State v. Bacon Construction Co. ( 2015 )

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STATE OF CONNECTICUT v. BACON
CONSTRUCTION COMPANY,
INC., ET AL.
(AC 36829)
Beach, Sheldon and Bear, Js.
Argued March 17—officially released September 22, 2015
(Appeal from Superior Court, judicial district of
Waterbury, Complex Litigation Docket, Dooley, J.)
Jared Cohane, with whom were Timothy T. Corey
and, on the brief, Peter J. Martin, for the appellant
(named defendant).
Charles D. Ray, with whom were Benjamin F. Elliott
and, on the brief, Thomas J. Finn and John J. Robinson,
for the appellee (plaintiff).
Opinion
SHELDON, J. The named defendant, Bacon Construc-
tion Company, Inc.,1 appeals from the trial court’s denial
of its motion for summary judgment, in which it argued
that the claims herein asserted by the plaintiff, the state
of Connecticut, are all barred by the doctrines of res
judicata and collateral estoppel2 because such claims
were or could have been made and decided in an earlier
arbitration proceeding initiated by the defendant pursu-
ant to General Statutes § 4-61.3 We affirm the judgment
of the trial court.
This action arises out of a contract between the plain-
tiff and the defendant for the construction of the York
Correctional Institution in Niantic. After completion of
its work under the contract, the defendant filed a
demand for arbitration, in which it sought money dam-
ages against the plaintiff for alleged breach of contract.
The arbitrator ruled in favor of the defendant, and thus
awarded it damages as requested. That award was later
confirmed by the Superior Court and upheld by our
Supreme Court on the plaintiff’s appeal from the Supe-
rior Court’s judgment confirming the award. See Bacon
Construction Co. v. Dept. of Public Works, 294 Conn.
695, 987 A.2d 348 (2010).
The plaintiff thereafter brought the present action in
the Superior Court. This action arises out of the same
contract that was the subject of the previous arbitration
proceeding, and is based on allegations that the defen-
dant was negligent and breached its contract with the
plaintiff in performing its work at the York Correctional
Institution. At the outset of this action, the plaintiff filed
an application for a prejudgment remedy against the
defendant, seeking various forms of relief. In its objec-
tion to that application, the defendant asserted, inter
alia, that, in light of the arbitrator’s determination that
the defendant had performed all of its obligations under
the contract, the plaintiff’s claims were all barred by
the doctrines of res judicata and collateral estoppel. In
a memorandum of decision dated December 16, 2008,
which we will discuss more fully in this opinion, the
trial court rejected the defendant’s claims of res judicata
and collateral estoppel, and thus overruled the defen-
dant’s objection.4
The defendant thereafter filed a motion for summary
judgment, wherein it once again alleged, inter alia, that
the plaintiff’s claims were all barred by the doctrines
of res judicata and collateral estoppel, and thus that
the defendant was entitled to judgment on those claims
as a matter of law. On January 21, 2014, the court denied
the defendant’s motion for summary judgment. The
court explained, in so ruling, that it had ‘‘reviewed the
records from the arbitration proceeding and all of the
exhibits upon which the parties rel[ied] in their respec-
tive submissions,’’ and found that the issues raised in
the motion for summary judgment ‘‘were correctly
decided’’ by the court when, on December 16, 2008, it
overruled the defendant’s objection to the plaintiff’s
application for a prejudgment remedy.5 The court con-
cluded: ‘‘No useful purpose would be served by a reiter-
ation of the law and analysis set forth in [the December
16, 2008] memorandum of decision. [The defendant’s]
argument that [the court’s earlier determination of the
preclusion claims] runs contrary to fundamental breach
of contract law is not persuasive and is rebutted by the
principles and concepts relied upon . . . in [that] . . .
decision. The doctrines of res judicata and collateral
estoppel do not bar the [plaintiff’s] claims against [the
defendant]. The motion for summary judgment is
denied.’’6
The following relevant factual and procedural history
was set forth in the trial court’s December 16, 2008
memorandum of decision on the defendant’s objection
to the plaintiff’s application for a prejudgment remedy.
