Fischer v. Lawyers Title Corp. ( 2022 )

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DAB THREE, LLC, ET AL. v. SANDRA FITZPATRICK
ALLEN FISCHER ET AL. v. LAWYERS TITLE
CORPORATION ET AL.
(AC 44393)
Prescott, Suarez and Bishop, Js.
Syllabus
The plaintiff property owner sought to recover damages in two actions for,
inter alia, fraudulent concealment of cause of action pursuant to statute
(§ 52-295), claiming that various defendant insurance brokers and agen-
cies were liable for a $2 million judgment rendered in a prior action by
intentionally misrepresenting and fraudulently concealing, inter alia,
which of the defendants was the party financially responsible to the
plaintiff. In the prior action, the plaintiff claimed that the defendants
failed to procure adequate insurance coverage with respect to the plain-
tiff’s property, resulting in expenditures by the plaintiff to remediate
the property following the discovery of environmental contamination.
Although the plaintiff secured the judgment against L Co. in the previous
action, he had been unable to collect the judgment and, thereafter,
filed the present two actions, claiming that the defendants withheld the
identity of the individual or entity that brokered the insurance policy
to force the plaintiff to attempt to obtain a judgment against a defendant
without assets. After the present actions were consolidated, the trial
court granted the defendants’ motions for summary judgment on the
ground that the plaintiff’s claims were barred by the doctrine of res
judicata. On the plaintiff’s appeal to this court, held that the trial court
did not err in concluding that the plaintiff’s claims in the present actions
were barred by the doctrine of res judicata: the prior action was rendered
on the merits in favor of the defendants, the parties to both the prior
action and the two present actions were the same or in privity, the
plaintiff had ample opportunity to discover and to litigate which of
the defendants was liable for the procurement of inadequate insurance
coverage in the prior action, and actually did so and secured a judgment,
and the same underlying claim was at issue in the prior action and the
present actions; as the claims in all the actions stemmed from the
defendants’ alleged procurement of insufficient insurance coverage and
were contingent on the defendants’ conduct dating back to the original
allegations, the present actions sought the same redress, arose from the
same common nucleus of facts, and ultimately turned on which of the
defendants purportedly procured the policy, both the prior and the
present actions formed a convenient trial unit that conformed to the
parties’ expectations, and, although the legal claims in the prior action
were distinct from the present actions, this did not preclude the applica-
tion of the doctrine of res judicata, and the plaintiff’s attempt to relitigate
which of the defendants was liable for his lack of insurance coverage
was merely a veiled attempt to collect his judgment from the other parties
against which he already had litigated his claim and lost; moreover, the
plaintiff failed to demonstrate that the discovery of new evidence had
hindered his ability to litigate which of the defendants was liable for
their procurement of inadequate insurance in the prior action, as the
allegedly concealed facts were discovered during the proceedings in
the prior action; furthermore, the doctrine of res judicata prevented
the plaintiff’s attempt to relitigate claims on the basis of purportedly
new evidence.
Argued May 10—officially released October 18, 2022
Procedural History
Action in each case to recover damages for, inter
alia, fraudulent concealment, brought to the Superior
Court in the judicial district of Fairfield, where the cases
were consolidated; thereafter, the court, Hon. Dale W.
Radcliffe, judge trial referee, granted the defendant’s
motion for summary judgment in the first action and
the defendant Lawyers Title Insurance Corporation’s
motion for summary judgment in the second action and
rendered judgments thereon, from which the plaintiff
Alan Fischer appealed to this court. Affirmed.
Laurence V. Parnoff, with whom was Laurence V.
Parnoff, Jr., for the appellant (plaintiff Alan Fischer).
Marc J. Herman, with whom was Jason A. Buchs-
baum, and, on the brief, Jonathan S. Bowman, for the
appellees (defendants Sandra Fitzpatrick and Lawyers
Title Insurance Corporation).
Opinion
SUAREZ, J. The plaintiff Alan Fischer appeals from
the summary judgments rendered by the trial court in
favor of the defendants Lawyers Title Insurance Corpo-
ration (LTIC) and Sandra Fitzpatrick on the plaintiff’s
complaints filed in two actions.1 On appeal, the plaintiff
claims that the court incorrectly determined that both
of his complaints were barred by the doctrine of res
judicata.2 We disagree and, accordingly, affirm the judg-
ments of the court.
The record, viewed in the light most favorable to the
plaintiff as the nonmoving party, reveals the following
relevant facts and procedural history.3 The plaintiff was
the sole owner, designee, managing partner, and
assignee of DAB Three, LLC (DAB Three), and he was
the sole person acting through and for DAB Three. In
August, 2006, DAB Three commenced a prior action
(2006 action) against the following seven defendants:
LTIC, Fitzpatrick, LandAmerica Financial Group, Inc.
(LFG); LandAmerica Environmental Insurance Service
Agency, Inc. (LEISA); Lawyers Title Corporation (LTC);
Lawyers Title Environmental Insurance Service
Agency, Inc. (LTEISA); and Debra Moser (collectively,
2006 defendants). See DAB Three, LLC v. LandAmerica
Financial Group, Inc., Superior Court, judicial district
of Fairfield, Docket No. CV-XX-XXXXXXX-S.
