Consiglio v. Al Dente, LLC, CV156056847S
| Decision Date | 09 February 2018 |
| Docket Number | CV156056847S |
| Court | Superior Court of Connecticut |
| Parties | Robert CONSIGLIO, Individually and as Executor of the Estate of Flora Consiglio et al. v. AL DENTE, LLC |
UNPUBLISHED OPINION
On October 7, 2015, the plaintiffs, Robert Consiglio individually and as executor of the estate of Flora Consiglio, and Richard Consiglio,[1] filed a ten-count amended complaint alleging the following facts. In late 2013 through early 2014, the Consiglios, as owners of Sally’s Apizza (Sally’s), solicited offers from bidders that provided the bidders with the ability to further negotiate the potential sale of Sally’s. The defendant Carmine Capasso, an attorney admitted to the Connecticut bar, was an interested buyer of Sally’s, and held himself out as a member of the defendant Al Dente, LLC.[2] Around March 2014, Capasso submitted a bid to the Consiglios and the parties subsequently entered into further negotiations. These negotiations, however failed to produce a binding contract. Knowing that these negotiations did not produce a binding contract, Capasso initiated a lawsuit against the Consiglios upon becoming aware that the Consiglios intended to sell Sally’s to another buyer. That lawsuit, Al Dente, LLC v. Consiglio, Superior Court, judicial district of New Haven, Docket No CV-14-6049694-S (the underlying action), was initiated in order to stall or defeat the sale of Sally’s to another buyer. The underlying action terminated in the Consiglios’ favor when the court, Frechette, J., granted the Consiglios’ motion for summary judgment on all counts. Capasso acted with malice in bringing the underlying action because he knew that he lacked probable cause as to each of the counts alleged. These allegations further form the basis of the Consiglios’ claims of vexatious litigation, abuse of process, tortious interference with a business expectancy, violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and slander of title.
On February 23, 2017, Al Dente filed an answer, special defenses, and counterclaim alleging the following facts. The Consiglios held a meeting on March 27, 2014, concerning the sale of Sally’s, by which the Consiglios agreed with Al Dente that bids for the purchase of Sally’s were due by April 14, 2014, and that the Consiglios thereafter had a duty to negotiate the sale of Sally’s with the highest bidder. On April 14, 2014, Al Dente submitted the highest bid and redelivered a contract that was previously provided to the Consiglios, although the date and purchase price were amended. Thereafter, the Consiglios began negotiations with Al Dente, and during this time, Al Dente addressed all of the Consiglios’ concerns and issues with the contract that was provided to them by Al Dente. Without Al Dente’s knowledge, and while engaging in ongoing negotiations with Al Dente, the Consiglios were exploring other offers for the sale of Sally’s. As a result of these outside negotiations, the Consiglios terminated their negotiations with Al Dente. The first count of Al Dente’s counterclaim alleges that the Consiglios’ conduct was intentional, fraudulent, and a bad faith breach of the March 27, 2014 agreement (bidding agreement). The second count of Al Dente’s counterclaim alleges that the Consiglios’ conduct violated CUTPA.
On June 13, 2017, the Consiglios filed a motion for summary judgment as to all counts of Al Dente’s counterclaim, on the ground that Al Dente’s counterclaims are barred by the doctrines of res judicata and collateral estoppel. The Consiglios filed a memorandum in support of summary judgment, to which they attached several exhibits. Al Dente subsequently filed an objection to the Consiglios’ motion for summary judgment, and submitted a memorandum of law and several exhibits in support. On November 2, 2017, the Consiglios filed a reply to Al Dente’s objection, to which they attached several exhibits. Oral argument was heard on the motion at short calendar on November 6, 2017. Additional facts will be set forth as necessary.
" [A]ny party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action." Practice Book § 17-44. (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821 116 A.3d 1195 (2015). " [S]ummary judgment is an appropriate vehicle for raising a claim of res judicata ..." (Citations omitted.) 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 [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).
The Consiglios make the following arguments in support of their motion for summary judgment. Al Dente’s counterclaims are barred by the doctrines of res judicata and collateral estoppel because all the causes of action Al Dente asserts in its counterclaim are claims that either were, or might have been, brought in the underlying action. In the underlying action, Al Dente alleged that the Consiglios engaged in unscrupulous, deceptive, and unfair conduct in the course of negotiations between the parties to purchase Sally’s. Those claims are conceptually identical to Al Dente’s counterclaims in this action, wherein Al Dente alleges that the Consiglios engaged in bad faith conduct in the course of those same negotiations. Although wrongful conduct in the underlying case may sometimes permit a party to avoid res judicata, Al Dente has only claimed wrongful conduct in the instant action, and cannot claim wrongful conduct in the underlying action because it did not conduct any discovery in that case. Further, § 52-592 does not preclude the granting of summary judgment in their favor because that statute does not create an exception to the application of res judicata.
In response, Al Dente makes the following arguments. Its counterclaim is not identical to the claims it made in the underlying action because the counterclaim involves parties and tort claims that were not part of the underlying action. Further, Al Dente did not have knowledge of the facts necessary to bring the counterclaims until the Consiglios released confidential information in 2016. The Consiglios intentionally withheld knowledge of the facts that form the basis of Al Dente’s counterclaim, and were not known or available to Al Dente until more than two years after the underlying action was brought. Moreover, summary judgment in the underlying action was granted based on defective pleadings, rather than being decided on its merits, and therefore, even if its counterclaim is found to be identical to its claims in the underlying action, § 52-592 allows Al Dente to bring those same claims in the present action.
" The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation." Gionfriddo v. Gartenhaus Cafe, 15 Conn.App. 392, 401, 546 A.2d 284 (1988), aff’d, 211 Conn. 67, 557 A.2d 540 (1989). " [T]he applicability of res judicata and collateral estoppel presents a question of law ..." Weiss v. Weiss, 297 Conn. 446, 458, 998 A.2d 766 (2010). Whether to apply either doctrine " should be made based upon a consideration of the doctrine’s underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close ... and the competing interest of the plaintiff in the vindication of a just claim ... These [underlying] 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 by preventing a person from being harassed by vexatious litigation ... The judicial doctrines of res judicata and collateral estoppel are 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 ... Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest." (Internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 601-02, 922 A.2d 1073 (2007).
" 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...
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