‘‘[The defendant] is one of ten defendants whom the
[plaintiff] alleges are responsible for substantial defects
in the design and construction of the correctional facil-
ity for women (York) at Niantic. . . .
‘‘The allegations of the complaint filed [in this action],
very briefly stated, are as follows. [The defendant], a
Rhode Island corporation, performed masonry and
related services on a project which involved the design
and construction of twenty-two buildings at York (proj-
ect). The project began in 1990 with design activities;
construction commenced in 1991 and was completed
in 1996. Over time the state experienced problems with
water intrusion into the buildings, cracks in the
masonry facade and efflorescence and organic growth
on the masonry facade, which problems continued and
worsened. Engineers retained by the state identified
numerous defects in the design, construction and instal-
lation of the masonry work.
‘‘In its first two counts the complaint alleges that
these defects were proximately caused by [the defen-
dant]’s breach of its contract with the [plaintiff] and its
negligence in performing under the contract. In the third
and fourth counts the [plaintiff] claims that, in order
to receive partial payments for its work, [the defendant]
either intentionally or negligently made misrepresenta-
tions when it filed periodic certifications that it had
performed its work in compliance with the plans, speci-
fications and contract documents. As a result, the [plain-
tiff] claims to have incurred costs to correct the defects
and to repair or replace damaged furnishings and equip-
ment, suffered a diminution in the value and service
life of York, lost the beneficial use of York or portions
of it and experienced increased operating costs and
inefficiencies in its operation of York. . . .
‘‘[The defendant]’s demand for arbitration was filed
with the American Arbitration Association (AAA) on
August 1, 2005, and it sought to resolve a ‘dispute over
payment of contract balance and payment for additional
work.’ . . . It was stated in two counts, one for breach
of contract; the other, unjust enrichment. . . . Para-
graph 8 of both counts alleged that ‘[the defendant]
undertook the performance of its obligations under the
contract in strict and full accordance with the plans,
specifications, and general and special conditions of
the contract and amendments thereto, and did com-
pletely and fully satisfy the obligations of the con-
tract.’ . . .
‘‘In its ‘answering statement’ of October 12, 2006, the
[plaintiff] stipulated to that allegation . . . and in an
amended answering statement of November 1, 2006,
the [plaintiff] made clear that it so stipulated ‘for the
limited purposes of this arbitration only.’ . . .
‘‘In between these two pleadings [the defendant]
attempted to file an amended demand for arbitration
which added a third count alleging that its work under
the contract was ‘performed in accordance with the
plans and specifications and free from defect.’ . . . In
its prayer for relief on this proposed amendment, it
sought, in effect, a declaratory judgment that it had
performed its work in accordance with the plans and
specifications and free from defects. . . . The [plain-
tiff] objected to this attempt on the ground that the
requested declaratory relief was not permitted under
§ 4-61. It made it clear that it might, indeed, have claims
against [the defendant] and others involved in the con-
struction of York for allegedly defective construction,
which it intended to bring ‘in a different jurisdiction.’
. . . After the [plaintiff] filed a notice of its election
not to file counterclaims against [the defendant] in the
arbitration, reserving its rights to assert such claims in
‘another forum and/or action’ . . . the arbitrator ruled
that he lacked jurisdiction to consider the claim for
declaratory relief because it was not a claim ‘under the
contract,’ as required by § 4-61. . . . He ‘denied’ [the
defendant]’s amended complaint, and ordered that the
arbitration proceed under its original demand. . . .