In the operative complaint in the 2006 action, DAB
Three alleged that the 2006 defendants were insurance
brokers and/or agents. DAB Three further alleged that
it had contracted with the 2006 defendants to procure
for DAB Three ‘‘a pollution legal liability policy with
full and complete coverage for all environmental condi-
tions’’ with respect to a parcel of real property located
at 60 High Meadow Road in Brookfield (property). In
August, 2000, Fitzpatrick and Moser ‘‘procured’’ and
the other 2006 defendants ‘‘provided,’’ a pollution legal
liability policy for the property (policy) from American
International Specialty Lines Insurance Company (AIS-
LIC). DAB Three purchased the property in August,
2000, and later discovered that ‘‘previously unknown
solid waste’’ was buried on the property. DAB Three
alleged that, in June, 2001, it submitted a claim for
coverage under the policy to AISLIC for the cost to
remediate the buried waste at the property, but AISLIC
denied that claim on the ground that the loss was not
covered by the policy.4 The 2006 defendants’ failure to
procure adequate insurance coverage for the property
resulted in DAB Three’s expenditure of $943,000 to
remediate the property. On the basis of these allega-
tions, DAB Three asserted two counts against the 2006
defendants: breach of contract and violation of the Con-
necticut Unfair Trade Practices Act (CUTPA), General
Statutes § 42-110a et seq.
Over the course of the next decade, the court issued
a series of rulings fully resolving the 2006 action in
favor of the 2006 defendants. Particularly, in March,
2008, the court rendered summary judgment in favor
of the 2006 defendants with respect to the CUTPA claim.
The court held that the CUTPA claim was barred by
the three year statute of limitations provided by General
Statutes § 42-110g (f) because the 2006 action was filed
more than three years after the procurement of the
policy in 2000 and AISLIC’s denial of the claim for
insurance coverage in 2001.5
In October, 2016, the court rendered summary judg-
ment in favor of the 2006 defendants, except for
LTEISA, with respect to the breach of contract claim.
The court held that there was no genuine issue of mate-
rial fact that LTEISA is the only entity that DAB Three
contracted with to procure environmental insurance
coverage with respect to the property. The court further
held that there was a genuine issue of material fact as
to whether LTEISA brokered the policy in accordance
with DAB Three’s requested specifications. Thus, only
DAB Three’s breach of contract claim against LTEISA
survived summary judgment.
In November, 2016, counsel for the 2006 defendants
filed a motion for permission to withdraw its appear-
ance for LTEISA on the ground that ‘‘LTEISA no longer
exists’’ because it had changed its name to LEISA in
1999. In December, 2016, the court granted the motion
for permission to withdraw. Later in December, 2016,
the court issued an order dismissing the 2006 action as
to LTEISA6 ‘‘only in light of the plaintiff’s counsel’s
representation on the record that it was not going for-
ward with the trial as to that defendant.’’
DAB Three then filed an appeal to this court challeng-
ing only some of the court’s orders in the 2006 action.7
See DAB Three, LLC v. LandAmerica Financial Group,
Inc., 183 Conn. App. 307, 310, 192 A.3d 510, cert. denied,
330 Conn. 921, 194 A.3d 289 (2018). In that appeal,
DAB Three claimed, inter alia, that the court incorrectly
rendered summary judgment in favor of LEISA, Fitzpa-
trick, and Moser on the breach of contract claim. Id.,
309. DAB Three did not challenge on appeal the sum-
mary judgment rendered in favor of the 2006 defendants
on its CUTPA claim and the summary judgment ren-
dered in favor of LTIC on its breach of contract claim.
Id., 309 n.1, 310.8
This court affirmed in part and reversed in part the
summary judgment rendered by the court in the 2006
action. Id., 309. First, this court concluded that the trial
court improperly rendered summary judgment in favor
of LEISA because ‘‘[t]he record is clear that LEISA
is the proper party against whom [DAB Three] may
maintain a claim for breach of contract, and the [2006]
defendants have so conceded.’’ Id., 317–18. This court
held that, despite the 2006 defendants’ representations
to the trial court that LTESIA was the only party that
brokered the policy,9 they had conceded at oral argu-
ment before this court that ‘‘LEISA is the entity with
which the plaintiff had entered into a contract to pro-
vide the insurance policy at issue.’’ Id., 316. Second, this
court concluded that the trial court properly rendered
summary judgment in favor of Fitzpatrick and Moser
on DAB Three’s breach of contract claim. Id., 318–19.
This court reasoned that, although Fitzpatrick and
Moser ‘‘may be held liable for torts committed by them
when acting on behalf of their principals, [DAB Three]
has not alleged any tort claims against Fitzpatrick and
Moser. Its sole claim against Fitzpatrick and Moser was
for breach of contract. Because neither agent was a
party to that contract, they cannot be held liable for
its alleged breach.’’ Id., 319. Consequently, this court
remanded the case to the trial court for further proceed-
ings on the breach of contract claim against LEISA. Id.On remand, in October, 2018, counsel for the defen-
dants filed a motion for permission to withdraw their
appearance for LEISA on the ground that LEISA had
discharged the 2006 defendants’ counsel. The discharge
letter attached to the motion to withdraw explained
that LTIC had retained the same counsel to represent
all of the 2006 defendants, and that ‘‘there [was] no
longer an interest in continuing to defend the interests
of LEISA’’ because the only entity purchased out of
LFG’s bankruptcy action was LTIC. See footnote 5 of
this opinion. On November 5, 2018, the court granted
this motion to withdraw.
