Opinion
No. CVH-7414
January 12, 2007
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE DEFAULT FOR FAILURE TO PLEAD, MOTION FOR SUMMARY JUDGMENT, MOTION TO DISMISS
I STATEMENT OF THE CASE
This is an action in damages relating to a security deposit. The plaintiff seeks damages and other relief. The following procedural history is relevant to the disposition of this case.
On March 10, 2006, Cormier filed a small claims action based on the Hohenthal's failure to return his security deposit. This case became Docket No. CVH-7414. On April 4, 2006, Eric Hohenthal, pro se, filed an answer alleging that he was not a Connecticut resident and did not own any real or personal property in Connecticut. On April 5, 2006, Eleanor Hohenthal, represented by counsel, filed a motion to transfer the matter to the regular docket, which was granted the same day.
On August 2, 2006, Cormier was ordered to file a complaint in compliance with Practice Book § 10-1, which was filed on August 24, 2006. On October 16, 2006, Cormier's motion for failure to plead was granted. On October 19, 2006, Eleanor Hohenthal filed an answer. On November 1, 2006, Cormier filed a motion for judgment rendered after default as to Eric Hohenthal, and a hearing in damages was scheduled for December 6, 2006.
On November 21, 2006, Eleanor Hohenthal filed a motion for summary judgment on the grounds that at the commencement of this action, there was and had been another action already decided in the Superior Court/Appellate Court between the same parties and for the same cause as set forth in the instant complaint.
On November 29, 2006, Eleanor Hohenthal's attorney filed an appearance for all defendants. Practice Book § 3-11 provides "Where there are several plaintiffs or defendants the appearance shall state specifically either that it is for all or that it is for certain specified parties; otherwise the appearance shall not be entered by the clerk." By filing an appearance for all defendants, the defendants' pleadings were in effect joined. On the same day, Eric Hohenthal filed a notice of intent to contradict Cormier's claims of evidence. He also filed a motion to set aside the default for failure to plead on the following grounds: the defendant failed to appear for the reason that this case began as a small claims case, and he is not a resident of Connecticut and does not own any property in the state and notified the clerk of that fact; the defendant did not receive timely notice of the motion for default from the plaintiff; and the defendant wishes to be given an opportunity to present defenses and/or grounds for dismissal of the action. In addition, he filed a motion to dismiss the case pursuant to Practice Book § 24-2 because when the action was commenced as a small claims matter, the defendant was not a resident of Connecticut and did not own property in the state.
See Rommell v. Walsh, 127 Conn. 16, 15 A.2d 6 (1940), multiple defendants were represented by separate attorneys, some of whom failed to file appearances. In filing the notice to appeal, only one attorney properly filed the notice. The court held that "[i]n such a case as this, notice of appeal by one of the defendants would be as effectual to stay proceedings as a notice filed by both."
See also PRI Capital Group v. Eastern Capital Funding, LLC, 90 Conn.App. 1, 8, 878 A.2d 342 (2005) (Emphasis added):
"Although there is no question that the plaintiff submitted a written motion, the Chance defendants nevertheless seize on the term written motion, arguing that it signifies the requirement of a separate written motion for each nonsuit opened. Specifically, they argue that, given the dates stated in the plaintiff's motion, it applies more obviously to the Eastern defendants and, therefore, no written motion to open has been filed against them. The court, however, already reached the conclusion, which is beyond our limited jurisdictional reach, that the motion applied to both groups of defendants. The Chance defendants cite no authority, nor can we find any, for the proposition that a court cannot open two judgments of nonsuit by granting one written motion. In fact, trial courts routinely grant single motions that affect the rights of multiple parties. We accordingly conclude that a court has the authority under § 52-212(a) to open multiple judgments of nonsuit by granting a single motion to open."
On December 1, 2006, Cormier filed an objection to the motion for summary judgment.
On January 3, 2007, the court heard the motion for summary judgment, the motion to set aside the default, and the motion to dismiss. At the hearing, counsel for the defendants argued that it is the position of the Hohenthals that the instant action is the exact same claim that Cormier made in Docket No. CVH-7066.
II FACTS
In his August 24, 2006 complaint, the plaintiff alleged the following facts relating to his security deposit claim.
The defendants Eleanor Hohenthal and Eric E. Hohenthal were the owners (landlords) of the premises known as 8 Proctor Road a/k/a 472 Center Street in the Town of Manchester and the State of Connecticut. The plaintiff David Cormier leased the premises from the defendants on or about March 1, 1992 for a term of 60 months The lease ended March 311997. The plaintiff continued to occupy the premise under the hold over clause (20th of the contract) on a month-to-month basis until May 30, 2003. On or about March 1, 1992 the plaintiff deposited with the defendants (landlord) the sum of $1,600.00 as security deposit per the 22nd clause of the contract. The plaintiff vacated the premises and notified the landlord by mail on or about May 31, 2003 of my forwarding address. And requested the security deposit to be returned with interest per Connecticut General Statues 47a-21. The defendants failed to acknowledge my request and or refund my deposit within the 30-day time period stipulated by the statue stated above. The defendants failed to provide written or verbal notification of any deductions from the deposit per CT general statues. On July 15, 2003 a civil complaint summons was served by the defendants to the plaintiff for arrearage rent and taxes of $6,237.98. On or about March 31, 2006 full payments were made to the defendants per order of the court thusly closing the docket HSSP 122997. None of the funds paid to the defendant by the plaintiff were derived from or off set from the security deposit held in escrow by the defendant.
III DISCUSSION A Motion to Set Aside Default for Failure to Plead
Practice Book § 17-42 provides: "A motion to set aside a default where no judgment has been rendered may be granted by the judicial authority for good cause shown upon such terms as it may impose. As part of its order the judicial authority may extend the time for filing pleadings or disclosure in favor of a party who has not been negligent. Certain defaults may be set aside by the clerk pursuant to Sections 17-20 and 17-32."
After due consideration, the court finds that Eric Hohenthal has satisfied the requirements of Practice Book Sec. 17-42. Therefore, the motion to set aside default for failure to plead is granted.
B Motion for Summary Judgment
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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. 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 the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Citations omitted, internal quotation marks omitted) Cogan v. Manhattan Auto Financial, 276 Conn. 1, 6-7, 882 A.2d 597 (2005).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45] . . ." (Citations omitted; internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2004).
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist . . . As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits . . . [T]he party opposing . . . a motion [for summary judgment] must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . It is not enough . . . for the opposing party merely to assert the existence of . . . a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment] . . . Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . ." Bowen v. 707 On Main, Superior Court, judicial district of New Haven at Meriden, Docket No. CV02 0282643 (Tanzer, J.; February 24, 2004) ( 2004 Ct.Sup. 2224, 2225-226.)
"A `genuine' issue has been variously described as a `triable,' `substantial' or `real' issue of fact; . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the `genuine issue' aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A `material' fact has been defined adequately and simply as a fact which will make a difference in the result of the case . . .'Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them . . . summary judgment is to be denied where there exist genuine issues of fact and inferences of mixed law and fact to be drawn from the evidence before the Court." (Citations omitted; internal quotation marks omitted.) United Oil Company v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596 (1969).
"Generally speaking, summary judgment procedure is an attempt to dispose of cases involving sham or frivolous issues in a manner which is speedier and less expensive for all concerned than a full-dress trial . . . It is, however, apt to be ill adapted to cases of a complex nature or to those involving important public issues, which often need the full exploration of trial . . . It is also well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions . . . It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised." (Citations omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, supra, 158 Conn. 375-76.
(1) Res Judicata
"[S]ummary judgment is an appropriate vehicle for raising a claim of res judicata." Joe's Pizza, Inc. v. Aetna Life Casualty Co., 236 Conn. 863, 867 n. 8, 675 A.2d 441 (1996). "Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment was the appropriate method for resolving a claim of res judicata." (Citation omitted.) Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993). "Claim preclusion, sometimes referred to as res judicata, and issue preclusion, sometimes referred to as collateral estoppel, are first cousins. Both legal doctrines promote judicial economy by preventing relitigation of issues or claims previously resolved . . . The concepts of issue preclusion and claim preclusion are simply related ideas on a continuum, differentiated, perhaps by their breadth, and express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest . . .
"The subtle difference between claim preclusion and issue preclusion has been so described: [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits . . . [I]ssue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit . . . Under claim preclusion analysis, a claim — that is, a cause of action — includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose . . . Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made." (Citations omitted; internal quotation marks omitted.) LaSalla v. Doctor's Associates, Inc., 278 Conn. 578, 589-90, 898 A.2d 803 (2006).
"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 tribunal of concurrent jurisdiction . . . If the same cause of action is again sued on, 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." (Citations omitted.) McCue v. Birmingham, 88 Conn.App. 630, 635, 870 A.2d 1126 (2005).
In McCue, the trial court concluded that the same claim at issue in the second action was also at issue in the first action. Id., 636. The judgment in the first action was rendered on the merits, and the parties had an opportunity fully and fairly to litigate the same claims and issues in the first action that the plaintiffs were attempting to litigate in this second action. Id., 636. In affirming the trial court's granting of the defendant's motion for summary judgment based on res judicata, the Appellate Court held that: "[E]ndless litigation leads to confusion or chaos . . . A cause of action is that single group of facts that is claimed to have brought about an unlawful injury to the plaintiff and that entitles the plaintiff to relief . . . Even though a single group of facts may give rise to rights to several different kinds of relief, it is still a single cause of action." Id., 636.
In deciding this motion for summary judgment, the court must consider the two prior Housing Court actions between the parties relating to Cormier's tenancy. Both parties referred to these actions, and the court takes judicial notice of the prior cases.
In Docket No. HDSP-122997, Eric and Ellen Hohenthal filed a summary process case seeking to evict Cormier based on nonpayment of the rent. The action was filed on February 14, 2003. On March 10, 2003, the court entered judgment pursuant to a stipulated agreement between the parties. Judgment was entered for the Hohenthals with a non-final stay of execution through August 2, 2003. The arrearage was $6,648.59.
In the first action, CVH-7066, Eric and Norman Hohenthal filed an action in damages for unpaid rent and taxes relating to the eviction case brought by Eric and Eleanor Hohenthal. The action was filed on July 21, 2003. Cormier filed an amended answer and counterclaim on November 12, 2003, alleging: "4. On or about March 1992 the defendant deposited with the plaintiff $1,600. The plaintiff has not returned the security deposit, and interest of $1,200 to the plaintiff." The matter was heard by the court on December 3, 2003. At the hearing, Cormier was given the opportunity to present evidence, testify, and cross-examine the Hohenthals' witnesses. On December 17, 2003, Judge dos Santos issued a memorandum of decision. After considering Cormier's November 12, 2003 pleading, the court entered judgment for the Hohenthals in the amount of $5,948.59.
Cormier appealed Judge dos Santos' decision. In his preliminary statement of issues, filed on January 2, 2004, Cormier raised for review: "8. Whether the court erred on granting a final judgment when there was a counter claim on file and it, there were no objections on filed with the court regarding the counter claim by the plaintiff." On May 27, 2005, the Appellate Court heard the appeal and considered the claim made in Cormier's November 12, 2003 pleading. See p. 9-13. On June 28, 2005, the Appellate Court affirmed the judgment.
The second action, CVH-7414, was filed by Cormier against Eleanor and Eric Hohenthal seeking return of his security deposit. The matter was transferred to the regular civil docket. On August 24, 2006, Cormier filed the instant complaint.
Having reviewed the relevant pleadings, a linchpin common to the actions is the security deposit claim relating to Cormier's tenancy. There is a single group of facts on which Cormier's claim for relief rests. As a result, there was a common cause of action in both the first and second actions. The security deposit claim was already made in the first action. In addition, the security deposit claim related to a cause of action that might have been made in the first action. The first action was decided on the merits, and the judgment was affirmed. The parties are essentially the same in both actions. The parties had the opportunity in the first action to litigate fully and fairly the claim raised in the second action. Cormier is prevented from pursuing any claims relating to the cause of action which were actually made or might have been made. Accordingly, the second action, CVH-7414, is barred by the doctrine of res judicata.
IV CONCLUSION AND ORDER
For the above-stated reasons, the motion for summary judgment is granted. Since the court's granting of the motion for summary judgment is dispositive of the case, the court does not need to decide the motion to dismiss.