‘‘The arbitrator rendered his decision on January 25,
2008. . . . He summarized [the defendant]’s claims as
follows: ‘[The defendant] alleges that it is entitled to
damages on account of unpaid contract balance, addi-
tional work and costs incurred as a consequence of
delays and disruptions attributable to [the state] and/
or its project construction manager. . . .’ The major
portion of the [arbitrator’s] decision analyzed [the
defendant]’s claims for damages due to alleged delays
and disruptions of the construction schedule caused by
the [plaintiff] and/or its construction manager. . . . Its
allegation, admitted by the [plaintiff] for purposes of
the arbitration, that it had performed in accordance
with its contract with the [plaintiff] played no role in
the arbitrator’s determination of those claims.
‘‘The arbitrator did find that [the defendant] was enti-
tled to payment of an outstanding balance of $82,812.81,
known as the ‘retainage’ on the contract. . . . He made
no findings as to whether [the defendant] had proved
its allegation that it had performed ‘in strict and full
accordance with the plans, specifications and general
and special conditions of the contract and amendments
thereto,’ noting simply that the state ‘has not challenged’
that assertion. . . . [The arbitrator concluded:] ‘In light
of that admission . . . I see no legal basis why [the
defendant] would not be entitled to its retainage. . . .’ ’’
(Citations omitted; emphasis in original.)
The court further found: ‘‘A review of the arbitrator’s
decision demonstrates that most of [the defendant]’s
claims had to do with delays and disruptions in the
construction schedule, who was responsible for them
and what were their consequences for [the defendant].
. . . These were not the kinds of claims which required
the arbitrator to determine whether [the defendant]
performed its work negligently and, therefore, not the
kind of claims to which the state would be expected
to assert its claim for allegedly defective construction.
[The defendant]’s claim for the retainage on the ground
that it had performed in conformity with the construc-
tion contract would have permitted the state to claim
in response that it had performed negligently, but it did
not require the state to do so. . . . The [plaintiff] did
raise as special defenses a jurisdictional claim of sover-
eign immunity due to alleged untimely notice and one
of accord and satisfaction . . . both of which the arbi-
trator rejected. . . . Certain performance related
claims which the state attempted to raise in its post-
hearing brief; viz., that [the defendant] had failed to pay
prevailing wages on the project, to provide a ten year
warranty against moisture intrusion and to deliver as-
built drawings . . . did not go to the quality of [the
defendant]’s work on the project and were not consid-
ered by the arbitrator.’’ (Citations omitted; emphasis
in original.)
The trial court concluded: ‘‘The conduct of the arbi-
tration and its resolution by the arbitrator demonstrates
that the [plaintiff] never asserted in arbitration the claim
of defective construction it makes in the complaint
here. Furthermore, when [the defendant] attempted to
force the issue by its proposed amendment of the arbi-
tration complaint, the arbitrator refused to entertain
the amendment because he lacked jurisdiction to do
so. Finally, whether or not [the defendant]’s perfor-
mance was in conformity with its contract with the
state was never litigated in the arbitration, the arbitrator
ordering payment of the retainage based on the state’s
admission of that allegation for purposes of the arbi-
tration.’’
As previously noted, the trial court relied expressly
upon the December 16, 2008 decision on the defendant’s
objection to the plaintiff’s application for a prejudgment
remedy in denying the defendant’s motion for summary
judgment based upon its special defenses of res judicata
and collateral estoppel to the plaintiff’s instant claims
of negligence and breach of contract. ‘‘Practice Book
[§ 17-49] provides that summary judgment shall be ren-
dered 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. . . . In deciding a
motion for summary judgment, the trial court must view
the evidence in the light most favorable to the nonmov-
ing party. . . . The party seeking summary judgment
has the burden of showing the absence of any genuine
issue [of] material facts which, under applicable princi-
ples of substantive law, entitle him to a judgment as a
matter of law . . . and the party opposing such a
motion must provide an evidentiary foundation to dem-
onstrate the existence of a genuine issue of material
fact. . . . [T]he scope of our review of the trial court’s
decision to grant the [defendant’s] motion for summary
judgment is plenary.’’ (Internal quotation marks omit-
ted.) Doran v. First Connecticut Capital, LLC, 143
Conn. App. 318, 320–21, 70 A.3d 1081, cert. denied, 310
Conn. 917, 76 A.3d 632 (2013). The applicability of the
doctrines of res judicata and collateral estoppel pre-
sents a question of law over which our review also is
plenary. See Marques v. Allstate Ins. Co., 140 Conn.
App. 335, 339, 58 A.3d 393 (2013); Nipmuc Properties,
LLC v. Meriden, 130 Conn. App. 806, 812, 25 A.3d 714,
cert. denied, 302 Conn. 939, 28 A.3d 989 (2011), cert.
denied, U.S. , 132 S. Ct. 1718, 182 L. Ed. 2d
253 (2012).
We begin with a brief overview of the doctrines of
res judicata and collateral estoppel in general before
addressing the defendant’s specific claims on appeal as
to the applicability of those doctrines to this case.
‘‘Claim preclusion (res judicata) and issue preclusion
(collateral estoppel) have been described as related
ideas on a continuum. . . . [W]e have observed that
whether to apply either doctrine in any particular case
should be made based upon a consideration of the doc-
trine’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. . . . The judicial doc-
trines of res judicata and collateral estoppel are based
on the public policy that a party should not be able to
relitigate a matter which it already has had an opportu-
nity to litigate. . . .
‘‘The doctrine of res judicata 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 tribu-
nal 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. . . . Res judicata bars not only subsequent relit-
igation of a claim previously asserted, but subsequent
relitigation of any claims relating to the same cause of
action . . . which might have been made. . . .
‘‘Collateral estoppel, or issue preclusion, is that
aspect of res judicata which prohibits the relitigation
of an issue when that issue was actually litigated and
necessarily determined in a prior action between the
same parties upon a different claim. . . . 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. . . . Issue pre-
clusion arises when an issue is actually litigated and
determined by a valid and final judgment, and that deter-
mination is essential to the judgment.’’ (Citations omit-
ted; internal quotation marks omitted.) Massey v.
Branford, 119 Conn. App. 453, 464–65, 988 A.2d 370,
cert. denied, 295 Conn. 921, 991 A.2d 565 (2010).
Here, the defendant argues that the claims set forth
in the plaintiff’s complaint in this case are barred by
both doctrines. If the plaintiff’s claims are barred by
either doctrine, the defendant is entitled to judgment
as a matter of law and analysis of the other doctrine
would be unnecessary. Because we conclude that the
plaintiff’s claims are not barred by either doctrine, we
address each in turn.
I
RES JUDICATA
The defendant first claims that the plaintiff’s claims
in this action are barred by the doctrine of res judicata.
Specifically, the defendant claims that the plaintiff
could have filed a counterclaim in the arbitration pro-
ceeding, and thus could have had its present claims
decided therein. The defendant also claims that the
arbitrator’s award would be nullified by a judgment in
favor of the plaintiff on its claims in this case. We are
not persuaded.
Section 22 of the Restatement (Second) of Judg-
ments, which we follow, provides:7
‘‘(1) Where the defendant may interpose a claim as
a counterclaim but he fails to do so, he is not thereby
precluded from subsequently maintaining an action on
that claim, except as stated in Subsection (2).
‘‘(2) A defendant who may interpose a claim as a
counterclaim in an action but fails to do so is precluded,
after the rendition of judgment in that action, from
maintaining an action on the claim if:
‘‘(a) The counterclaim is required to be interposed by
a compulsory counterclaim statute or rule of court, or
‘‘(b) The relationship between the counterclaim and
the plaintiff’s claim is such that successful prosecution
of the second action would nullify the initial judgment
or would impair rights established in the initial action.’’
1 Restatement (Second), Judgments § 22 (1982).
Thus, the defendant’s argument regarding the plain-
tiff’s failure to assert a counterclaim in the arbitration
proceeding would be valid in a compulsory counter-
claim jurisdiction. Connecticut, however, is a permis-
sive counterclaim jurisdiction. See Practice Book § 10-
10;8 Gattoni v. Zaccaro, 52 Conn. App. 274, 280, 727
A.2d 706 (1999); Hansted v. Safeco Ins. Co. of America,
19 Conn. App. 515, 520 n.4, 562 A.2d 1148, cert. denied,
212 Conn. 819, 565 A.2d 540 (1989). In Connecticut, the
fact that a defendant in a prior action did not assert a
related cause of action in that prior action does not
foreclose the defendant from asserting those claims in
a new action filed in the future.9 As explained in the
commentary to the Restatement: ‘‘The justification for
the existence of such an option is that the defendant
should not be required to assert his claim in the forum
or the proceeding chosen by the plaintiff but should be
allowed to bring suit at a time and place of his own
selection.’’ 1 Restatement (Second), supra, § 22, com-
ment (a), pp. 186–87. Thus, the plaintiff is not barred
from asserting its claims in this action by virtue of its
failure to interpose those claims in the arbitration pro-
ceeding.
The defendant also claims that the successful prose-
cution of the plaintiff’s claims in this case would nullify
the arbitrator’s determination that the defendant had
fully performed its contractual obligations. Although
the arbitrator concluded, albeit on the basis of a stipula-
tion by the plaintiff for purposes of the arbitration, that
the defendant had fulfilled its contractual obligations,
he made no determination as to the quality of the work
performed by the defendant under the contract. In other
words, a determination by this court that the work
performed by the defendant was deficient would not
be contrary to the arbitrator’s determination that the
defendant had completed such work. The arbitration
award was based on entirely different claims than those
asserted by the plaintiff in this action. A judgment in
favor of the plaintiff herein would not nullify the arbitra-
tion award. We therefore conclude that the court prop-
erly determined that the plaintiff’s claims are not barred
by the doctrine of res judicata.
II
COLLATERAL ESTOPPEL
The defendant also claims that the plaintiff’s claims
in this action are barred by the doctrine of collateral
estoppel because the arbitrator previously ruled that it
had ‘‘under[taken] the performance of its obligations
under the contract in strict and full accordance with
the plans, specifications, and general and special condi-
tions of the contract and amendments thereto . . . .’’
The defendant claims, as it did at trial, that the plaintiff’s
claims in this action were actually litigated or necessar-
ily determined in the arbitration proceeding. We
disagree.
As previously noted, ‘‘[f]or an issue to be subject to
collateral estoppel, it must have been fully and fairly
litigated in the first action. It also must have been actu-
ally decided and the decision must have been necessary
to the judgment. . . .
‘‘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. . . . If an issue has been determined, but the
judgment is not dependent [on] the determination of the
issue, the parties may relitigate the issue in a subsequent
action. Findings on nonessential issues usually have the
characteristics of dicta.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Lyon v.
Jones, 291 Conn. 384, 406, 968 A.2d 416 (2009).
In rejecting the defendant’s claim of collateral estop-
pel, the trial court first observed as follows: ‘‘[The defen-
dant]’s protestations that the issue of its contractual
performance was ‘actually litigated’ in the arbitration
. . . are stated in conclusory fashion, unsupported by
any references to the arbitration record and contra-
dicted by the arbitrator’s decision. In the only reference
to that issue in his decision, the arbitrator makes it
clear that he is relying solely on the state’s stipulation
to [the defendant]’s performance of the contract and
not on any evidence introduced before him. . . .
‘‘Moreover, three decisions made by the arbitrator
demonstrate that the issue of [the defendant]’s perfor-
mance was not litigated in the arbitration. First is his
denial of [the defendant]’s request to amend its com-
plaint to seek a declaration that it had performed in
accordance with the contract and ‘free from defect.’
. . . Second, he denied a request by [the defendant] to
inspect York to show that ‘[the plaintiff’s] allegations
of defective and incomplete work have no merit’ . . .
because he did not believe that ‘the evidence that is
proposed to be developed by way of the inspection
would be material or relevant to the issues that I must
decide,’ in view of the [plaintiff]’s stipulation for pur-
poses of the arbitration that [the defendant] had per-
formed in accordance with the contract. . . . Third, he
specifically declined to consider certain performance
related claims which the [plaintiff] attempted to raise
in its posthearing brief; viz., that [the defendant] had
failed to pay prevailing wages on the project, to provide
a ten year warranty and to deliver as-built docu-
ments. . . .
‘‘Much of [the defendant]’s argument that principles
of collateral estoppel should bar this action by the
[plaintiff] rests on allegations that the [plaintiff] could
have or should have raised the issue of defective con-
struction as a defense in the arbitration. As the
Restatement puts it, however, ‘[a]n issue is not actually
litigated if the defendant might have interposed it as
an affirmative defense but failed to do so; nor is it
actually litigated if it is raised by a material allegation of
a party’s pleading but is admitted . . . in a responsive
pleading; nor is it actually litigated if it is raised in an
allegation by one party and is admitted by the other
before evidence on the issue is adduced at trial . . . .’
1 Restatement (Second), supra, § 27, comment (e), pp.
256–57.’’ (Citations omitted.)
On the basis of the foregoing observations and analy-
sis, the court concluded that the plaintiff’s allegations
of defective construction by the defendant were not
fully and fairly litigated in the arbitration proceeding.
We agree with the trial court’s conclusion, and we fur-
ther conclude that a determination that the defendant’s
work under contract at the York Correctional Institu-
tion was free from defects was not necessary to the
arbitrator’s decision that it was entitled to payment of
the retainage allegedly due and owing to it under the
contract. The court thus properly determined that the
plaintiff’s claims are not barred by the doctrine of collat-
eral estoppel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In addition to the named defendant, whom, for convenience, we refer
herein to as the defendant, also named as defendants in the underlying
action were: Tishman Construction Corporation of New England; HDR Archi-
tecture, P.C.; Maguire Group, Inc.; Stratton Company, Inc.; J.S. Nasin Com-
pany; Independent Materials Testing Laboratories, Inc.; Testing Labs, Inc.;
Naek Construction Company, Inc.; B.W. Dexter II, Inc.; Jolley Concrete,
Inc.; American Masons and Building Supply Company; Travelers Casualty
and Surety Company; American Insurance Company; and Employers Insur-
ance of Wausau, A Mutual Company. Only the named defendant was a party
to the plaintiff’s previous application for a prejudgment remedy, which we
will discuss, and only the named defendant is a party to this appeal.
2
Although the denial of a motion for summary judgment ordinarily is not
appealable because it does not conclude the action, the denial of a motion
for summary judgment predicated on a claim of res judicata or collateral
estoppel has been deemed to constitute a final judgment for purposes of
appeal. Santorso v. Bristol Hospital, 308 Conn. 338, 346 n.7, 63 A.3d 940
(2013).
3
General Statutes § 4-61 waives the state’s sovereign immunity with
respect to certain claims arising under public works contracts and provides
in relevant part: ‘‘(a) Any person, firm or corporation which has entered
into a contract with the state, acting through any of its departments, commis-
sions or other agencies, for the design, construction, construction manage-
ment, repair or alteration of any highway, bridge, building or other public
works of the state or any political subdivision of the state may, in the event
of any disputed claims under such contract or claims arising out of the
awarding of a contract by the Commissioner of Administrative Services,
bring an action against the state to the superior court for the judicial district
of Hartford for the purpose of having such claims determined . . . .