On January 8, 2019, the trial against LEISA was set
to proceed, however, LEISA failed to retain counsel,
file an appearance, and otherwise appear at trial. On
January 8, 2019, the court issued an order defaulting
LEISA for its failure to appear at trial, thereby resolving
the issue of liability for DAB Three against LEISA. On
January 8 and 9, 2019, the issue of damages on DAB
Three’s breach of contract claim against LEISA was
tried to a jury, which returned a verdict in favor of DAB
Three in the amount of $975,000. On January 24, 2019,
the court awarded offer of judgment interest in the
amount of $1,073,835.62 and offer of judgment attor-
ney’s fees in the amount of $350, resulting in a total
judgment against LEISA in the amount of $2,049,185.62.
The plaintiff has been unable to collect this judgment
against LEISA.
In March and April, 2019, the plaintiff commenced
the two actions that underlie this appeal (2019 actions).
The first action was commenced by DAB Three and the
plaintiff against only Fitzpatrick. The second action was
commenced by DAB Three and the plaintiff against
LTC, LTIC, LTEISA, and LEISA. In June, 2019, the court
consolidated the 2019 actions. See footnote 1 of this
opinion.
The allegations of the operative complaints in the
2019 actions are congruent. The gravamen of the 2019
actions is that the defendants are liable for the
$2,049,185.62 judgment rendered in the 2006 action
because the defendants failed to procure adequate
insurance coverage with respect to the property. The
plaintiff alleges that, prior to and throughout the 2006
action, the defendants intentionally misrepresented and
fraudulently concealed which of the 2006 defendants
was (1) the broker of the policy, (2) Fitzpatrick’s
employer, and (3) the party financially liable to the
plaintiff. The plaintiff alleges that the defendants ‘‘with-
held’’ the identity of the individual or entity that brok-
ered the policy so as to force DAB Three ‘‘to try the
case and obtain a judgment in the [2006 action] against
a defendant purportedly without assets.’’ Both of the
complaints in the 2019 actions assert three claims: (1)
fraudulent concealment pursuant to General Statutes
§ 52-595, (2) common-law fraud, and (3) violation of
CUTPA.
On March 3, 2020, the defendants moved for summary
judgment in the 2019 actions on at least eight different
grounds, including res judicata. In its memoranda of
law in support of the motions, the defendants argued
that res judicata barred all of the plaintiff’s claims in
each action because, inter alia: (1) the 2006 action
resulted in a judgment on the merits; (2) the parties in
the 2019 actions and the 2006 action are the same;
(3) the plaintiff had the opportunity to litigate fully its
claims in the 2006 action; and (4) the same claim is
at issue in the 2006 action and the 2019 actions. On
November 2, 2020, the plaintiff filed an opposition in
which he contended, in part, that there were genuine
issues of material fact precluding the application of the
doctrine of res judicata. In support of their positions, the
plaintiff and the defendants submitted several hundred
pages of exhibits generally comprising certain filings
from the 2006 action, the appeal from the 2006 action,
and the 2019 actions.
On November 9, 2020, the court heard argument on
the defendants’ motions for summary judgment. At the
conclusion of the hearing, the court issued an oral ruling
granting both motions for summary judgment and over-
ruling the plaintiff’s objections thereto.10 This appeal
followed.
We first set forth the standard of review and legal
principles relevant to our resolution of this appeal. The
question of whether the doctrine of res judicata applies
to bar the plaintiff’s claims is a question of law over
which we employ plenary review. See Girolametti v.
Michael Horton Associates, Inc., 332 Conn. 67, 75, 208
A.3d 1223 (2019). Likewise, our review of the court’s
decision to grant the defendants’ motions for summary
judgment is plenary. See Grenier v. Commissioner of
Transportation, 306 Conn. 523, 535, 51 A.3d 367 (2012).
Summary judgment is appropriate ‘‘if the pleadings, affi-
davits 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.’’
Practice Book § 17-49.
‘‘The doctrine of res judicata provides that [a] valid,
final judgment rendered on the merits by a court of
competent jurisdiction is an absolute bar to a subse-
quent action between the same parties . . . upon the
same claim or demand. . . . Res judicata prevents a
litigant from reasserting a claim that has already been
decided on the merits. . . . Under claim preclusion
analysis, a claim—that is, a cause of action—includes
all rights of the plaintiff to remedies against the defen-
dant with respect to all or any part of the transaction,
or series of connected transactions, out of which the
action arose. . . . Moreover, claim preclusion pre-
vents the pursuit of any claims relating to the cause of
action which were actually made or might have been
made. . . . [T]he essential concept of the modern rule
of claim preclusion is that a judgment against [the]
plaintiff is preclusive not simply when it is ‘on the mer-
its’ but when the procedure in the first action afforded
[the] plaintiff a fair opportunity to get to the merits.
