Opinion
No. CV06-4005275 S
October 24, 2008
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT #148
I. PROCEDURAL BACKGROUND
Defendant Christiana Bank and Trust Company, as Trustee for the Sequoia Funding Trust (Christiana) has filed a motion for summary judgment (#148) as to the plaintiff Lisa Lind-Larsen arguing that all claims against Christiana are barred by, alternatively, res judicata, collateral estoppel or the law of the case. On July 15, 2008, the plaintiff filed an objection thereto. The matter was heard at short calendar on July 21, 2008.
The claims of the plaintiff were originally set out in an eleven-count complaint as to the defendants Bank of America, N.A., and Ingomar Limited Partnership (Ingomar). The first count alleged breach of an agreement purported to have been made in August 1987, which was breached on or about May 1991. The second count alleged negligent conduct with respect to a closing in April 1992. The third count incorporated the facts alleged in the first and second counts and claims bad faith. The fourth count incorporated the facts alleged in the first, second, and third counts and suggests a claim of tortious interference with contract. The fifth count claimed a violation of the Connecticut Unfair Trade Practices Act. The sixth count alleged pain and suffering. The seventh count alleged a breach of contract which occurred on or about September 12, 1992. The eighth count alleged a breach of contract/agreement which took place on or about February-March 1994. The ninth count alleged bad faith and fraud with respect to an application to discharge a lis pendens. The tenth count alleged fraud which took place on or about September 27, 1997. The eleventh count incorporated all of the previous counts and claims that, based on General Statutes § 42a-3-306, the successors in interest, including Ingomar, accepted the assignment of the mortgage on the plaintiff's residence subject to all of the ongoing litigation. Ingomar filed an answer and special defenses (#112) which addressed all of the counts of the plaintiff's complaint.
Shortly following the filing of the complaint, the defendant Bank of America moved for, and the court granted, summary judgment on all counts. (See Ruling on Summary Judgment, Schuman, J. #105.25.) The defendant Bank of America had argued in part that the court's summary judgment ruling in favor of the defendant in Lind-Larsen v. Fleet National Bank of Connecticut, Docket No. X02-CV97-01596625 (June 26, 2002, Sheldon, J.), was res judicata as to plaintiff's claims. In the present case, Judge Schuman noted that the "pro se plaintiff concedes that the present case is the same as her 1997 suit" (i.e., Lind-Larsen v. Fleet National Bank of Connecticut) and ruled that "res judicata bars all claims that were or could have been brought in that case which encompasses the entire complaint here." He further pointed out that the complaint in Lind-Larsen v. Fleet National Bank of Connecticut, originally filed in 1997, "ended with the entry of summary judgment for the defendant and thus failed on the merits." The present suit was filed in February 2006. Noting the repeated attempts of the plaintiff to bring essentially the same claim, Judge Schuman concluded: "In addition, the plaintiff should understand that, whether or not she agrees with the result, her lawsuit, first filed in 1993, is over. She cannot continue indefinitely to file the same lawsuit, or subtle variations of it. The court is not powerless to prevent this sort of abuse."
Judge Sheldon's decision granting summary judgment in favor of Fleet National Bank of Connecticut, originally under docket no. CV97-0327962 S, was upheld on appeal; see 84 Conn.App., 1, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514 (2004).
In his decision, Judge Schuman noted that the 1997 suit was not the "original" suit. "Rather, the original suit was filed by the plaintiff and dismissed by the court in 1996 . . ." Thus, the pending action is the third incarnation of plaintiff's claims.
Like Bank of America, N.A., the defendant Ingomar moved for summary judgment (#116) against the plaintiff arguing that the law of the case, res judicata, collateral estoppel, and the statute of limitations barred the plaintiff's case. The court (Mintz, J.) granted the motion on July 17, 2006.
Thereafter, on August 3, 2006, the plaintiff filed a motion to cite in party defendant (#125) asking the court to cite in Christiana because the "defendant Ingomar Limited Partnership, has assigned its interest, as evidenced by assignment dated May 17, 2006 . . ." The motion asked that Christiana be summoned in as a defendant "in order that the Complaint may be amended accordingly." Although summary judgment had been granted to Ingomar, the court (Mintz, J.) granted the motion to cite in as the amended complaint filed by the plaintiff attempted to make substantive claims against Christiana, alleging that the assignment from Ingomar to Christiana constituted a breach of the contract between plaintiff and the original mortgagee through its successor in interest, Christiana. The court directed the plaintiff to amend its complaint by September 18, 2006.
The plaintiff has alleged in all variations of her complaint that there was an ongoing breach of contract between the plaintiff and the (original and subsequent) holders of the note and mortgage.
On June 12, 2007, the plaintiff also filed a motion to cite in first named defendant successor to Shawmut Bank (#144) which was denied by the court (Shaban, J.).
To address this claim Christiana filed a motion for permission to file a motion for summary judgment, the matter having been scheduled for trial. The motion was denied by the court but that ruling was ultimately vacated and permission to file was granted under the court's trial management authority. (See #170, Shaban, J.) McNamara v. Tournament of Players Club of Connecticut, Inc., 270 Conn. 179, 851 A.2d 1154 (2004). The plaintiff then filed on December 14, 2007 a request for leave to file a second amended complaint (#154). In response, the defendant filed a motion for extension of time to plead (#155) and then filed a motion for judgment (#156) which was granted by the court (Moraghan, J.) but ultimately vacated (see #170). In her request for leave to file the second amended complaint, the plaintiff specifically stated that "[t]he Second Amended Complaint states no new or added cause of action." In fact, in the body of its proposed complaint, the plaintiff placed an introductory paragraph which stated in part that "[t]his is an action for an ongoing breach of contract by Shawmut Bank and successors to Connecticut National Bank and certain securities investment groups claiming to be successors and parties in interest." A prior (first) amended complaint had contained similar language stating that "[t]his is an action for ongoing continuous breach of contract by the successors to Connecticut National Bank." (See pleading #130.)
The full history of assignments of the note and mortgage following the original loan to Connecticut National Mortgage Company, as referenced in the pleadings by both parties is as follows: 1. Shawmut Mortgage Company as successor in interest to The Connecticut National Mortgage Company to the Connecticut National Bank; 2. The Connecticut National Bank to GE Capital Asset Management Corporation; 3. GE Capital Asset Management Corporation to OCI Mortgage Corporation; 4. OCI Mortgage Corporation to Girard Savings Bank, FSB; 5. First Bank of Beverly Hills, FSB fka Girard Savings Bank, FSH to WMFC 1997-4, Inc.; 6. WMFC 1997-4, Inc., to Ocwen Federal Bank FSB; 7. Ocwen Federal Bank, FSB to Mortgage Electronic Registration Systems, Inc., as nominee for St. Francisville, LLC. 8. Mortgage Electronic Registration Systems, Inc., as nominee for St. Francisville, LLC to Ingomar Limited Partnership; 9. Ingomar Limited Partnership to Christiana Bank and Trust Company, as trustee of the Sequoia Funding Trust. (See Exhibits I through R, defendant's motion for summary judgment (#148 and 148.25) and Exhibit 3 to plaintiff's objection to the pending motion for summary judgment dated July 14, 2008.) The sequence of assignments was also recited in previous filings by the parties; see pp. 6-9, memorandum of law of the defendant Ingomar in support of its June 1, 2006 motion for summary judgment (#116); Exhibit 2 to plaintiff's memorandum of law in opposition to Ingomar's motion for summary judgment (#117) and Exhibit #1 to plaintiff's supplemental memorandum (#118).
In addressing the current motion for summary judgment the court takes judicial notice of the prior pleadings filed by the parties. In those pleadings, the plaintiff has acknowledged that there was an assignment of the note and mortgage held by Ingomar Limited Partnership to Christiana (see #117, #119, #121, #131 and #164.05 among others).
II. LAW
"The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried," Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "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." Mazurek v. Great American Ins. Co., 284 Conn. 16, 26, 930 A.2d 682 (2007). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"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." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., supra, 284 Conn. 26-27. "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]." Zielinski v. Kotsoris, 279 Conn. 312, 319, 901 A.2d 1207 (2006). The Connecticut courts have clearly stated that "[a] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment" (Internal quotation marks omitted.) Anderson v. Schoenhorn, 89 Conn.App. 666, 670, 874 A.2d 798 (2005). Instead, "the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of a material fact." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 757, 905 A.2d 623 (2006).
III. DISCUSSION
Whether the amended complaint or the second amended complaint is considered to be the operative complaint, it is clear that by her own pleadings, the plaintiff considers the current action to be one where the successors in interest are in direct privity with the original mortgagee. Because Christiana was cited in as a successor in interest to Ingomar, it had no more or less rights than Ingomar had at the time the motion for summary judgment was entered by Judge Mintz in Ingomar's favor and against the plaintiff. The assignment of mortgage (Defendant's Exhibit B) states that the assignment transferred to Christiana from Ingomar "all of Assignor's [Ingomar's] right, title and interest, of any kind whatsoever, including . . . all rights accrued or to accrue under [the] mortgage, and in any and all related security instruments[.]"
Plaintiff filed a request for leave to file a third amended complaint (#159). However, defendant filed an objection thereto (#161) which was sustained by the court "for the reasons stated in the [memorandum of decision] of Judge Schuman on 4/18/06" (Sheedy, J.). The memorandum of decision referred to is the one rendered relative to the motion for summary judgment filed by Ingomar.
In that the rights and obligations of Christiana were identical to those of Ingomar, and there existed privity between Ingomar and Christiana, the effect of the summary judgment granted as to Ingomar is equally applicable to and binding upon Christiana. As a result, the principles of res judicata, collateral estoppel and law of the case are all applicable to the issues and claims set forth in plaintiff's complaint.
A. Res Judicata
[U]nder the doctrine of res judicata, or claim preclusion, a former 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.'" (Emphasis omitted.) Linden Condominium Ass'n., Inc. v. McKenna, 247 Conn. 575, 594, 726 A.2d 502 (1999). Put in simpler terms, "[a] plaintiff cannot, under the doctrine of res judicata, withhold certain claims from one action and then raise those claims in a later action when an adequate opportunity existed to raise all claims in one action." Daoust v. McWilliams, 49 Conn.App. 715, 726, 716 A.2d 922 (1998). Thus, "[t]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . ." (Internal quotation marks omitted.) Sotavento Corp. v. Coastal Pallet Corp., 102 Conn.App. 828, 834, 927 A.2d 351 (2007).
For purposes of res judicata, "[a] judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose." (Internal quotation marks omitted.) Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589, 674 A.2d 1290 (1996). This is true "regardless of what additional or different evidence or legal theories might be advanced in support of it." Id.
"Res judicata . . . should be applied as necessary to promote its underlying purposes. These purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose . . ." (Internal quotation marks omitted.) Efthimiou v. Smith, 268 Conn. 499, 506, 846 A.2d 222 (2004). "The judicial [doctrine] of res judicata . . . [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate." Cumberland Farms, Inc v. Groton, 262 Conn. 45, 59, 808 A.2d 1107 (2002).
"Because res judicata . . . may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim of res judicata." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993). In appropriate circumstances, the court may invoke res judicata sua sponte. Tucker v. Pace Investments Associates, 32 Conn.App. 384, 391, 629 A.2d 470, cert. denied, 228 Conn. 906, 634 A.2d 299 (1993), cert. denied, 510 U.S. 1196, 114 S.Ct. 1305, 127 L.Ed.2d 657 (1994).
The court finds that all three purposes are at work here and warrant the application of the principle of res judicata in this instance. The claims which form the underpinnings of the plaintiff's entire complaint, both original and as amended, are barred by virtue of the summary judgment entered by the court (Sheldon, J.) in favor of Christiana's predecessors in the 1997 case, Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn.App. 1, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514 (2004), [known at the trial court level by complex litigation docket number X02 CV 97-0159662S]. In that case the court granted the motion for summary judgment filed by Ocwen Federal Bank, FSB. The note and mortgage as to the plaintiff's property was subsequently assigned by Ocwen Federal Bank, FSB, to Mortgage Electronic Registration Systems as nominee for St. Francisville, LLC. They were then further assigned to Ingomar placing it in privity with Ocwen Federal Bank, FSB by virtue of the successive transfer of the interests in the note and mortgage. As noted previously, Ingomar's interest was subsequently assigned to Christiana which placed Christiana in privity with Ingomar and its predecessors. The claims made by the plaintiff in the 1997 action have been reasserted by the plaintiff in this action. Only the identity of the defendant has changed by virtue of the assignments. Judgment for the defendant has entered in the prior action as to all of these claims and therefore further litigation in this action is barred by res judicata.
As stated by Judge Schuman in his memorandum of decision granting the Bank of America's motion for summary judgment in the instant matter, res judicata bars all of the claims that "were or could have been brought in that [1997] case, which encompasses the entire complaint here."
B. Law of the Case
Christiana's motion for summary judgment may also be granted because this court's prior decisions granting the motions for summary judgment (#105.25 and #116) in favor of Bank of America, N.A. and Ingomar, respectively, are the law of the case.
"The law of the case [doctrine] . . . expresses the practice of judges generally to refuse to reopen what has been decided . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case . . ." Lewis v. Gaming Policy Board, 224 Conn. 693, 697, 620 A.2d 780 (1993).
Where an issue has been ruled on in the course of litigation it is considered the law of the case and is not lightly changed. McCarthy v. McCarthy, 55 Conn.App. 326, 332, 752 A.2d 1093 (1999), cert. denied, 252 Conn. 923, 752 A.2d 1081 (2000). The doctrine is a flexible one, but the reasons behind it are compelling. "A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge." Bowman v. Jack's Auto Sales, 54 Conn.App. 289, 293, 734 A.2d 1040 (1999).
"The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked." Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). " New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored . . . But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause." (Emphasis added; internal quotation marks omitted.) Id. However, "[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." Id.
Christiana is the successor in interest to Ingomar which has already obtained summary judgment against the plaintiff. As assignee of the mortgage and note relative to the plaintiff's property, Christiana is in privity with Ingomar and as such has acceded to both the burdens and benefits of that status. Because the interests of Christiana are the same as those of its predecessors and no new causes of action have been alleged by the plaintiff, the law of the case compels the court to enter a ruling on the present summary judgment motion consistent with those that have previously entered as to Bank of America, N.A. and Ingomar. It is also to be noted that in her response to the motion for summary judgment, the plaintiff has provided no evidence of a new or overriding circumstance to justify departure from the court's earlier rulings.
While the burden is, of course, upon the movant to show there is no genuine issue of material fact, once done, the non-movant is required to provide evidence to demonstrate there does exist a genuine issue of material fact, See, respectively, Mazurek v. Great American Insurance Co., supra, 284 Conn. 26-27, and, Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005). Nothing has been provided by the plaintiff which would deter the applicability of the law of the case doctrine in this matter.
Although no request has been made to overrule or reopen a prior ruling of the court, to deny the motion for summary judgment under these circumstances would have the net effect of doing so. As the issues raised by the plaintiff have already been decided within the context of this action (as well as in a previous action) the court will not enter a ruling inconsistent with those previously issued.
C. Collateral Estoppel
The defendant has also argued that the plaintiff is collaterally estopped from proceeding with its claim. "Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001). The doctrine of collateral estoppel is similar to res judicata in that both "protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation . . ." (Internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 554, 848 A.2d 352 (2004). "Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas in a continuum. [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." (Internal quotation marks omitted.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 812, 695 A.2d 1010 (1997). Thus, while res judicata bars the relitigation of claims that either actually were made or could have been made in the prior action, collateral estoppel bars only those issues that actually were litigated in the prior action. August v. Moran, 50 Conn.App. 202, 208 n. 7, 717 A.2d 807 (1998). Collateral estoppel may be invoked against a party to a prior proceeding or against those in privity with that party. See Willard v. Travelers Ins. Co., 247 Conn. 331, 336, 721 A.2d 894 (1998). "[T]he `crowning consideration' in collateral estoppel cases and the basic requirement of privity [is] that the interest of the party to be precluded must have been sufficiently represented in the prior action so that the application of collateral estoppel is not inequitable." Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 818. Even with the addition of Christiana to the present case, the issues involved remained unchanged and were litigated previously. On this point, Judge Schuman, in his ruling on the summary judgment motion as to Bank of America, N.A., found that "the pro se plaintiff concedes that the present case is the same as her 1997 suit." Lind-Larsen v. Fleet National Bank of Connecticut, supra, 84 Conn.App. 1.
"Historically, the doctrine of collateral estoppel, or issue preclusion, required mutuality of the parties. The general rule of issue preclusion is that `[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.'" (Emphasis in original.) Labbe v. Pension Commission, 239 Conn. 168, 186, 682 A.2d 490 (1996). "Under the mutuality rule, [p]arties who were not actually adverse to one another in a prior proceeding could not assert collateral estoppel against one another in a subsequent action." (Internal quotation marks omitted.) Id. "The mutuality requirement has, however, been widely abandoned as an ironclad rule . . . [T]he [mutuality] rule will no longer operate automatically to bar the use of collateral estoppel . . ." (Citation omitted; internal quotation marks omitted.) Id.
The issues in this case have been fully and fairly litigated between the parties in a prior action (and within the present action as well). Accordingly, the plaintiff is collaterally estopped from contesting the issues further.
IV. CONCLUSION
The common premise as to all three theories which compel the granting of summary judgment is that the rights and obligations of Christiana were, and are, identical to those of Ingomar. There exists privity between the two as well as with their predecessors in interest. The assignment from Ingomar to Christiana and Christiana's relationship with the plaintiff subsequent to the assignment created no new facts or legal theories of liability which have not already been addressed or could have been addressed in principle. Hence, the motions for summary judgment granted to Bank of America, N.A., and to Ingomar in the present action, as well as the summary judgment in Lind-Larsen v. Fleet National Bank of Connecticut, supra, 84 Conn.App. 1, are equally applicable to the parties. The citing in of Christiana simply placed it in the shoes of Ingomar. This is underscored by plaintiff's own attempts to repeatedly amend its complaint wherein she specifically pled that there were no new causes of action being brought. Put another way, all the claims and issues that had previously been pleaded (and decided against the plaintiff) are the same claims and issues she now wishes to pursue against Christiana. This cannot now be done for to allow the action to proceed would simply allow repetitive litigation, invite potential inconsistent judgments which would undermine the integrity of the judicial system and unnecessarily subject Christiana to harassment by vexatious litigation.
For example, the seventh count of the second amended complaint carries a heading of "civil larceny" which is not found in the original complaint. However, the plaintiff filed the second amended complaint with the specific reference that it stated "no new or added cause of action." More importantly, a review of the language of that count finds that it incorporates all of the prior counts of the complaint and refers to the actions of the original mortgagee and its successors. No matter how plaintiff characterizes the claim, if it had not been previously addressed, it clearly could have been addressed in the prior pleadings and action.
See p. 4 above and plaintiff's requests for leave to amend complaint #154 and #159. An objection to the request for leave to amend to file a third amendment complaint was sustained. See #159, #161 and footnote 6 above.
Because res judicata, the law of the case, and collateral estoppel preclude the consideration of the issues and/or claims raised, there remains no genuine issue of material fact between the parties. Christiana's motion for summary judgment is granted.