Rockwell v. Rockwell

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JAMES W. ROCKWELL, JR. v.
DONATE S. ROCKWELL
(AC 42185)
DiPentima, C. J., and Elgo and Moll, Js.
Syllabus
The plaintiff sought to recover damages, including treble damages pursuant
to statute (§ 52-568), for vexatious litigation, alleging that the defendant
had brought an action against him in 2009 without probable cause and
with malicious intent. In a prior action brought in 2013 concerning the
2009 action, the plaintiff had sought to recover damages for vexatious
litigation from the defendant as well as her attorney, C. In May, 2015,
the trial court dismissed the action as to the defendant for lack of
personal jurisdiction. Thereafter, the court granted C’s motion to bifur-
cate the trial and have the issue of probable cause decided first by the
trial court. Following a hearing, the court concluded that C had probable
cause to bring the 2009 action and rendered judgment for C in October,
2015, which was affirmed by this court. In May, 2016, the plaintiff com-
menced the present action against the defendant pursuant to the acciden-
tal failure of suit statute (§ 52-592). The defendant filed a motion to
dismiss and/or motion for summary judgment in which she argued that
the present action was time barred and not saved by § 52-592. The trial
court denied the defendant’s motion, and the defendant filed an answer
and special defenses asserting, inter alia, that the present action was
barred by the doctrines of res judicata and/or collateral estoppel because
the trial court in 2013 found that there was probable cause for the 2009
action and she was in privity with her attorney, C. The defendant then
moved for summary judgment on the special defense of res judicata
and/or collateral estoppel, which the court denied, concluding that those
doctrines were inapplicable because the 2013 action involved what infor-
mation C possessed when he filed the action and the present action
involved what information the defendant possessed when she pursued
the 2009 action. On appeal to this court, the defendant claimed that the
trial court improperly denied her motions. Held:
1. The trial court did not err in denying the defendant’s motion for summary
judgment predicated on the special defense of res judicata and/or collat-
eral estoppel; the 2013 action involved whether C had probable cause
to commence the 2009 action on the basis of his knowledge at the time
whereas the present case concerned whether the defendant had probable
cause to pursue the 2009 action on the basis of her knowledge at the
time, and genuine issues of material fact existed as to this issue.
2. This court declined to review the defendant’s claim that the trial court
improperly denied her motion to dismiss predicated on her claim that
the present action was time barred and not saved by § 52-592; the denial
of a statute of limitations defense is not a final judgment and, therefore,
was not reviewable on appeal; moreover, although in some situations
a statute of limitations claim may be inextricably linked with a res
judicata and/or collateral estoppel claim and, thus, reviewable, the defen-
dant’s statute of limitations claim in her motion to dismiss was not
inextricably intertwined with her claims of res judicata and/or collateral
estoppel in her summary judgment motion.
Argued February 6—officially released March 31, 2020
Procedural History
Action to recover damages for vexatious litigation,
and for other relief, brought to the Superior Court in
the judicial district of Ansonia-Milford, where the court,
Hon. Arthur A. Hiller, judge trial referee, denied the
defendant’s motion to dismiss; thereafter, the court,
Stevens, J., denied the defendant’s motion for summary
judgment, and the defendant appealed to this court.
Affirmed in part; appeal dismissed in part.
Donate S. Rockwell, self-represented, the appellant
(defendant).
James W. Rockwell, Jr., self-represented, the appel-
lee (plaintiff).
Opinion
MOLL, J. The self-represented defendant, Donate S.
Rockwell, appeals following the trial court’s denial of
her motion for summary judgment against the self-rep-
resented plaintiff, James W. Rockwell, Jr.1 On appeal,
the defendant claims that the court improperly denied
(1) her motion for summary judgment on her special
defense of res judicata and/or collateral estoppel, and
(2) her motion, entitled ‘‘motion to dismiss and/or
motion for summary judgment,’’ in which she asserted
that the present action is time barred and cannot be
saved pursuant to General Statutes § 52-592,2 the acci-
dental failure of suit statute. We affirm the judgment
denying the defendant’s motion for summary judgment
based on res judicata and/or collateral estoppel
grounds, and we dismiss, for lack of a final judgment,
the remaining portion of the appeal taken from the
denial of the defendant’s ‘‘motion to dismiss and/or
motion for summary judgment’’ on the basis of § 52-592.