. . . Stated another way, res judicata is based on the
public policy that a party should not be able to relitigate
a matter which it already has had an opportunity to
litigate. . . . [W]here a party has fully and fairly liti-
gated his claims, he may be barred from future actions
on matters not raised in the prior proceeding.’’ (Cita-
tions omitted; emphasis in original; internal quotation
marks omitted.) Weiss v. Weiss, 297 Conn. 446, 459–60,
998 A.2d 766 (2010).
‘‘[A]lthough parties are not required to resolve all
disputes during a . . . proceeding, when a party had
the opportunity to raise the claim and the . . . pro-
ceeding provided the proper forum for the resolution
of that claim, res judicata may bar litigation of a subse-
quent action.’’ (Emphasis in original; internal quotation
marks omitted.) Fisk v. BL Cos., 185 Conn. App. 671,
680, 198 A.3d 160 (2018). ‘‘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 evi-
dence 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 in original; internal quotation marks omit-
ted.) Girolametti v. Michael Horton Associates, Inc.,
supra, 332 Conn. 75.
On appeal, the plaintiff does not appear to dispute
that the first two elements of res judicata are satisfied.11
Rather, the plaintiff argues that the third element is not
satisfied because he did not have an adequate opportu-
nity in the 2006 action to litigate which of the defendants
is liable for the procurement of inadequate insurance
coverage as the defendants concealed that fact. He fur-
ther argues that the fourth element is not satisfied
because the ‘‘sole claim decided on the merits [in the
2006 action] was the breach of contract liability for the
policy [LEISA] sold the plaintiff.’’
We first address the third element, which requires
that there was an adequate opportunity to litigate the
matter fully in the prior action. In the present case, DAB
Three and the plaintiff have had an ample opportunity
during the ten year pendency of the 2006 action, the
appeal therefrom, and on remand, to discover and liti-
gate which of the defendants were liable for the pur-
ported lack of insurance coverage with respect to the
property. Not only did DAB Three have the opportunity
to litigate which of the defendants were liable, but DAB
Three actually litigated its claims against the defen-
dants and was not successful. In the 2006 action, DAB
Three asserted breach of contract claims and CUTPA
claims against the defendants, asserting that they were
liable for their failure to procure adequate insurance
coverage for the property. The court in the 2006 action
held that the CUTPA claim was time barred and that
there was no genuine issue of material fact that the
defendants did not contract to procure the subject pol-
icy. On appeal from the 2006 action, DAB Three did
not challenge the court’s summary judgment in favor
of the defendants as to the CUTPA claim and did not
challenge the court’s summary judgment in favor of
LTIC as to the breach of contract claim. DAB Three,
LLC v. LandAmerica Financial Group, Inc., supra,
183 Conn. App. 309 n.1, 310. In that appeal, this court
affirmed the summary judgment rendered in favor of
Fitzpatrick on the breach of contract claim. Id., 319.
Nevertheless, the plaintiff argues that he did not have
an adequate opportunity to litigate his claims against
the defendants in the 2006 action because of two facts
that were disclosed in the motions for permission to
withdraw as counsel filed in the 2006 action. First, the
plaintiff states that he learned from the November, 2016
motion for permission to withdraw that LTEISA no
longer existed because it changed its name to LEISA
in 1999. Second, he states that he learned from the
October, 2018 motion for permission to withdraw that
LTIC had retained one firm to represent all of the defen-
dants, which ‘‘called into question for the first time’’
which of the defendants were ‘‘solvent.’’12
We reject the plaintiff’s argument because he has
failed to demonstrate that his discovery of these facts
hindered his ability to litigate which of the defendants
are liable for their procurement of inadequate insur-
ance. There was nothing preventing the plaintiff from
discovering or litigating in the 2006 action whether
LTEISA existed as an entity or whether LTIC had ade-
quate funding to satisfy a judgment in the 2006 action.
Primarily, both of these ‘‘concealed’’ facts were discov-
ered during the 2006 action. The plaintiff thus had the
ability to seek reconsideration, to seek discovery, to
amend the pleadings, to move to open the judgment,
or to appeal on the basis of these facts. See, e.g., Powell
v. Infinity Ins. Co., 282 Conn. 594, 608, 922 A.2d 1073(2007) (plaintiffs had adequate opportunity to litigate
claims because they could have amended complaint to
include bad faith allegations that arose after complaint
was filed); Fisk v. BL Cos., supra, 185 Conn. App. 680–81
(plaintiff had adequate opportunity to litigate claims
because he failed to amend pleadings to include claims
that eventually were raised in second action). Instead
of taking action to raise its fraud claims in the 2006
action, DAB Three declined to try its action against
LTEISA and, after its partially successful appeal,
obtained a $2 million judgment against LEISA. After
obtaining its $2 million judgment, the plaintiff com-
menced the 2019 actions asserting the fraud claims that
he could have made in the 2006 action. Here, ‘‘[i]n effect,
the plaintiff is seeking to relitigate a single claim under
a new theory in order to obtain an additional remedy,
and this he may not do.’’ Duhaime v. American Reserve
Life Ins. Co., 200 Conn. 360, 366, 511 A.2d 333 (1986).
