DAB Three, LLC v. Fitzpatrick
| Decision Date | 18 October 2022 |
| Docket Number | AC 44393 |
| Citation | 215 Conn.App. 835,283 A.3d 1048 |
| Parties | DAB THREE, LLC, et al. v. Sandra FITZPATRICK, Allen Fischer, et al. v. Lawyers Title Corporation, et al. |
| Court | Connecticut Court of Appeals |
Laurence V. Parnoff, with whom was Laurence V. Parnoff, Jr., for the appellant (plaintiff Alan Fischer ).
Marc J. Herman, with whom was Jason A. Buchsbaum, and, on the brief, Jonathan S. Bowman, for the appellees (defendants Sandra Fitzpatrick and Lawyers Title Insurance Corporation).
Prescott, Suarez and Bishop, Js.
The plaintiff Alan Fischer appeals from the summary judgments rendered by the trial court in favor of the defendants Lawyers Title Insurance Corporation (LTIC) and Sandra Fitzpatrick on the plaintiff's complaints filed in two actions.1 On appeal, the plaintiff claims that the court incorrectly determined that both of his complaints were barred by the doctrine of res judicata.2 We disagree and, accordingly, affirm the judgments of the court.
The record, viewed in the light most favorable to the plaintiff as the nonmoving party, reveals the following relevant facts and procedural history.3 The plaintiff was the sole owner, designee, managing partner, and assignee of DAB Three, LLC (DAB Three), and he was the sole person acting through and for DAB Three. In August, 2006, DAB Three commenced a prior action (2006 action) against the following seven defendants: LTIC, Fitzpatrick, LandAmerica Financial Group, Inc. (LFG); LandAmerica Environmental Insurance Service Agency, Inc. (LEISA); Lawyers Title Corporation (LTC); Lawyers Title Environmental Insurance Service Agency, Inc. (LTEISA); and Debra Moser (collectively, 2006 defendants). See DAB Three, LLC v. LandAmerica Financial Group, Inc. , Superior Court, judicial district of Fairfield, Docket No. CV-06-5004236-S.
In the operative complaint in the 2006 action, DAB Three alleged that the 2006 defendants were insurance brokers and/or agents. DAB Three further alleged that it had contracted with the 2006 defendants to procure for DAB Three "a pollution legal liability policy with full and complete coverage for all environmental conditions" with respect to a parcel of real property located at 60 High Meadow Road in Brookfield (property). In August, 2000, Fitzpatrick and Moser "procured" and the other 2006 defendants "provided," a pollution legal liability policy for the property (policy) from American International Specialty Lines Insurance Company (AISLIC). DAB Three purchased the property in August, 2000, and later discovered that "previously unknown solid waste" was buried on the property. DAB Three alleged that, in June, 2001, it submitted a claim for coverage under the policy to AISLIC for the cost to remediate the buried waste at the property, but AISLIC denied that claim on the ground that the loss was not covered by the policy.4 The 2006 defendants’ failure to procure adequate insurance coverage for the property resulted in DAB Three's expenditure of $943,000 to remediate the property. On the basis of these allegations, DAB Three asserted two counts against the 2006 defendants: breach of contract and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
Over the course of the next decade, the court issued a series of rulings fully resolving the 2006 action in favor of the 2006 defendants. Particularly, in March, 2008, the court rendered summary judgment in favor of the 2006 defendants with respect to the CUTPA claim. The court held that the CUTPA claim was barred by the three year statute of limitations provided by General Statutes § 42-110g (f) because the 2006 action was filed more than three years after the procurement of the policy in 2000 and AISLIC's denial of the claim for insurance coverage in 2001.5
In October, 2016, the court rendered summary judgment in favor of the 2006 defendants, except for LTEISA, with respect to the breach of contract claim. The court held that there was no genuine issue of material fact that LTEISA is the only entity that DAB Three contracted with to procure environmental insurance coverage with respect to the property. The court further held that there was a genuine issue of material fact as to whether LTEISA brokered the policy in accordance with DAB Three's requested specifications. Thus, only DAB Three's breach of contract claim against LTEISA survived summary judgment.
