact that Osman was not the operator of the
automobile that struck the plaintiff’s trailer. After the
second action was terminated by Judge Wagner on the
ground that there was no issue of material fact that the
statute of limitations had run, rather than filing a motion
to reargue pursuant to Practice Book § 11-12, the plain-
tiff filed a motion for default for failure to appear on
July 24, 2014, which was denied within the week. A
motion to reargue would have been the appropriate
response to Judge Wagner’s order because the purpose
of a motion to reargue is ‘‘to demonstrate to the court
that there is some decision or some principle of law
which would have a controlling effect, and which has
been overlooked, or that there has been a misapprehen-
sion of facts.’’ (Internal quotation marks omitted.)
Opoku v. Grant, 63 Conn. App. 686, 692, 778 A.2d 981(2001). In this case, the plaintiff could have alerted the
court that it had overlooked the applicability of § 52-593.
Finally, the plaintiff’s contention that res judicata is
inapplicable in a case involving a remedial statute is
not supported by case law. On the contrary, our
Supreme Court has explained that as pertaining to Gen-
eral Statutes § 52-592, it did not ‘‘discern . . . [an]
intent to create an exception to the principles of res
judicata that require, at some point, an end to litigation.’’
Hughes v. Bemer, 206 Conn. 491, 495, 538 A.2d 703(1988). Because we have stated that ‘‘the purpose and
language of . . . §§ 52-592 and 52-593 are closely anal-
ogous’’; Henriquez v. Allegre, 68 Conn. App. 238, 244
n.10, 789 A.2d 1142 (2002); we apply our Supreme
Court’s reasoning in Hughes and do not accept the
plaintiff’s invitation to create an exception to the princi-
ples of res judicata in an action brought under § 52-
593. Accordingly, the plaintiff’s claim must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff briefed a second issue, namely, that he was denied due
process of law pursuant to the federal and state constitutions. At oral argu-
ment in this court, however, the plaintiff’s counsel withdrew this claim.
2
General Statutes § 52-593 provides in relevant part: ‘‘When a plaintiff in
any civil action has failed to obtain judgment by reason of failure to name
the right person as defendant therein, the plaintiff may bring a new action
and the statute of limitations shall not be a bar thereto if service of process
in the new action is made within one year after the termination of the
original action. . . .’’
3
General Statutes § 52-584 provides in relevant part: ‘‘No action to recover
damages for injury to the person, or to . . . personal property, caused by
negligence, or by reckless or wanton misconduct . . . shall be brought but
within two years from the date when the injury is first sustained . . . .’’
4
The plaintiff’s counsel later claimed that the defendant’s counsel did not
notify him that the motion was to be argued on July 14, 2014.
5
The plaintiff’s counsel claimed that he had not been notified that the
motion was being argued on February 2, 2015. On appeal, the defendant’s
counsel, in his appendix, submitted to this court an affidavit and a fax that
purported to show that the motion was marked as ready for argument and
that the plaintiff’s counsel had been notified via e-mail.
6
Our Supreme Court and this court previously have characterized § 52-
593 as a remedial statute. See Finkle v. Carroll, 315 Conn. 821, 831, 110
A.3d 387 (2015); DiPietro v. Farmington Sports Arena, LLC, 123 Conn.
App. 583, 594, 2 A.3d 963 (2010), rev’d on other grounds, 306 Conn. 107, 49
A.3d 951 (2012).
We also note that § 52-593 is known as the ‘‘ ‘wrong defendant’ ’’ statute.
Finkle v. Carroll, supra, 134 Conn. App. 282.