Moreover, the doctrine of res judicata prevents the
plaintiff’s attempt to relitigate claims on the basis of
his purportedly new evidence. See, e.g., Powell v. Infin-
ity Ins. Co., supra, 607–608 (res judicata barred second
action supported by ‘‘additional evidence’’ of bad faith
litigation conduct discovered in first action); Couloute
v. Board of Education, 204 Conn. App. 120, 134–35, 252
A.3d 420 (res judicata barred second action supported
by ‘‘new information’’ not available during first action
because ‘‘Connecticut law does not allow for the plain-
tiffs to circumvent the doctrine of res judicata by the
reassertion of the same claims even after new informa-
tion or evidence has been discovered’’), cert. denied,
336 Conn. 946, 250 A.3d 694 (2021). Additionally, neither
of the allegedly concealed facts has any bearing on the
plaintiff’s ability to litigate against the defendants in
the first instance. The facts as to whether LTEISA
existed and whether LTIC may have funds to satisfy
the judgment are immaterial to prove whether the
defendants are liable for their inadequate procurement
of insurance coverage. See, e.g., Carabetta Organiza-
tion, Ltd. v. Meriden, 196 Conn. App. 147, 154–55, 229
A.3d 124 (res judicata barred second action founded
on ‘‘ ‘different types of conduct by different defendants
and the different effects of that conduct’ ’’), cert. denied,
335 Conn. 940, 237 A.3d 729 (2020). Consequently, we
conclude that the third element is satisfied.
We next turn to the fourth element, which requires
that the same underlying claim must be at issue. Con-
necticut courts apply the transactional test to determine
whether the same claim was at issue in both actions.
‘‘Under the transactional test, res judicata extinguishes
all rights of the plaintiff to remedies against the defen-
dant 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 constitute 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 conve-
nient trial unit, and whether their treatment as a unit
conforms to the parties’ expectations or business under-
standing or usage. . . . [E]ven though a single group
of facts may give rise to rights for several different
kinds of relief, it is still a single cause of action. . . .
In applying the transactional test, we compare the com-
plaint in the [present] action with the pleadings and
the judgment in the earlier action.’’ (Citations omitted;
internal quotation marks omitted.) Wheeler v. Beachcroft,
LLC, 320 Conn. 146, 159–60, 129 A.3d 677 (2016).
Applying the transactional test, we conclude that the
same underlying claim is at issue in the 2006 action and
the 2019 actions. The allegations are related in time
because, although the 2006 action focused on the defen-
dants’ conduct between 2000 and 2006, whereas the
2019 actions are founded on allegations spanning 2000
through at least 2019, the plaintiff repeatedly confirms
in his briefs on appeal that the 2019 actions are contin-
gent on the defendants’ conduct dating back to 2000.
As for space, origin, and motivation, the 2006 action
and the 2019 actions stem from the defendants’ alleged
procurement of insufficient insurance coverage. The
2006 action and the 2019 actions seek the same redress,
specifically the $2 million in damages that the plaintiff
allegedly sustained due to the defendants’ failure to
procure adequate insurance coverage for the property.
The 2006 action and the 2019 actions arise from the
same common nucleus of facts, particularly the actions
and inactions taken by the defendants in connection
with the alleged procurement of the policy. See Sum-
mitwood Development, LLC v. Roberts, 130 Conn. App.
792, 804, 25 A.3d 721 (res judicata barred second action
alleging fraudulent conduct because claims arose from
same facts and sought redress for same injury stemming
‘‘from the same series of transactions, namely, the nego-
tiation, execution, review and performance, or lack
thereof, of the sale and leaseback agreement’’), cert.
denied, 302 Conn. 942, 29 A.3d 467 (2011), cert. denied,
565 U.S. 1260, 132 S. Ct. 1745, 182 L. Ed. 2d 530 (2012).
In short, the 2006 action and the 2019 actions ultimately
turn on which of the defendants purportedly procured
the policy. See, e.g., Powell v. Infinity Ins. Co., supra,282 Conn. 605 (res judicata barred second action
because both actions ‘‘turn essentially on the defen-
dant’s refusal to pay in accordance with the terms of
[an] uninsured motorist policy’’).
Additionally, both cases form a convenient trial unit
that conforms to the parties’ expectations. There would
have been considerable overlap of witnesses and proof
relevant to the 2006 action and the 2019 actions. Both
trials would involve the presentation of the same exhib-
its and witnesses, specifically including the policy, the
correspondence and discussions among the parties
regarding the policy, the requests for coverage by the
plaintiff and DAB Three, and the damages sustained.
See, e.g., Fernandez v. Mac Motors, Inc., 205 Conn.
App. 669, 676–77, 259 A.3d 1239 (2021) (res judicata
barred second action where ‘‘both actions constituted a
single transaction that would have formed a convenient
trial unit’’ as both actions shared same parties and ‘‘cen-
tral allegation’’). Much of the evidence probative to
prove which defendant is liable for failing to procure
adequate coverage is the same in the 2006 action and
the 2019 actions.
The fact that the legal claims in the 2006 action
(breach of contract and CUTPA) are distinct from the
2019 actions (fraudulent concealment, common-law
fraud, and CUTPA) does not preclude the application
of res judicata. See Duhaime v. American Reserve Life
Ins. Co., supra, 200 Conn. 364–65 (res judicata extin-
guishes claim despite fact that ‘‘ ‘the plaintiff is prepared
in the second action (1) [t]o present evidence or
grounds or theories of the case not presented in the
first action, or (2) [t]o seek remedies or forms of relief
not demanded in the first action’ ’’). Indeed, a CUTPA
claim was asserted in the 2006 action and in the 2019
actions, and the fact that the 2019 actions additionally
assert legal claims of fraudulent concealment and com-
mon-law fraud is of no moment. See, e.g., Smith v. BL
Cos., 185 Conn. App. 656, 670, 198 A.3d 150 (2018)
(res judicata barred second action despite fact that it
asserted different legal theories); Buck v. Berlin, 163
Conn. App. 282, 293, 135 A.3d 1237 (applying res judi-
cata where ‘‘virtually indistinguishable’’ factual circum-
stances gave rise to distinct legal theories), cert. denied,
321 Conn. 922, 138 A.3d 283 (2016).
Finally, this case exemplifies the policy considera-
tions supporting the doctrine of res judicata, which is
to promote ‘‘judicial economy, minimizing repetitive
litigation, preventing inconsistent judgments and pro-
viding repose to parties’’ as ‘‘balanced against ‘the com-
peting interest of the plaintiff in the vindication of a
just claim.’ ’’ Weiss v. Weiss, supra, 297 Conn. 465. The
plaintiff has had a full opportunity to vindicate his claim
and has a $2 million judgment to show for it. The plain-
tiff’s attempt to relitigate which of the defendants is
liable for his lack of insurance coverage is merely a
veiled attempt to collect his $2 million judgment from
other parties against which he already has litigated his
claim and lost. This is the precise type of action to
which the preclusive effect of the doctrine of res judi-
cata applies.
The judgments are affirmed.
In this opinion the other judges concurred.
1
There are two actions, which were consolidated, underlying this appeal:
DAB Three, LLC v. Fitzpatrick, Superior Court, judicial district of Fairfield,
Docket No. CV-XX-XXXXXXX-S, and Fischer v. Lawyers Title Corporation,
Superior Court, judicial district of Fairfield, Docket No. CV-XX-XXXXXXX-S.
Dab Three, LLC, which was an entity managed by Alan Fischer, also was
named as a plaintiff in both of the underlying actions. On July 15, 2019, the
court dismissed Dab Three, LLC’s claims in both actions for lack of subject
matter jurisdiction because DAB Three, LLC, was dissolved in December,
2017. The court’s judgments dismissing the claims of DAB Three, LLC, are
not at issue in this appeal. We refer to Alan Fischer as the plaintiff because
he is the only plaintiff participating in this appeal. We note that Fischer’s
first name has been spelled inconsistently in various court documents as
Alan, Allen and Allan.
Moreover, the complaint filed in the action assigned Docket No. CV-19-
6084901-S, also named as defendants: Lawyers Title Corporation, Lawyers
Title Environmental Insurance Service Agency, and LandAmerica Environ-
mental Insurance Service Agency. None of these entities is participating in
this appeal. Consequently, we refer to LTIC and Fitzpatrick collectively as
the defendants and individually by name where appropriate.
2
The plaintiff raises several additional claims on appeal, including that
the court incorrectly determined that (1) there were no genuine issues of
material fact as to whether the defendants engaged in fraud, LTIC was
Fitzpatrick’s employer, the defendants breached their duty of care, and
damages, (2) General Statutes § 52-595 did not toll the statutes of limitations
applicable to his claims, and (3) collateral estoppel barred both of his
complaints. In light of our conclusion that the doctrine of res judicata bars
all of the plaintiff’s claims, we need not reach any of the plaintiff’s additional
claims on appeal.
3
During the pendency of this appeal, this court granted the plaintiff’s
motion to take judicial notice of the files and decisions rendered in the
matters of DAB Three, LLC v. LandAmerica Financial Group, Inc., Superior
Court, judicial district of Fairfield, Docket No. CV-XX-XXXXXXX-S, and DAB
Three, LLC v. LandAmerica Financial Group, Inc., 183 Conn. App. 307,
192 A.3d 510, cert. denied, 330 Conn. 921, 194 A.3d 289 (2018). Accordingly,
our decision also relies on facts contained in those matters.
4
The plaintiff and DAB Three have been unsuccessful in their litigation
to obtain insurance coverage under the policy from AISLIC for these remedia-
tion costs. See, e.g., Fischer v. American Specialty Lines Ins. Co., Docket No.
3:07CV1871 (MRK), 2010 WL 2573909, *6 (D. Conn. May 14, 2010) (granting
summary judgment in favor of AISLIC on claim by plaintiff and DAB Three
that AISLIC improperly denied coverage pursuant to policy).
