Smith v. BL Cos. , 185 Conn. App. 656 ( 2018 )

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APPENDIX
BRANDON SMITH v.
BL COMPANIES,
INC., ET AL.*
Superior Court, Judicial District of Fairfield
File No. CV-XX-XXXXXXX
Memorandum filed April 3, 2017
Proceedings
Memorandum of decision on defendants’ motion for
summary judgment. Motion granted.
A. Reynolds Gordon and Frank A. DeNicola, Jr., for
the plaintiff.
Jared Cohane and Luke R. Conrad, for the
defendants.
Opinion
KAMP, J. The issue before the court is the defendants’
motion for summary judgment on the ground that the
plaintiff’s claims are barred by res judicata. For the
reasons set forth below the motion is granted.
FACTS
The plaintiff, Brandon Smith, filed the two count sec-
ond amended complaint on June 13, 2016. The plaintiff
asserts one claim of professional negligence against
each defendant; count one is against BL Companies,
Inc. (BL Co.), and count two is against James Fielding.1
The plaintiff alleges the following facts. On Septem-
ber 17, 2011, the plaintiff fell off a retaining wall and
sustained injuries. The drop from the retaining wall was
between five and six feet, and there was no protective
fence in place. BL Co., a firm of design engineers, negli-
gently surveyed the area around the retaining wall. Fur-
thermore, the landscape architect and project manager
for this retaining wall, Fielding, submitted an unsafe
design that was not in accordance with requirements
established by the Department of Transportation and
the Town of Redding Zoning Regulation. The construc-
tion and design of the retaining wall was unsafe and
constituted a fall hazard.
On October 17, 2016, the defendants filed a motion
for summary judgment on the ground that due to a
judgment on the merits rendered in a prior action,
Smith v. Redding, Superior Court, judicial district of
Fairfield, Docket No. XX-XXXXXXX-S (December 5, 2014)
(Radcliffe, J.) (59 Conn. L. Rptr. 408) (Smith I), the
plaintiff’s claims are barred by res judicata. The motion
is accompanied by a memorandum of law and several
exhibits: the trial court’s decision from Smith I, granting
BL Co.’s motion for summary judgment; the affidavit
of Derek A. Kohl, principal with BL Co.; a copy of the
judgment file from Smith I; the plaintiff’s motion for
leave to amend his complaint and the amended com-
plaint filed in Smith I, dated July 24, 2014; the with-
drawal of the plaintiff’s appeal from the trial court, on
July 21, 2015; the verdict form from Smith I, finding in
favor of the Town of Redding; and the plaintiff’s motion
for leave to amend his complaint, filed on June 13, 2016,
as well as the complaint filed in the present action. The
plaintiff filed a memorandum of law in opposition on
November 15, 2016. The defendants responded with a
memorandum of law on November 23, 2016. The plain-
tiff then filed a rebuttal on December 1, 2016. The par-
ties were heard at short calendar on December 5, 2016.
DISCUSSION
‘‘Summary judgment is a method of resolving litiga-
tion when 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. . . . The motion for sum-
mary judgment is designed to eliminate the delay and
expense of litigating an issue when there is no real issue
to be tried. . . . However, since litigants ordinarily
have a constitutional right to have issues of fact decided
by a jury . . . the moving party for summary judgment
is held to a strict standard . . . of demonstrating his
entitlement to summary judgment.’’ (Citation omitted;
internal quotation marks omitted.) Grenier v. Commis-
sioner of Transportation, 306 Conn. 523, 534–35, 51
A.3d 367 (2012). ‘‘Moreover, summary judgment is an
appropriate vehicle for raising a claim of res judicata
. . . .’’ (Citations omitted.) Joe’s Pizza, Inc. v. Aetna
Life & Casualty Co., 236 Conn. 863, 867 n.8, 675 A.2d
441 (1996).
The defendants argue that the plaintiff’s claims are
barred by res judicata because there was a judgment
on the merits in Smith I, and the operative facts of
Smith I and the present action are virtually identical.
The defendants assert in their memoranda and through
the exhibits provided that in Smith I, the plaintiff sued
BL Co. on a theory of public nuisance for injuries arising
from his fall from the retaining wall on September 17,
2011. The trial court, Radcliffe, J., granted summary
judgment to BL Co. in Smith I. The defendants argue
that the plaintiff’s claims for professional negligence in
the present case are barred, notwithstanding the plain-
tiff’s new legal theory, as the finality of the judgment
rendered in Smith I applies to any other admissible
matter that might have been raised, and the plaintiff
had the opportunity to raise a professional negligence
claim in the prior action. Finally, the defendants con-
tend that the preclusive effect of Smith I applies to not
only BL Co., a named defendant in Smith I, but also
to Fielding, who the defendants argue is in privity with
BL Co.
The plaintiff argues that the application of res judi-
cata would push the doctrine beyond its intended pur-
poses and, furthermore, that preclusion would unfairly
prejudice him. First, the plaintiff argues that the ques-
tion of wrongdoing was not determined in Smith I.
The plaintiff also argues that the claim of professional
negligence in the present case is a separate and distinct
claim from the public nuisance claim in Smith I, and
that the two do not form a convenient trial unit. Specifi-
cally, the plaintiff contends that the two claims require
different liability experts and that, if presented together,
the claims would confuse a jury. The plaintiff also
argues that the policies and underlying purposes of res
judicata counsel against barring the plaintiff’s unliti-
gated claims because the present action is not duplica-
tive and inconsistent judgments are impossible.
Furthermore, the plaintiff asserts that the defendants
are not harassed by the present action because it is
brought pursuant to the trial court’s reservation. To
support this argument, the plaintiff looks to the trial
court’s summary judgment decision in Smith I.2
‘‘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. . . . Claim preclusion
(res judicata) and issue preclusion (collateral estoppel)
have been described as related ideas on a continuum.
. . . [C]ollateral estoppel, or issue preclusion . . .
prohibits the relitigation of an issue when that issue
was actually litigated and necessarily determined in a
prior action between the same parties or those in privity
with them upon a different claim.’’ (Citations omitted;
internal quotation marks omitted.) Powell v. Infinity
Ins. Co., 282 Conn. 594, 600, 922 A.2d 1073 (2007).
‘‘Unlike collateral estoppel, under which preclusion
occurs only if a claim actually has been litigated, [u]nder
the doctrine of res judicata, or claim preclusion, a for-
mer judgment on a claim, if rendered on the merits, is
an absolute bar to a subsequent action on the same
claim . . . [or any claim based on the same operative
facts that] might have been made. . . . [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 . . . .’’
(Emphasis in original; internal quotation marks omit-
ted.) Connecticut National Bank v. Rytman, 241 Conn.
24, 43–44, 694 A.2d 1246 (1997). ‘‘[R]es judicata prevents
reassertion of the same claim regardless of what addi-
tional or different evidence or legal theories might be
advanced in support of it.’’ (Internal quotation marks
omitted.) Wheeler v. Beachcroft, LLC, 320 Conn. 146,
157–58, 129 A.3d 677 (2016).
In the present case, the plaintiff’s argument that the
issue of wrongdoing was not determined in Smith I—
and, indeed, that the issue was not before the court
in Smith I—does not impact the applicability of res
judicata. Whether the issue was actually litigated is a
relevant inquiry for the application of collateral estop-
pel, but not res judicata. Accordingly, in determining
whether the present action is barred, the court must
look to whether the plaintiff had the opportunity to
raise a claim for professional negligence in the prior
action; that the present action presents a new legal
theory—and consequently, new issues to be consid-
ered—is not determinative.
‘‘Generally, for res judicata to apply, four elements
must be met: (1) the judgment must have been rendered
on the merits by a court of competent jurisdiction; (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.’’ Id., 156–57.
In the present case, the first two elements do not
appear to be in dispute. First, summary judgment is a
final judgment on the merits; because the trial court,
Radcliffe, J., determined that BL Co. was entitled to
judgment as a matter of law in Smith I, the first element
is met. Second, both the plaintiff and BL Co. were par-
ties to Smith I. As the plaintiff alleges that Fielding was
at all times acting as the agent, servant and employee
of BL Co., and within the scope of his duties, Fielding
is in privity with BL Co. See Summitwood Development,
LLC v. Roberts, 130 Conn. App. 792, 802–803, 25 A.3d
721 (defendant-agents in privity with employer named
in prior suit), 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). Accordingly, the second element
is also met.
With regard to the third element, adequate opportu-
nity, ‘‘[r]es judicata bars the relitigation of claims actu-
ally made in the prior action as well as any claims that
might have been made there. . . . Public policy sup-
ports the principle that a party should not be allowed
to relitigate a matter which it already has had an oppor-
tunity to litigate.’’ (Citation omitted; internal quotation
marks omitted.) Wheeler v. Beachcroft, LLC, supra, 320
Conn. 157. ‘‘[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
. . . proceeding provided the proper forum for the res-
olution of that claim, res judicata may bar litigation of
a subsequent action.’’ (Emphasis in original.) Weiss v.
