Opinion
DBDCV196030131S
08-12-2019
Bryan L. Salmone & Associates, PC v. Elizabeth Malice
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): D’Andrea, Robert A., J.
MEMORANDUM OF DECISION ON DEFENDANT’S MOTION TO DISMISS
D’ANDREA, Robert A., J.
Pursuant to Practice Book § 10-30, the defendant, Elizabeth Malice ("Malice") moved to dismiss the plaintiff Bryan L. Salmone & Associates PC’s ("Salmone") complaint under the prior pending action doctrine, as there is/was a prior pending matter in the Superior Court of Danbury bearing docket number DBD-CV-18-6026916-S (Application to Confirm Arbitrator’s Award), which is another suit claiming legal fees allegedly under the same transaction or occurrence as this matter. In support of this motion dated March 6, 2019, Malice submitted a memorandum of law of same date. In opposition to said motion to dismiss, Salmone submitted an objection to motion to dismiss dated April 16, 2019, and a memorandum of law in opposition to motion to dismiss of same date. In opposition to said motion, Salmone claims that the prior pending action doctrine is not applicable for three reasons, (1) the application to enforce arbitration and the above captioned matter seek to enforce different rights of Salmone, (2) the application to enforce arbitration has been withdrawn, and (3) there is no change of double recovery by Salmone, therefore, the motion should be denied.
The court will forego the legal analysis of the prior pending action doctrine in the case of DBD-CV-18-6026916-S, an Application to Confirm Arbitrator’s Award, as has been withdrawn and is no longer pending, and the issue is now rendered moot. However, this court, sua sponte, has the authority to review this matter, once an issue has been raised, as to whether it is appropriate to allow the matter to proceed. After review of the pleadings in both the current matters, and the now withdrawn matter, the court is of the opinion that the doctrine of res judicata may be applicable.
FACTS APPLICABLE
In DBD-CV-18-6026916-S, the Salmone filed an application to confirm arbitrator’s award, dated May 14, 2018, to confirm an arbitration award rendered on November 15, 2016 in the State of New York. By way of background, Malice engaged the services of Salmone as her attorney for a matter pending in New York, and after a dispute arose between Salmone and Malice as to the fee Salmone was entitled to, the parties voluntarily submitted their dispute to a binding fee dispute arbitration through the Suffolk County Bar Association in the State of New York. Attached to the application, as exhibit A, was the arbitration award dated November 15, 2016 rendered by the three-person arbitration panel, showing Salmone’s demanded $18,019 and the arbitration panel awarded Salmone $10,000, after what the award stated was "review of the testimony and physical evidence." The Suffolk County Bar Association arbitration award indicated that the "determination is final and binding on the parties." It stated that "[i]f the payment does not occur, the arbitration award must be confirmed and entered as a judgment of the court to be enforceable. You have one year after the date of delivery of the award to confirm the award by commencing a proceeding at the appropriate court. Confirmation of arbitration awards is governed by CPLR 7510."
The parties appeared at short calendar on August 6, 2019, and Salmone’s counsel indicated that Salmone did not commence an action to confirm the award within the one-year period required, as Malice apparently had moved to Connecticut shortly before the end of the one-year confirmation period. As the matter could no longer be enforced in New York, due to the expiration of the one-year period, as Salmone failed to comply with CPLR 7510 to enforce the award in New York, Salmone filed an application to confirm arbitrator’s award in Danbury under General Statutes § 52-417 et seq., which application was filed May 14, 2018. Salmone subsequently became aware that under § 52-417 et seq., the plaintiff must file the application "at any time within one year after an award has been rendered and the parties to the arbitration notified thereof ..." As the parties were notified on November 21, 2016 of the Suffolk County Bar Association arbitration award, and the application was not filed in Danbury court until May 14, 2018, nearly eighteen months after the award was rendered, Salmone missed the required period and ceased litigating the matter by filing a withdrawal of the action. It is significant to note that Salmone missed, for whatever reason, both the one-year period to enforce the arbitration award in New York, and the one-year period to enforce the arbitration award in Connecticut.
Salmone then commenced this action by way of complaint dated January 30, 2019, indicating that Salmone provided legal services to Malice, and, that despite providing said legal services, Malice did not pay Salmone as agreed, and that there is a balance due Salmone, which Malice has refused to pay. This is now the third attempt by Salmone to collect this debt. Salmone objects to the motion to dismiss, claiming that the application to confirm arbitration award was based on the right to domesticate a foreign award, and the right being enforced in this matter is the right to sue on a breach of contract claim. Since, as Salmone alleges, the two matters are different, the motion should be denied, especially since the application to confirm arbitration award has been withdrawn and is no longer pending. The court, after reviewing the pleadings in all matters, pending and withdrawn, raises, sua sponte, the issue of whether res judicata requires dismissal of this matter. The court will examine the appropriate case law to proceed.
