Cadle Co. v. Ogalin

• Citation: 167 A.3d 402,175 Conn.App. 1
• Decision Date: 25 July 2017
• Docket Number: AC 38635.
• Court: Appellate Court of Connecticut
• Parties: The CADLE COMPANY v. Frank F. OGALIN

175 Conn.App. 1

167 A.3d 402

The CADLE COMPANY

v.Frank F. OGALIN

AC 38635.

Appellate Court of Connecticut.

Argued March 9, 2017

Officially released July 25, 2017

Roy W. Moss, for the appellant (defendant).

Paul N. Gilmore, with whom, on the brief, was Christopher A. Klepps, for the appellee (plaintiff).

DiPentima, C.J., and Beach and Westbrook, Js.^*

DiPENTIMA, C.J.

The defendant, Frank F. Ogalin, appeals from the judgment of the trial court rendered in favor of the plaintiff, The Cadle Company. On appeal, the defendant claims that the court improperly (1) granted the plaintiff's motion to strike his second special defense, (2) granted the plaintiff's motion for summary judgment and (3) awarded postjudgment interest to the plaintiff. We disagree, and, accordingly, affirm the judgment of trial court.

The following facts and procedural history are relevant to our discussion. On September 25, 2013, the plaintiff commenced the present action via a two count complaint alleging a common-law action on a judgment and an action on a judgment under principles of unjust enrichment.¹ Specifically, the complaint alleged that the plaintiff was the assignee of a judgment rendered against the defendant in the amount of $137,055.17 in a case titled Great Country Bank v. Ogalin , Superior Court, judicial district of Fairfield Docket No. CV–93–0303908–S, (March 15, 1994) (1994 judgment). The plaintiff claimed that the 1994 judgment remained unsatisfied and fully enforceable. The plaintiff sought the entry of a new judgment for the outstanding amount from the 1994 judgment, as well as postjudgment interest.

The defendant filed an answer and raised three special defenses with respect to the first count of the complaint. First, he claimed that the first count failed to state a cognizable cause of action. Second, he alleged that "[i]n 2013 [the] plaintiff obtained an order of weekly payments and wage and property executions in the action referred to in the first count. By virtue of pending postjudgment motions and proceedings, [the] plaintiff is seeking to collect the prior judgment. Under the foregoing circumstances, this action is duplicative, unfair, inequitable, vexatious, and oppressive against [the] defendant." Third, the defendant claimed that the plaintiff had not sought an order of payment or execution on the 1994 judgment until more than eighteen years had passed, and, therefore, the doctrine of laches barred the present action.

The plaintiff moved to strike the special defenses directed at count one of the complaint. The defendant filed a memorandum of law in opposition to the motion to strike. The court, Kamp, J. , held a hearing on September 15, 2014, on the plaintiff's motion to strike and granted the plaintiff's motion with respect to the first and second special defenses to count one. It denied the motion as to the third special defense alleging laches.

On April 23, 2014, the plaintiff filed a motion for summary judgment as to the first count of the complaint. The court denied this motion, without prejudice, on July 7, 2014. The plaintiff filed a second motion for summary judgment as to the first count on December 22, 2014. The defendant filed a memorandum in opposition to this motion on February 11, 2015. On June 10, 2015, the court, Hon. Richard P. Gilardi, judge trial referee, issued a memorandum of decision granting the plaintiff's motion for summary judgment.

The court first concluded that General Statutes § 52–598 authorized the present action on the 1994 judgment and that the plaintiff had commenced it timely. Next, the court considered the question of whether the present action was vexatious and oppressive. It reasoned that while a separate action on a judgment may be considered vexatious and oppressive, this type of action constituted a viable option for the plaintiff under our law. Additionally, the defendant had failed "to provide, nor has there been found, any support for the proposition that an action on a judgment is permitted only where a plaintiff establishes that the action is neither vexatious nor oppressive. To require otherwise would misconstrue the nature of an action on a judgment and place an additional burden on plaintiffs not contemplated by the law." Additionally, the court determined that the defense of laches did not apply to the present action because it was not a case brought in equity; further, even if laches did apply, the defendant failed to demonstrate an issue of fact as to whether he had been prejudiced by the lapse of time.