Weiss, 297 Conn. 446, 464, 998 A.2d 766 (2010); cf. In
re Probate Appeal of Cadle Co., 152 Conn. App. 427,
100 A.3d 30 (2014) (where Superior Court lacked juris-
diction over claim not raised in Probate Court, plaintiff
had no opportunity to raise claim).
Bifurcation and amendment afford a plaintiff the
opportunity to avoid piecemeal litigation. ‘‘[A]ny poten-
tial prejudice resulting from facts that are not related
could be resolved by bifurcating the trial. With bifurca-
tion, the evidence common to both claims, which was
considerable, could have been presented at once and
not in separate lawsuits commenced at a distance of
months or years.’’ (Internal quotation marks omitted.)
Powell v. Infinity Ins. Co., supra, 282 Conn. 610 n.5.
The court in Powell also noted that the trial court, in
applying res judicata, correctly considered that plain-
tiffs failed to amend their complaint to incorporate the
allegations that were eventually raised in the second
action. Id., 608.
The third element is met in the present case. As an
initial matter, the Superior Court could have exercised
jurisdiction over the professional negligence claim, had
the plaintiff raised it. To the extent that the plaintiff
argues that the differences between public nuisance
and professional negligence deprived him of the oppor-
tunity to bring both—because to do so would be impos-
sible—the plaintiff fails to consider the possibility of
bifurcation. Moreover, the plaintiff not only had the
opportunity to bring a claim for professional negligence
at the commencement of the prior action, but he also
had the opportunity to amend the pleadings in Smith
I to add such a claim. When granting the motion for
summary judgment in Smith I, the trial court, Radcliffe,
J., expressly noted that although the plaintiff had not
pleaded professional negligence, the time to do so had
not yet expired; even though the plaintiff amended his
complaint in Smith I in July, 2014, he did not assert a
claim for professional negligence. Therefore, the plain-
tiff had the opportunity to litigate the matter fully in
the prior action.
The fourth element for res judicata is that ‘‘the same
underlying claim must be at issue.’’ Wheeler v.
Beachcroft, LLC, supra, 320 Conn. 157. ‘‘Although res
judicata bars claims that were not actually litigated in
a prior action, the previous and subsequent claims must
be considered the same for res judicata to apply.’’ Id.,
159. ‘‘To determine whether claims are the same for
res judicata purposes, this court has adopted the trans-
actional test. . . . Under the transactional test, res
judicata extinguishes all rights of the plaintiff to reme-
dies against the defendant with respect to all or any
part of the transaction, or series of connected transac-
tions, 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 convenient trial unit, and whether
their treatment as a unit conforms to the parties’ expec-
tations or business understanding 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.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Id., 159–60.
In Wheeler, the court declined to apply res judicata.
This determination rested, in part, on the fact that the
plaintiffs were not a party to the earlier action; id.,
163–64; but also because the court in Wheeler deter-
mined that there was not a significant overlap in the
evidence required for each cause of action. Id. The court
noted that the differences ‘‘render the claims factually
and legally dissimilar enough to preclude their presenta-
tion to a jury in a logically succinct way.’’ Id., 163 n.18.
Although the court in Wheeler considered the degree
of overlap between the distinct causes of action when
deciding not to apply res judicata, whether claims form
a convenient trial unit is just one factor to be weighed.
‘‘Among the factors relevant to a determination whether
the facts are so woven together as to constitute a single
claim are their relatedness in time, space, origin, or
motivation, and whether, taken together, they form a
convenient unit for trial purposes. Though no single
factor is determinative, the relevance of trial conve-
nience makes it appropriate to ask how far the wit-
nesses or proofs in the second action would tend to
overlap the witnesses or proofs relevant to the first. If
there is a substantial overlap, the second action should
ordinarily be held precluded. But the opposite does not
hold true; even when there is not a substantial overlap,
the second action may be precluded if it stems from the
same transaction or series.’’ 1 Restatement (Second),
Judgments § 24, comment (b), p. 199 (1982); see also
Savvidis v. Norwalk, 129 Conn. App. 406, 411–12, 21
A.3d 842, cert. denied, 302 Conn. 913, 27 A.3d 372 (2011).
Thus, when the facts underlying the claims are the
same, res judicata may apply. See Powell v. Infinity
Ins. Co., supra, 282 Conn. 609 (‘‘because the factual
underpinnings of the claims asserted in action II and
those actually litigated in action I are the same, they
formed a convenient trial unit that would have favored
consolidation’’ [internal quotation marks omitted]);
Buck v. Berlin, 163 Conn. App. 282, 293, 135 A.3d 1237
(applying res judicata where ‘‘virtually indistinguish-
able’’ factual circumstances gave rise to distinct legal
theories), cert. denied, 321 Conn. 922, 138 A.3d 283
(2016); Summitwood Development, LLC v. Roberts,
supra, 130 Conn. App. 804–805 (applying res judicata
where claims arose from same facts and sought redress
for the same injury).
In the present case, the fourth and final element is met
because under the transaction test, the same underlying
claim is at issue. The factual allegations giving rise to
Smith I and the present action are nearly identical. In
both instances, the plaintiff seeks redress from injuries
sustained after falling off a retaining wall on September
17, 2011. The complaint in the present action does not
allege that the defendants engaged in any relevant con-
duct after the commencement of Smith I. Moreover,
the present action is distinguishable from Wheeler, as
in that instance the plaintiffs facing preclusion had not
been a party to the prior action, which was an important
factor that the court weighed alongside the determina-
tions concerning the claims’ dissimilarities. As Smith
I and the present case arise from a common set of
facts and merely offer different legal theories, the same
underlying claim is at issue.
Having determined that res judicata may bar the
plaintiff’s claims, the court will consider whether the
policies underlying res judicata favor preclusion.
‘‘[A]pplication of the doctrine can yield harsh results,
especially in the context of claims that were not actually
litigated . . . . The decision of whether res judicata
should bar such claims should be based upon a consid-
eration 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.’’ (Citation
omitted; internal quotation marks omitted.) Wheeler v.
Beachcroft, LLC, supra, 320 Conn. 158. The purposes
of res judicata are ‘‘promoting judicial economy, min-
imizing repetitive litigation, preventing inconsistent
judgments and providing repose to parties.’’ Weiss v.
Weiss, supra, 297 Conn. 465.
Related to repose, there are certain exceptions to the
general rule concerning claim-splitting, such as when
the court has reserved a plaintiff’s right to bring a sec-
ond action. See 1 Restatement (Second), supra, § 26. ‘‘A
determination by the court that its judgment is ‘without
prejudice’ (or words to that effect) to a second action on
the omitted part of the claim, expressed in the judgment
itself, or in the findings of fact, conclusions of law,
opinion, or similar record, unless reversed or set aside,
should ordinarily be given effect in the second action.’’
Id., comment (b), p. 236; see A.J. Masi Electric Co. v.
Marron & Sipe Building & Contracting Corp., 21 Conn.
App. 565, 574 A.2d 1323 (1990) (res judicata not applied
where trial court in original case, with the consent of
the parties, ordered claims to be severed and tried sepa-
rately).
In the present case, the policies underlying res judi-
cata favor preclusion. Litigation between the plaintiff
and BL Co. commenced in January of 2012. With due
respect to the plaintiff’s alleged injuries, the counter-
vailing interest in bringing litigation to a close is strong.
The promotion of judicial economy weighs in favor
of the defendants because the professional negligence
claim could have been adjudicated at the same time as
the public nuisance claim.
Furthermore, the plaintiff’s argument that the present
case is not repetitive ignores the numerous, fundamen-
tal similarities between Smith I and the present case
in favor of emphasizing the minor differences. Both
actions allege a common set of facts, both allege claims
sounding in tort, and both seek redress of the same
injury. That professional negligence is a different legal
theory than public nuisance does not sufficiently distin-
guish the two actions. Accordingly, the goal of minimiz-
ing repetitive litigation also favors the defendants.
Although the plaintiff may be correct that the present
case does not implicate the policy concerning inconsis-
tent judgments, the plaintiff’s argument concerning res-
ervation is not persuasive. In Smith I, the trial court,
Radcliffe, J., merely noted that the plaintiff had the
opportunity to assert a claim for professional negli-
gence; there is no express language indicating that the
court intended to reserve the plaintiff’s right to bring
a second action following a final judgment on the mer-
its. The trial court’s decision merely indicates that the
plaintiff had the opportunity to assert a claim for profes-
sional negligence, but failed to do so, even though such
a claim was not yet barred. The court’s language does
not reserve the plaintiff’s right to bring the present
action.
CONCLUSION
For the foregoing reasons, the defendants’ motion
for summary judgment is granted.
* Affirmed. Smith v. BL Cos., 185 Conn. App. , A.3d (2018).
1
Hereafter, BL Co. and Fielding will be referred to collectively as the
defendants, and individually by name, where appropriate.
2
For his reservation argument, the plaintiff relies on the following lan-
guage: ‘‘Although free to assert claims of professional negligence against
the architect, the Plaintiffs have failed to do so. No claim of professional
negligence is pled in this case, although the time within which any such
claim may be asserted, has not expired.’’ Smith v. Redding, supra, 59 Conn.
L. Rptr. 411.