LEGAL STANDARD
First, the court must determine if it has the authority to review, sua sponte, whether a matter must be dismissed under the doctrine of res judicata, even though that issue was not raised by Malice either in her motion to dismiss, or at the short calendar argument on August 6, 2019. In Somers v. Chan, 110 Conn.App. 511 in footnote, 20, the Appellate Court stated that "Res judicata may be raised by the court, sua sponte." Legassey v. Shulansky, 28 Conn.App. 653, 654, 611 A.2d 930 (1992). Having the authority to raise the issue of res judicata, sua sponte, this court must now look at the applicability of res judicata to the arbitration award, as it relates to a pending superior court matter. In Middlesex Mutual Assurance Co. v. Harrison, 1992 WL 183800, July 28, 1992, (Nigro, J.), the court stated that "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 and issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 559, 436 A.2d 24 (1980); Orselet v. DeMatteo, 206 Conn. 542, 545, 539 A.2d 95 (1988). If the same cause of action is again sued upon, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made. Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 196, 91 A.2d 778 (1952); Wade’s Dairy, Inc., supra, at 559-60." Id. at *2. The court went on further and found that "Arbitration is res judicata as to all matters in the submission." Local 1219 v. Connecticut Labor Relations Board, 171 Conn. 342, 356, 370 A.2d 952 (1976). An arbitration award valid on its face has the force of a judgment and becomes res judicata as to all matters embraced in the submission. Corey v. Avco-Lycoming Division, 163 Conn. 309, 319, 307 A.2d 155 (1972). Id. at *3. Finally, the court will look to see if the failure to enforce the judgment in New York by Salmone, renders the judgment tentative, and not a final judgment. The Appellate Court ruled that "[F]or purposes of res judicata, a judgment will ordinarily he considered final if it is not tentative, provisional, or contingent and represents the completion of all steps in the adjudication of the claim by the court, short of any steps by way of execution or enforcement that may be consequent upon the particular kind of adjudication ." Honan v. Dimyian, 63 Conn.App. 702, 708, 778 A.2d 989 (2001) (emphasis added). In New York, the parties agreed to submit the fee dispute to binding arbitration, after a hearing in which the arbitration panel review "testimony and physical evidence," it rendered an award that was final and binding on the parties. Neither party took an action for either a trial de novo or vacatur within the proscribed time periods. As such the arbitration award becomes a final and binding determination on the parties. The fact that no action was ever taken in New York to have the award confirmed in a court does not affect its finality in any way.
ANALYSIS
Since this court has authority, sua sponte, to raise the res judicata issue, the court will reverse the legal analysis in reviewing the award. First, is it final judgment? The arbitration award was rendered on November 15, 2016 and distributed to the parties on November 21, 2016. The arbitration award stated that "the determination is final and binding on the parties, except that a party dissatisfied with the award may seek one of the following post-award options within the time frame indicated; "Trial de novo: either party may reject the decision ... and commence an action on the merits ... in a court of competent jurisdiction within 30 days after the arbitration award is mailed; or Vacatur: either party may seek to vacate the award within 90 days after delivery to the party." As neither an action for a trial de novo, or action for vacatur was initiated by either Salmone or Malice within the requisite time period, the award is a valid, final, and binding award on both of the parties. The fact that Salmone either neglected to, or intentionally chose not to confirm the award, by commencing a proceeding at the appropriate court within one year after the date of delivery of the award, does not affect its finality. Next, the court must determine if the same cause of action is again sued upon, with respect to any claims relating to the cause of action which were actually made. If so then the arbitration award is res judicata as to all matters in the submission to the Suffolk County Bar Association. Despite Salmone’s protestations to the contrary, the actions, are, for all practical and legal purposes, identical. Each claims that Salmone provided legal services to Malice in New York. Each claims that a dispute arose and Malice did not pay Salmone. Finally, each claims that Malice owes Salmone outstanding fees. Both the arbitration and the legal action were done to collect the outstanding legal fees. Based on the foregoing, the court finds that the similarities of the matters satisfy the legal requirements for the application of the doctrine of res judicata. This matter is the third attempt that Salmone has initiated to collect the outstanding fees allegedly due. This matter has been fully decided by the Suffolk County Bar Association arbitration panel award, the doctrine of res judicata is applicable, and the court, sua sponte, dismisses the action based on res judicata.