Finally, the court addressed the claim that postjudgment interest accrued from the 1994 judgment at the original contract rate of 9.75 percent. The defendant had countered that genuine issues of material fact existed as to whether the plaintiff was entitled to such interest. Relying on General Statutes § 37–1 and our Supreme Court's decision in Sikorsky Financial Credit Union, Inc. v. Butts , 315 Conn. 433, 438–45, 108 A.3d 228 (2015), the trial court concluded that postjudgment interest was mandatory at the statutory default rate of 8 percent.

On July 14, 2015, the court issued an "amended" memorandum of decision. It awarded the plaintiff $369,957.57, which consisted of the principal owed from the 1994 judgment in the amount of $137,055.17 and $232,902.40 in postjudgment interest, calculated from March 15, 1994 through June 15, 2015, at the statutory rate of 8 percent. Approximately five weeks later, the plaintiff moved for permission to withdraw count two of its complaint, which the court granted on October 29, 2015.² This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly granted the plaintiff's motion to strike his second special defense. This defense alleged that the plaintiff had taken steps, in 2013, to collect on the 1994 judgment via weekly payments, wage executions and property executions; the present action, therefore, was duplicative, unfair, inequitable, vexatious and oppressive. The plaintiff counters that the court properly struck the second special defense. We agree with the plaintiff.

We begin by setting forth our standard of review. "Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on [a motion to strike] is plenary.... A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike. The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.... In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." (Citations omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC , 64 Conn.App. 9, 12–13, 779 A.2d 198 (2001) ; see also Doe v. Hartford Roman Catholic Diocesan Corp. , 317 Conn. 357, 398, 119 A.3d 462 (2015) ; R.S. Silver Enterprises, Inc. v. Pascarella , 163 Conn.App. 1, 20, 134 A.3d 662, cert. denied, 320 Conn. 929, 133 A.3d 460 (2016).

The defendant's second special defense alleged that "[i]n 2013 [the] plaintiff obtained an order of weekly payments and wage and property executions in the action referred to in the first count. By virtue of pending postjudgment motions and proceedings, [the] plaintiff is seeking to collect the prior judgment. Under the foregoing circumstances, this action is duplicative, unfair, inequitable, vexatious, and oppressive against the defendant." In the memorandum of law opposing the motion to strike, the defendant argued that a second action on a judgment generally is considered vexatious and oppressive.

The plaintiff, in its motion to strike, claimed that this special defense was legally insufficient and was contrary to the controlling precedent from our Supreme Court. Specifically, the plaintiff alleged that the present case was not duplicative, vexatious, oppressive, unfair or inequitable, and that the passage of time statutorily had barred it from obtaining an execution on the 1994 judgment. The plaintiff also alleged that any pending motions from that case did not impact the propriety of the present action.

The sum of the defendant's appellate argument with respect to this issue is as follows: "The foregoing defense alleges facts that exemplify why a second action on a money judgment is generally considered vexatious and oppressive. Garguilo v. Moore , 156 Conn. 359, (1968). In the present case, as alleged in the second special defense, the action is duplicative and unfair, if for no other reason than the prior action remains pending with active collection proceedings before the court. For the foregoing reason, [the defendant's] second [special] defense as to the first count state[s] a valid defense. It was error to strike said defense."

The defendant's reliance on Garguilo is misplaced. In that case, our Supreme Court stated: "Although an action on a judgment is not favored as being generally vexatious and oppressive, the weight of authority is to the effect that an allegation of nonpayment is sufficient reason for instituting suit . Denison v. Williams , 4 Conn. 402, 404 [ (1822) ]...." (Emphasis added.) Garguilo v. Moore , supra, 156 Conn. at 361, 242 A.2d 716. The plaintiff alleged nonpayment of the 1994 judgment; Garguilo , therefore, does not support the defendant's appellate argument herein.

With respect to the issue of the effect of the "active collection proceedings," the defendant failed to provide this court with any authority in support of his argument. We will not reverse the trial court on the basis of a party's bald assertion. "We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue...