Fisk v. BL Cos. , 185 Conn. App. 671 ( 2018 )

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APPENDIX
GREGG FISK 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, Gregg Fisk, filed the two count second
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 August 27,
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, negligently
surveyed the area around the retaining wall. Further-
more, the landscape architect and project manager for
this retaining wall, Fielding, submitted an unsafe design
that was not in accordance with requirements estab-
lished by the Department of Transportation and the
town of Redding Zoning Regulation. The construction
and design of the retaining wall was unsafe and consti-
tuted 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, Fisk
v. Redding, Superior Court, judicial district of Fairfield,
Docket No. XX-XXXXXXX-S (December 5, 2014) (Radcliffe,
J.) (Fisk 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 Fisk 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 Fisk I; the
plaintiff’s motion for leave to amend his complaint and
the amended complaint filed in Fisk I, dated July 24,
2014; Fisk v. Redding, 164 Conn. App. 647, 138 A.3d
410 (2016) (affirming Fisk I); the verdict form from
Fisk 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 plaintiff then filed a rebuttal on December
1, 2016, which is accompanied by the transcript from
the oral argument before the Appellate Court in Fisk
I. The parties 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 Fisk I, and the operative facts of Fisk
I and the present action are virtually identical. The
defendants assert in their memoranda and through the
exhibits provided that in Fisk I, the plaintiff sued BL
Co. on a theory of public nuisance for injuries arising
from his fall from the retaining wall on August 27, 2011.
The trial court, Radcliffe, J., granted summary judgment
to BL Co. in Fisk I, which the Appellate Court affirmed.
The defendants argue that the plaintiff’s claims for pro-
fessional negligence in the present case are barred,
notwithstanding the plaintiff’s new legal theory, as the
finality of the judgment rendered in Fisk 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 contend that the preclusive
effect of Fisk I applies to not only BL Co., a named
defendant in Fisk I, but also to Fielding, who the defen-
dants 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 Fisk I. The
plaintiff also argues that the claim of professional negli-
gence in the present case is a separate and distinct
claim from the public nuisance claim in Fisk I, and that
the two do not form a convenient trial unit. Specifically,
the plaintiff contends that the two claims require differ-
ent 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 unlitigated claims
because the present action is not duplicative and incon-
sistent 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 and the defendants’ invita-
tion. To support this argument, the plaintiff looks to
the trial court’s summary judgment decision in Fisk I,2
as well as statements made by the defendants’ counsel
at oral argument before the Appellate Court.3
‘‘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 Fisk I—
and, indeed, that the issue was not before the court in
Fisk I—does not impact the applicability of res judicata.
Whether the issue was actually litigated is a relevant
inquiry for the application of collateral estoppel, 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 considered—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 Appellate
Court affirmed that BL Co. was entitled to judgment as
a matter of law in Fisk I, the first element is met.
Second, both the plaintiff and BL Co. were parties to
Fisk 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 the
plaintiffs 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 Fisk I
to add such a claim. When granting the motion for
summary judgment in Fisk 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 Fisk 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
Fisk 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 August 27,
2011. The complaint in the present action does not
allege that the defendants engaged in any relevant con-
duct after the commencement of Fisk 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 Fisk 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 or when the defendant acquiesces to claim-
splitting. 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 terms of acquiescence, although it appears
that a defendant can consent to a second action implic-
itly, this determination requires a fact specific
approach. See Connecticut National Bank v. Rytman,
supra, 241 Conn. 43 n.23 (affirming trial court’s fact
specific determination that failing to object immediately
was not acquiescence to claim-splitting); Orselet v.
DeMatteo, 206 Conn. 542, 548–49, 539 A.2d 95 (1988)
(no implicit consent because ‘‘there is no evidence to
indicate that the defendants’ conduct contributed to
the filing of two separate lawsuits based on a single
cause of action’’).
In the present case, the policies underlying res judi-
cata favor preclusion. Litigation between the plaintiff
and BL Co. commenced in May of 2012, with decisions
issuing from both the Superior and Appellate Courts.
With due respect to the plaintiff’s alleged injuries, the
countervailing 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 Fisk 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 arguments concerning
reservation and invitation are not persuasive. In Fisk
I, the trial court, Radcliffe, J., merely noted that the
plaintiff had the opportunity to assert a claim for profes-
sional negligence; there is no express language indicat-
ing that the court intended to reserve the plaintiff’s
right to bring a second action following a final judgment
on the merits. Nor can the statements made by the
defendants’ counsel before the Appellate Court be con-
strued as an invitation. The focus of counsel’s argument
concerns the appropriate cause of action to be brought
based upon the factual circumstances underlying the
plaintiff’s injuries. In context, the statements indicate
that the defendants’ counsel acknowledged that the
statute of limitations had not run for a claim of profes-
sional negligence in order to highlight that the plaintiff
ought to have—and had the opportunity to—bring such
a claim, rather than ‘‘stretching absolute nuisance to
the nth degree . . . .’’ Read together, the trial court’s
decision and the defendants’ counsel’s statements
merely indicate that the plaintiff had the opportunity
to assert a claim for professional negligence, but failed
to do so, even though such a claim was not yet barred.
Neither the trial court nor the defendants’ counsel
invited the present action.
CONCLUSION
For the foregoing reasons the defendants’ motion for
summary judgment is granted.
* Affirmed. Fisk 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 [pleaded] in this case, although the time within which any
such claim may be asserted, has not expired.’’ Fisk v. Redding, supra,
Superior Court, Docket No. XX-XXXXXXX-S.
3
At oral argument, the defendants’ counsel argued: ‘‘[T]he cause of action
against those professionals is professional negligence, not absolute nuisance.
It’s a very different thing; it’s a very important distinction to understand
here. And the trial court pointed it out in its decision. They still, if they
want to allege a professional negligence claim against BL Companies, I
believe it’s still within [the] statute of limitations to do so. That’s their
avenue for recourse here. Not stretching absolute nuisance to the nth degree
. . . .’’ The defendants’ counsel later indicated that professional negligence
would have been ‘‘the appropriate cause of action’’ and noted that the seven
year statute of limitations had not yet run. In closing, counsel said: ‘‘[W]e
ask that you not expand absolute nuisance to encapsulate work of design
professionals. In this case, [it] was clearly undisputed that BL Companies
has no control, was not a user of the property. We controlled our design.
But there’s a cause of action, and there’s a right of action for [the plaintiff] if
they can prove that we deviated from the standard of care in—in that design.’’