5
In September, 2015, the court granted LFG’s motion to dismiss in the
2006 action on the ground that it lacked subject matter jurisdiction because
LFG had filed for bankruptcy and, thus, the United States Bankruptcy Court
had exclusive jurisdiction over all of LFG’s ‘‘prepetition legal obligations.’’
The court held that DAB Three had failed to file a proof of claim in LFG’s
bankruptcy case and, consequently, DAB Three’s claim against LFG was
extinguished when LFG was granted a discharge in the bankruptcy case.
6
The court’s order stated that the 2006 action was dismissed only ‘‘as to
the defendant Lawyers Title Insurance Service Agency . . . .’’ We construe,
as do the parties in the present appeal, that the court’s dismissal of ‘‘Lawyers
Title Insurance Service Agency’’ to be a misnomer as that entity was not a
defendant. Instead, it is apparent that the court dismissed LTEISA because
that was the only remaining defendant.
7
During the pendency of the appeal from the 2006 action, on December
1, 2017, DAB Three entered into an agreement with the plaintiff whereby
DAB Three assigned all of its assets and liabilities to the plaintiff. One of
these assets assigned by Dab Three to the plaintiff was DAB Three’s ‘‘rights,
title and interest in [the 2006 action] for all its claims known and unknown,
present and future for damages and losses . . . .’’ The agreement further
affords the plaintiff ‘‘all rights, benefits and control of the [2006 action] and
for the [plaintiff] to process the [2006 action] in his name or in the name
of DAB Three . . . .’’ DAB Three was dissolved shortly after the execution
of this assignment agreement.
8
DAB Three filed an amended appeal to include a challenge to the court’s
grant of the motion for permission to withdraw appearance for LTEISA filed
by counsel for the 2006 defendants.. DAB Three, LLC v. LandAmerica
Financial Group, Inc., supra, 183 Conn. App. 312. This court dismissed
DAB Three’s amended appeal because it was rendered moot when DAB
Three ‘‘opted not to proceed to trial against LTEISA and the claims against
LTEISA were dismissed.’’ Id.9
The 2006 defendants’ memorandum of law in support of the motion for
summary judgment contended that ‘‘Defendant Lawyers Title Environmental
Insurance Service Agency (‘LEISA’) brokered and procured a pollution legal
liability insurance policy on behalf of [DAB Three] dated August 1, 2000
. . . . LEISA is listed as the sole broker on the policy. . . . LEISA only
brokered the policy. It did not issue it; the policy was issued by AISLIC. LEISA
was authorized to act as an insurance broker in the state of Connecticut at
that time. . . . None of the other [2006] defendants were authorized to act
as, and did not act as insurance brokers in the state of Connecticut at that
time and never provided services to clients, including [DAB Three], as
insurance brokers.’’ Similarly, Fitzpatrick’s affidavit submitted in support
of the motion for summary judgment used the LEISA acronym to refer to
LTEISA. The 2006 defendants’ use of the acronym LEISA to refer to the
separate entity LTEISA created some uncertainty as to whether LEISA or
LTEISA was liable on DAB Three’s breach of contract claim.
10
The only record of the court’s summary judgment decisions is the
unsigned transcript of the November 9, 2020 hearing. The plaintiff filed
requests for memoranda of decision in the 2019 actions, but the court never
acted on these requests. The plaintiff did not file with this court a notice
pursuant to Practice Book § 64-1 (b) in order to obtain a memorandum of
decision from the trial court. Thus, in the absence of a memorandum of
decision or a transcript signed by the court, the plaintiff, as the appellant,
has failed to satisfy his burden to provide this court with an adequate record
for review. See Santoro v. Santoro, 132 Conn. App. 41, 47, 31 A.3d 62 (2011).
Nevertheless, this deficiency does not preclude our consideration of the
plaintiff’s claims on appeal because ‘‘the certified transcript provides the
basis of the trial court’s decision’’; id.; and our standard of ‘‘review is plenary,
and the precise legal analysis undertaken by the trial court is not essential
to [this court’s] consideration of the issue on appeal.’’ (Internal quotation
marks omitted.) Id.Additionally, the court’s brief oral ruling does not explicitly state that it
granted the defendants’ motions for summary judgment on the ground of
res judicata. Rather, the court granted the defendants’ motions for summary
judgment on a myriad of grounds. One of those grounds was the related
doctrine of collateral estoppel, which, the court reasoned, barred the plain-
tiff’s complaints because ‘‘all of the issues in each of these files could have
been raised and could have been litigated in the underlying action and were
not.’’ See Independent Party of CT–State Central v. Merrill, 330 Conn. 681,
712, 200 A.3d 1118 (2019) (‘‘‘[a]lthough res judicata and collateral estoppel
often appear to merge into one another in practice, analytically they are
regarded as distinct’ ’’). No party on appeal discusses this discrepancy within
the court’s decision and, instead, the parties proceed on the assumption
that the court granted summary judgment on the ground of res judicata.