The following facts, which are undisputed, and proce-
dural history are relevant to our resolution of this
appeal. In 2009, the defendant commenced an action
against the plaintiff alleging that the plaintiff had
breached an agreement, executed by the parties in 1994,
concerning a joint investment in certain unspecified
securities. See Rockwell v. Rockwell, Superior Court,
judicial district of Ansonia-Milford, Docket No. CV-09-
5008114-S (2009 action). The defendant was repre-
sented by Attorney Ian A. Cole in the 2009 action. On
March 31, 2010, following a jury trial, the jury returned
a verdict in favor of the plaintiff, and the trial court,
Radcliffe, J., rendered judgment in accordance there-
with. The defendant did not appeal from that judgment.
In March, 2013, the plaintiff filed a vexatious litigation
action against the defendant and Cole, alleging that
they had commenced and prosecuted the 2009 action
without probable cause and with malicious intent to
unjustly vex and trouble him. See Rockwell v. Rockwell,
Superior Court, judicial district of Ansonia-Milford,
Docket No. CV-XX-XXXXXXX-S (2013 action). As relief,
the plaintiff sought compensatory damages and treble
damages pursuant to General Statutes § 52-568.3 A jury
trial commenced in May, 2015. On May 12, 2015, the
first day of evidence, the trial court, Stevens, J., dis-
missed the 2013 action as to the defendant for lack of
personal jurisdiction.4 The case continued as to Cole.
Thereafter, following a medical emergency suffered by
the plaintiff, the court released the jury and, in granting
a motion filed by Cole, bifurcated the trial such that,
as an initial matter, the court would decide the issue
of probable cause. On October 14, 2015, following a
hearing, the court rendered judgment in favor of Cole
on the basis of its conclusion that Cole had probable
cause to commence the 2009 action. The judgment was
affirmed on appeal. Rockwell v. Rockwell, 178 Conn.
App. 373, 400, 175 A.3d 1249 (2017), cert. denied, 328
Conn. 902, 177 A.3d 563 (2018).
In April, 2016, the plaintiff commenced the present
action against the defendant. In his one count com-
plaint, the plaintiff alleges that the defendant com-
menced and prosecuted the 2009 action without proba-
ble cause and with malicious intent to unjustly vex and
trouble him. As relief, he seeks, inter alia, compensatory
damages and treble damages pursuant to § 52-568. Addi-
tionally, the plaintiff asserts in the complaint that, in
accordance with § 52-592, he commenced the present
action within one year following the dismissal of the
2013 action against the defendant.
On May 24, 2016, the defendant filed a motion, enti-
tled ‘‘motion to dismiss and/or motion for summary
judgment’’ (May, 2016 motion), in which she claimed
that the statute of limitations governing the plaintiff’s
vexatious litigation claim, set forth in General Statutes
§ 52-577,5 had expired on March 31, 2013, and § 52-592
did not apply to save the present action. On September
19, 2016, the trial court, Hon. Arthur A. Hiller, judge
trial referee, issued an order summarily denying the
May, 2016 motion. Thereafter, the defendant filed an
answer and special defenses asserting, inter alia, that
the present action is barred under the doctrines of res
judicata and/or collateral estoppel.6 The plaintiff, in
turn, denied the defendant’s special defenses.
On March 8, 2018, the defendant filed a motion for
summary judgment on her special defense of res judi-
cata and/or collateral estoppel, to which the plaintiff
filed an objection on May 10, 2018. On September 20,
2018, the court, Stevens, J., issued a memorandum of
decision denying the defendant’s motion for summary
judgment and sustaining the plaintiff’s objection
thereto. This appeal followed. Additional facts will be
set forth as necessary.
I
The defendant first claims that the trial court improp-
erly denied her motion for summary judgment predi-
cated on her special defense asserting that the present
action is barred pursuant to the doctrines of res judicata
and/or collateral estoppel.7 We disagree.
We begin by setting forth the standard of review and
legal principles governing our resolution of this claim.
‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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 nonmoving party. . . . The party moving for
summary judgment has the burden of showing . . .
that the party is . . . entitled to judgment as a matter
of law. . . . Our review of the trial court’s decision to
grant the defendant’s motion for summary judgment is
plenary. . . . In addition, the applicability of res judi-
cata or collateral estoppel presents a question of law
over which we employ plenary review.’’ (Internal quota-
tion marks omitted.) Pollansky v. Pollansky, 162 Conn.
App. 635, 644–45, 133 A.3d 167 (2016).
‘‘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.’’ (Internal
quotation marks omitted.) Smith v. BL Cos., 185 Conn.
App. 656, 664, 198 A.3d 150 (2018). ‘‘Before collateral
estoppel applies . . . there must be an identity of
issues between the prior and subsequent proceedings.
To invoke collateral estoppel the issues sought to be
litigated in the new proceeding must be identical to
those considered in the prior proceeding.’’ (Internal
quotation marks omitted.) Barry v. Board of Education,
132 Conn. App. 668, 675, 33 A.3d 291 (2011).
In the present action, as he had in the 2013 action,
the plaintiff is raising a claim sounding in vexatious
litigation. ‘‘In Connecticut, the cause of action for vexa-
tious litigation exists both at common law and pursuant
to statute. Both the common law and statutory causes
of action [require] proof that a civil action has been
prosecuted . . . . Additionally, to establish a claim for
vexatious litigation at common law, one must prove
want of probable cause, malice and a termination of
suit in the plaintiff’s favor. . . . The statutory cause of
action for vexatious litigation exists under § 52-568, and
differs from a common-law action only in that a finding
of malice is not an essential element, but will serve as
a basis for higher damages. . . . In the context of a
claim for vexatious litigation, the defendant lacks prob-
able cause if he [or she] lacks a reasonable, good faith
belief in the facts alleged and the validity of the claim
asserted.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Bernhard-Thomas Building
Systems, LLC v. Dunican, 286 Conn. 548, 554, 944 A.2d
329 (2008).
In moving for summary judgment on her special
defense of res judicata and/or collateral estoppel, the
defendant asserted that the trial court in the 2013 action
concluded, and this court agreed on appeal, that proba-
ble cause existed to commence the 2009 action against
the plaintiff. The defendant further contended that,
although the 2013 action was dismissed as to her for
lack of personal jurisdiction, there was privity between
her and Cole such that the judgment in Cole’s favor in
the 2013 action barred the plaintiff from pursuing an
identical vexatious litigation claim against her in the
present action. In opposition to the motion for summary
judgment, the plaintiff argued that (1) the issue litigated
in the 2013 action was whether Cole had probable cause
to commence the 2009 action, whereas the distinct issue
to be litigated in the present action is whether the defen-
dant had probable cause to file the 2009 action, and
(2) there is no authority in Connecticut supporting the
defendant’s contention that a client and his or her law-
yer are always in privity for vexatious litigation
purposes.
In denying the defendant’s motion for summary judg-
ment, the trial court concluded that the doctrines of
res judicata and/or collateral estoppel were inapplicable
because ‘‘the present case presents matters not litigated
in the 2013 action . . . .’’ Specifically, the court deter-
mined: ‘‘The decisions of this court and the Appellate
Court in the 2013 action describe in detail what informa-
tion Cole possessed when he filed the 2009 action
against the plaintiff. . . . In contrast, in the trial of the
present action, the focus will be on what the defendant
knew, or should have known, when the 2009 action
was commenced. According to the plaintiff, what the
defendant knew differed from what Cole knew, because
the defendant was not forthright with Cole. . . . The
defendant denies the plaintiff’s claim that she intention-
ally or maliciously gave Cole wrong information. This
factual dispute cannot be resolved by this court through
a motion for summary judgment.’’8 (Citations omitted;
emphasis in original.)
We reject the defendant’s contention that the court
erred in denying her motion for summary judgment. As
the court correctly determined, the crux of the 2013
action was whether Cole had probable cause to com-
mence the 2009 action on the basis of the knowledge
that he had at that time. In contrast, the present case
concerns whether the defendant had probable cause to
commence the 2009 action predicated on the knowledge
that she possessed at that time. There are genuine issues
of material fact to be resolved in order to determine
whether the defendant had probable cause to pursue
the 2009 action. Accordingly, the defendant’s claim fails.
II
The defendant next claims that the trial court improp-
erly denied her May, 2016 motion predicated on her
assertion that the present action is time barred and
cannot be saved pursuant to § 52-592. We decline to
address the merits of this claim because we conclude
that the denial of the May, 2016 motion is not a final
judgment.
‘‘The lack of a final judgment implicates the subject
matter jurisdiction of an appellate court to hear an
appeal. A determination regarding . . . subject matter
jurisdiction is a question of law . . . [and, therefore]
our review is plenary.’’ (Internal quotation marks omit-
ted.) Glastonbury v. Sakon, 172 Conn. App. 646, 651,
161 A.3d 657 (2017).
As we observed earlier in this opinion, the denial of
the defendant’s motion for summary judgment on her
special defense of res judicata and/or collateral estoppel
is a final judgment for purposes of this appeal. See
footnote 7 of this opinion. The denial of the defendant’s
May, 2016 motion predicated on her statute of limita-
tions claim, however, does not constitute a final judg-
ment. See Santorso v. Bristol Hospital, 308 Conn. 338,
354 n.9, 63 A.3d 940 (2013) (‘‘the denial of a statute
of limitations defense is not itself an appealable final
judgment’’). We recognize that ‘‘[i]n some circum-
stances, the factual and legal issues raised by a legal
argument, the appealability of which is doubtful, may
be so inextricably intertwined with another argument,
the appealability of which is established that we should
assume jurisdiction over both.’’ (Internal quotation
marks omitted.) Aqleh v. Cadlerock Joint Venture II,
L.P., 299 Conn. 84, 90, 10 A.3d 498 (2010). In some
situations, a statute of limitations claim may be inextri-
cably intertwined with a res judicata and/or collateral
estoppel claim. See, e.g., Santorso v. Bristol Hospital,
supra, 354 n.9 (concluding that interlocutory review of
claim that action was barred by statute of limitations
and statute of repose, and not saved by § 52-592, was
permissible because it was inextricably intertwined
with res judicata claim).9 On the basis of the record
before us in the present action, in which the defendant
raised her statute of limitations claim and her res judi-
cata and/or collateral estoppel claim in wholly separate
motions, and where we cannot discern any meaningful
connection between those claims, we conclude that
the denial of the May, 2016 motion is not inextricably
intertwined with the denial of the motion for summary
judgment. Accordingly, we lack subject matter jurisdic-
tion to entertain the portion of the appeal challenging
the denial of the May, 2016 motion.10
The judgment denying the defendant’s motion for
summary judgment based on res judicata and/or collat-
eral estoppel is affirmed; the appeal is dismissed with
respect to the denial of the defendant’s May 24, 2016,
‘‘motion to dismiss and/or motion for summary judg-
ment’’ for lack of a final judgment.
In this opinion the other judges concurred.
1
This appeal constitutes the latest dispute in the unfortunate and tortuous
history between the parties, who are former spouses.
2
General Statutes § 52-592 (a) provides: ‘‘If any action, commenced within
the time limited by law, has failed one or more times to be tried on its
merits because of insufficient service or return of the writ due to unavoidable
accident or the default or neglect of the officer to whom it was committed,
or because the action has been dismissed for want of jurisdiction, or the
action has been otherwise avoided or defeated by the death of a party or
for any matter of form; or if, in any such action after a verdict for the
plaintiff, the judgment has been set aside, or if a judgment of nonsuit has
been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if
the plaintiff is dead and the action by law survives, his executor or adminis-
trator, may commence a new action, except as provided in subsection (b)
of this section, for the same cause at any time within one year after the
determination of the original action or after the reversal of the judgment.’’
3
General Statutes § 52-568 provides: ‘‘Any person who commences and
prosecutes any civil action or complaint against another, in his own name
or the name of others, or asserts a defense to any civil action or complaint
commenced and prosecuted by another (1) without probable cause, shall
pay such other person double damages, or (2) without probable cause, and
with a malicious intent unjustly to vex and trouble such other person, shall
pay him treble damages.’’
4
On May 13, 2013, the defendant filed a motion to dismiss the 2013 action
as to her for lack of personal jurisdiction on the ground that the plaintiff
had not served her at the proper address. The plaintiff filed an objection
thereto, which the court, Markle, J., sustained on March 3, 2014. On May
12, 2015, the court, Stevens, J., upon reconsideration, granted the defendant’s
motion to dismiss.
5
General Statutes § 52-577 provides: ‘‘No action founded upon a tort shall
be brought but within three years from the date of the act or omission
complained of.’’
6
The defendant also asserted as a special defense that the present action
is time barred. Subsequently, the defendant amended her special defenses
to plead a third special defense asserting advice of counsel. The defendant’s
special defense asserting res judicata and/or collateral estoppel is the only
defense pertinent to this appeal.
7
The denial of the defendant’s motion for summary judgment on her
special defense of res judicata and/or collateral estoppel is a final judgment
for purposes of this appeal. See Deutsche Bank AG v. Sebastian Holdings,
Inc., 174 Conn. App. 573, 578 n.4, 166 A.3d 716 (2017) (‘‘[O]rdinarily, the
denial of a motion for summary judgment is not an appealable final judgment.
. . . When the decision on a motion for summary judgment, however, is
based on the doctrine of collateral estoppel, the denial of that motion does
constitute a final judgment for purposes of appeal. . . . That precept applies
to the doctrine of res judicata with equal force.’’ (Internal quotation marks
omitted.)), aff’d, 331 Conn. 379, 204 A.3d 664 (2019).
8
The court did not reach the defendant’s claim regarding her privity
with Cole.
9
In her appellate brief, the defendant cites Santorso for the proposition
that the denial of her May, 2016 motion is inextricably intertwined with the
denial of her motion for summary judgment. We do not construe Santorso
as establishing that a statute of limitations claim, in every instance, is inextri-
cably intertwined with a res judicata and/or collateral estoppel claim.
10
We emphasize that nothing in this opinion should be considered as a
ruling on the merits of the plaintiff’s claim or the defendant’s special
defenses.