Braca v. Utzler, CV–11–5029410–S.

Citation52 Conn.Supp. 242,41 A.3d 1210
Decision Date30 June 2011
Docket NumberNo. CV–11–5029410–S.,CV–11–5029410–S.
PartiesJohn A. BRACA, Jr. v. Robert UTZLER.*
CourtSuperior Court of Connecticut

OPINION TEXT STARTS HERE

John A. Braca, Jr., pro se, the plaintiff.

Robert Utzler, pro se, the defendant.

DOOLEY, J.

PRELIMINARY STATEMENT

This action alleging various intentional torts arises out of a failed investment by the defendant, Robert Utzler (“Utzler”), in the plaintiffs real estate development/construction business. Previously, Utzler sued the plaintiff, John A. Braca, Jr. (“Braca”), and a judgment was rendered in Utzler's favor in that action. Braca appealed that decision but the judgment was affirmed by the Appellate Court. Thereafter, Braca commenced this action against Utzler alleging, inter alia, fraud, civil RICO [Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.], extortion, CUTPA [Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq.] violations and vexatious litigation/abuse of process. 1 Utzler filed a motion for summary judgment as to the remaining counts on the grounds that four of the remaining counts are barred by the applicable statute of limitations as well as the doctrine of res judicata. He further seeks summary judgment on the vexatious litigation/abuse of process claim on the basis that he prevailed in the underlying litigation which is alleged to be vexatious and an abuse of process, and, therefore, cannot, as a matter of law, be liable for vexatious litigation or abuse of process. The plaintiff filed an objection to the motion for summary judgment.

For the reasons set forth below, the motion is GRANTED.

STANDARD OF REVIEW

A party seeking summary judgment has the very heavy burden of demonstrating the absence of any genuine issue of material facts, which, under applicable principles of law, entitle him to judgment as a matter of law. Practice Book § 17–44; Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Conversely, the party opposing such a motion must provide an evidentiary foundation to show the existence of a genuine issue of material fact. Id. This evidentiary foundation must be demonstrated with counter-affidavits and concrete evidence. Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 663, 691 A.2d 1107 1997). A party's conclusory statements may not be sufficient to establish the existence of a disputed material fact, even if in affidavit form. Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).

Supporting and opposing affidavits must be made on personal knowledge and must set forth such facts as would be admissible in evidence. Practice Book § 17–46.2 Indeed, only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).

“The function of the trial court is to determine ... whether an issue of fact exists but not to try that issue if it does exist.” Michaud v. Gurney, 168 Conn. 431, 433, 362 A.2d 857 (1975).

PROCEDURAL HISTORY

By writ of summons and complaint, Utzler commenced an action against Braca in May, 2006, alleging, inter alia, that his business investment with Braca was the result of fraudulent inducement; that Braca breached his fiduciary duty to Utzler; and that Braca violated CUTPA and made intentional misrepresentations to Utzler in connection with Utzler's investment. Utzler v. Braca, Superior Court, judicial district of Fair-field, Docket No. CV–06–5003257. The case was tried to the court over many days, and judgment entered in favor of Utzler. Damages were assessed in the amount of $500,000 (compensatory), and the court awarded punitive damages and attorneys fees in the amount of $140,000. Braca appealed the decision to the Appellate Court, which affirmed in part the decision and judgment of the trial court. Utzler v. Braca, 115 Conn.App. 261, 972 A.2d 743 (2009).3 Herein, this litigation will be referred to as “the first litigation.”

By way of writ of summons and complaint filed January 4, 2011, Braca commenced this action against Utzler. The complaint alleges fraud in connection with the investment of funds by Utzler with Braca; extortionate means used to collect those funds; civil RICO premised on the allegation that the funds were amassed through tax evasion and criminal activity; a CUTPA violation; and vexatious litigation/abuse of process in connection with the first litigation.

ISTATUTE OF LIMITATIONS—COUNTS ONE, TWO, FOUR AND FIVE

“Summary judgment may be granted where the claim is barred by the statute of limitations.” Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). “Summary judgment is appropriate on statute of limitation grounds when the material facts concerning the statute of limitations are not in dispute.” Id.; Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).

Here, the defendant asserts that these actions, with the exception of the vexatious litigation suit, accrued no later than the filing of the complaint by Utzler against Braca in May, 2006. He asserts that all of the allegations in the complaint, though not identified by particular date, necessarily predate the first litigation or culminate with the filing of the complaint in the first litigation.

ACounts One, Two and Five

The statute of limitations for torts (other than acts of negligence) is located at General Statutes § 52–577, which provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” Similarly, our CUTPA statute has a three year statute of limitation. General Statutes § 42–110g (f) ([a]ny action under this section may not be brought more than three years after the occurrence of a violation of this chapter”).

“When conducting an analysis under § 52–577, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed.... The three year limitation period of § 52–577 begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury.” (Internal quotation marks omitted.) Farnsworth v. O'Doherty, 85 Conn.App. 145, 149–50, 856 A.2d 518 (2004).

A review of the complaint confirms that the factual allegations in support of these causes of action stem from the defendant's investment of money with the plaintiff, which investment was the subject of the prior litigation. The complaint is difficult to understand, and the allegations, while sweeping in content, are woefully short on specific allegations of wrongdoing or dates for same. However imprecise the allegations are as to particular acts of the defendant, it is clear that the events began with the investment in 2003. (Complaint, Paragraph 1.) Thereafter, the complaint addresses “extortionate” efforts to recoup the investment, apparently referring to the bringing of the first litigation. The RICO and CUTPA claims are similarly premised. Thus, it appears clear that the acts complained of both predated and thereafter culminated in the filing of the complaint in the first litigation. As such, the last possible date upon which the tortious conduct allegedly occurred would be the filing of the complaint in the first litigation—May, 2006. As such, the statute of limitations expired in May, 2009, well before this action was commenced.

Braca argues that the statute of limitations did not commence until the Appellate Court affirmed the judgment of the trial court in the first litigation on June 23, 2009.4 He cites no authority for this proposition, and this court has found none. His assertion, unsupported by authority or any analysis or explanation, does not inject a question of fact where none exists. The motion for summary judgment as to counts one, two, and five is granted.5

BCount Four—Civil RICO

The statute of limitations for the bringing of a civil RICO claim is four years. Agency Holding Corp. v. Malley–Duff & Associates, Inc., 483 U.S. 143, 156, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987). As set forth above, the alleged criminal activity (tax evasion, extortion) all occurred prior to or culminated in the filing of the complaint in the first litigation. This case was not commenced within four years thereof. Summary judgment as to count four is granted.

IIRES JUDICATA—COUNTS ONE, TWO, FOUR AND FIVE

The defendant also asserts that all remaining counts, with the exception of count seven, which alleges vexatious litigation/abuse of process, are barred by the doctrine of res judicata. The claim is that many of these issues were decided in the first litigation. For those that were not explicitly decided in the defendant's favor, he argues, they are barred insofar as they could have been raised in the first litigation but were not.

The doctrine of res judicata, also known as claim preclusion, “prevents a litigant from reasserting a claim that has already been decided on the merits.... 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.... Scalzo v. Danbury, 224 Conn. 124, 127–28, 617 A.2d 440 (1992); see DeLaurentis v. New Haven, 220 Conn. 225, 239, 597 A.2d 807 (1991); Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 43, 526 A.2d 1329 (1987). The doctrine of res judicata [applies] ... 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); and promotes judicial economy by preventing...

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1 cases
  • Braca v. Utzler, No. 33701.
    • United States
    • Appellate Court of Connecticut
    • March 27, 2012
    ...of the facts and the applicable law on the issue. We therefore adopt the decision of the trial court as our own. See Braca v. Utzler, 52 Conn.Supp. 242, –––A.3d –––– (2011). It would serve no useful purpose for this court to repeat the discussion contained therein. See Norfolk & Dedham Mutu......

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