Consistent with the approach taken by the parties, we dispose of this
appeal on the ground of res judicata because ‘‘[i]t is axiomatic that [w]e
may affirm a proper result of the trial court for a different reason.’’ (Internal
quotation marks omitted.) Sanchez v. Commissioner of Correction, 203
Conn. App. 752, 761–62, 250 A.3d 731, cert. denied, 336 Conn. 946, 251 A.3d
77 (2021). This is particularly true in the present case as both parties briefed
the issue of res judicata before the trial court, submitted exhibits in support
of their res judicata arguments before the trial court, briefed the issue of
res judicata on appeal, and our standard of review is plenary. See id., 762
(res judicata barred petitioner’s claim, despite fact that trial court did not
rely on res judicata to dismiss petition, because parties presented evidence
and briefed issue of res judicata); Washington Mutual Bank v. Coughlin,
168 Conn. App. 278, 288–89, 145 A.3d 408 (although basis for trial court’s
decision was not clear, this court may affirm trial court’s decision on properly
raised ground because standard of review was plenary), cert. denied, 323
Conn. 939, 151 A.3d 387 (2016); State v. Martin M., 143 Conn. App. 140,
151–54, 70 A.3d 135 (doctrine of res judicata barred defendant’s claims,
despite fact that res judicata was not raised particularly before trial court,
because standard of review was plenary, parties had opportunity to brief
issue, record was adequate for review, and there was no prejudice to parties),
cert. denied, 309 Conn. 919, 70 A.3d 41 (2013).
11
In his appellate briefs, the plaintiff does not expressly concede that the
first two elements of res judicata are satisfied. Instead, the plaintiff’s appel-
late briefs concurrently analyze res judicata and collateral estoppel, and his
argument focuses only on the third and fourth elements of res judicata. To
the extent that the plaintiff contests the first two elements of res judicata,
we summarily dispose of those elements, for the reasons that follow.
With respect to the first element—a judgment rendered on the merits—
the entire 2006 action was resolved on the merits in favor of the defendants.
The court in the 2006 action rendered summary judgment in favor of the
defendants on the CUTPA claim on the basis of the applicable statute of
limitations and the breach of contract claim on the basis that the defendants
did not contract with DAB Three for insurance coverage for the property.
Neither of these summary judgments in favor of the defendants was reversed
on appeal. See DAB Three, LLC v. LandAmerica Financial Group, Inc.,
supra, 183 Conn. App. 309. Thus, the court’s summary judgments in the 2006
action are ‘‘on the merits’’ for purposes of res judicata. See, e.g., State v.
Ellis, 197 Conn. 436, 471, 497 A.2d 974 (1985) (‘‘dismissal based on the
statute of limitations is a dismissal on the merits’’ for purposes of res
judicata); Hall v. Gulaid, 165 Conn. App. 857, 861–64, 140 A.3d 396 (2016)
(This court held that the rendering of summary judgment on the ground
that ‘‘there was no genuine issue of material fact that the [prior] action was
barred by the statute of limitations’’ is ‘‘ ‘on the merits’ ’’ for purposes of
res judicata because ‘‘[a] judgment on the merits is one which is based
on legal rights as distinguished from mere matters of practice, procedure,
jurisdiction 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.’’ (Internal quotation marks omitted.)); Bruno v.
Geller, 136 Conn. App. 707, 725, 46 A.3d 974 (For purposes of res judicata,
‘‘[j]udgments based on the following reasons are not rendered on the merits:
want of jurisdiction; pre-maturity; failure to prosecute; unavailable or inap-
propriate relief or remedy; lack of standing. . . . Other final judgments,
however, whether rendered by dismissal, default or otherwise, generally are
considered judgments on the merits for purposes of res judicata.’’ (Citation
omitted; internal quotation marks omitted.)), cert. denied, 306 Conn. 905,
52 A.3d 732 (2012).
With respect to the second element—the parties to both actions are the
same or in privity—both defendants were parties to the 2006 action and
the 2019 actions. Although the 2006 action was brought by DAB Three, and
the 2019 actions were brought by both DAB Three and the plaintiff, this
inconsistency is immaterial because DAB Three and the plaintiff unquestion-
ably are in privity. See, e.g., Girolametti v. Michael Horton Associates, Inc.,
supra, 332 Conn. 76–77 (setting forth relevant considerations for privity
determination). Here, the plaintiff affirmatively alleges in the 2019 actions
that he was the sole owner, designee, managing partner, and assignee of
DAB Three, and he was the ‘‘sole person acting through and for his business.’’
See, e.g., Smith v. BL Cos., 185 Conn. App. 656, 665, 198 A.3d 150 (2018)
(allegations that individual was acting as agent and servant of entity named
in first action is sufficient to establish privity for purposes of res judicata).
Moreover, DAB Three and the plaintiff share the same legal rights because
they entered into an assignment agreement in which DAB Three assigned
all of its assets and liabilities to the plaintiff, specifically including the rights,
interest, and control of the claims asserted in the 2006 action. See footnote
7 of this opinion.
12
The plaintiff also asserts that discovery in the 2019 actions revealed
that LTIC has the only bank account among the entities listed on Fitzpatrick’s
office stationery.