‘‘(b) As an alternative to the procedure provided in subsection (a) of this
section, any such person, firm or corporation having a claim under said
subsection (a) may submit a demand for arbitration of such claim or claims
for determination under (1) the rules of any dispute resolution entity,
approved by such person, firm or corporation and the agency head and (2)
the provisions of subsections (b) to (e), inclusive, of this section, except
that if the parties cannot agree upon a dispute resolution entity, the rules of
the American Arbitration Association and the provisions of said subsections
shall apply. The provisions of this subsection shall not apply to claims under
a contract unless notice of each such claim and the factual bases of each
claim has been given in writing to the agency head of the department
administering the contract within the time period which commences with
the execution of the contract or the authorized commencement of work on
the contract project, whichever is earlier, and which ends two years after
the acceptance of the work by the agency head evidenced by a certificate
of acceptance issued to the contractor or two years after the termination
of the contract, whichever is earlier. A demand for arbitration of any such
claim shall include the amount of damages and the alleged facts and contrac-
tual or statutory provisions which form the basis of the claim. No action
on a claim under such contract shall be brought under this subsection except
within the period which commences with the execution of the contract or
the authorized commencement of work on the contract project, whichever
is earlier, and which ends three years after the acceptance of the work by
the agency head of the department administering the contract evidenced
by a certificate of acceptance issued to the contractor or three years after
the termination of the contract, whichever is earlier. Issuance of such certifi-
cate of acceptance shall not be a condition precedent to the commencement
of any action. . . .’’
4
The plaintiff subsequently withdrew its application for a prejudgment
remedy.
5
The defendant appealed from the court’s decision overruling its objection
to the plaintiff’s application for a prejudgment remedy, but that appeal was
dismissed for lack of a final judgment. State v. Bacon Construction Co.,
300 Conn. 476, 478, 15 A.3d 147 (2011).
6
The defendant also challenges on appeal the trial court’s view of the
earlier decision on its objection to the plaintiff’s application for a prejudg-
ment remedy as the law of the case. ‘‘The law of the case doctrine provides
that [w]here a matter has previously been ruled upon interlocutorily, the
court in a subsequent proceeding in the case may treat that decision as the
law of the case, if it is of the opinion that the issue was correctly decided,
in the absence of some new or overriding circumstance.’’ (Internal quotation
marks omitted.) Perugini v. Giuliano, 148 Conn. App. 861, 879–80, 89 A.3d
358 (2014). In arguing that the court improperly applied the law of the
case doctrine in denying its motion for summary judgment, the defendant
challenges the correctness of the earlier decision rejecting its claims of
preclusion. The inquiry of whether the issue was correctly decided when
it was initially reviewed by the prejudgment remedy court, in the context
of an examination of the law of the case doctrine, is subsumed by our
resolution of the defendant’s principal claims on appeal.
7
See, e.g., Lighthouse Landings, Inc. v. Connecticut Light & Power Co.,
300 Conn. 325, 350, 15 A.3d 601 (2011).
8
Practice Book § 10-10 provides: ‘‘Supplemental pleadings showing mat-
ters arising since the original pleading may be filed in actions for equitable
relief by either party. In any action for legal or equitable relief, any defendant
may file counterclaims against any plaintiff and cross claims against any
codefendant provided that each such counterclaim and cross claim arises
out of the transaction or one of the transactions which is the subject of the
plaintiff’s complaint; and if necessary, additional parties may be summoned
in to answer any such counterclaim or cross claim. A defendant may also
file a counterclaim or cross claim under this section against any other party
to the action for the purpose of establishing that party’s liability to the
defendant for all or part of the plaintiff’s claim against that defendant.’’
9
To the extent that the defendant asks this court to apply the common-
law compulsory counterclaim rule, we could not, even if we were inclined
to do so, because we are constrained by the rules of practice adopted by
the Superior Court judges of this state and are without authority to make
changes to those rules. State v. DeJesus, 288 Conn. 418, 507–508, 953 A.2d
45 (2008) (Katz, J., dissenting).