In November, 2016, counsel for the 2006 defendants filed a motion for permission to withdraw its appearance for LTEISA on the ground that "LTEISA no longer exists" because it had changed its name to LEISA in 1999. In December, 2016, the court granted the motion for permission to withdraw. Later in December, 2016, the court issued an order dismissing the 2006 action as to LTEISA6 "only in light of the plaintiff's counsel's representation on the record that it was not going forward with the trial as to that defendant."
DAB Three then filed an appeal to this court challenging only some of the court's orders in the 2006 action.7 See DAB Three, LLC v. LandAmerica Financial Group, Inc. , 183 Conn. App. 307, 310, 192 A.3d 510, cert. denied, 330 Conn. 921, 194 A.3d 289 (2018). In that appeal, DAB Three claimed, inter alia, that the court incorrectly rendered summary judgment in favor of LEISA, Fitzpatrick, and Moser on the breach of contract claim. Id., at 309, 192 A.3d 510. DAB Three did not challenge on appeal the summary judgment rendered in favor of the 2006 defendants on its CUTPA claim and the summary judgment rendered in favor of LTIC on its breach of contract claim. Id., at 309 n.1, 310, 192 A.3d 510.8
This court affirmed in part and reversed in part the summary judgment rendered by the court in the 2006 action. Id., at 309, 192 A.3d 510. First, this court concluded that the trial court improperly rendered summary judgment in favor of LEISA because "[t]he record is clear that LEISA is the proper party against whom [DAB Three] may maintain a claim for breach of contract, and the [2006] defendants have so conceded." Id., at 317–18, 192 A.3d 510. This court held that, despite the 2006 defendants’ representations to the trial court that LTEISA was the only party that brokered the policy,9 they had conceded at oral argument before this court that "LEISA is the entity with which the plaintiff had entered into a contract to provide the insurance policy at issue." Id., at 316, 192 A.3d 510. Second, this court concluded that the trial court properly rendered summary judgment in favor of Fitzpatrick and Moser on DAB Three's breach of contract claim. Id., at 318–19, 192 A.3d 510. This court reasoned that, although Fitzpatrick and Moser Id., at 319, 192 A.3d 510. Consequently, this court remanded the case to the trial court for further proceedings on the breach of contract claim against LEISA. Id.
On remand, in October, 2018, counsel for the defendants filed a motion for permission to withdraw their appearance for LEISA on the ground that LEISA had discharged the 2006 defendants’ counsel. The discharge letter attached to the motion to withdraw explained that LTIC had retained the same counsel to represent all of the 2006 defendants, and that "there [was] no longer an interest in continuing to defend the interests of LEISA" because the only entity purchased out of LFG's bankruptcy action was LTIC. See footnote 5 of this opinion. On November 5, 2018, the court granted this motion to withdraw.
On January 8, 2019, the trial against LEISA was set to proceed, however, LEISA failed to retain counsel, file an appearance, and otherwise appear at trial. On January 8, 2019, the court issued an order defaulting LEISA for its failure to appear at trial, thereby resolving the issue of liability for DAB Three against LEISA. On January 8 and 9, 2019, the issue of damages on DAB Three's breach of contract claim against LEISA was tried to a jury, which returned a verdict in favor of DAB Three in the amount of $975,000. On January 24, 2019, the court awarded offer of judgment interest in the amount of $1,073,835.62 and offer of judgment attorney's fees in the amount of $350, resulting in a total judgment against LEISA in the amount of $2,049,185.62. The plaintiff has been unable to collect this judgment against LEISA.
In March and April, 2019, the plaintiff commenced the two actions that underlie this appeal (2019 actions).
The first action was commenced by DAB Three and the plaintiff against only Fitzpatrick. The second action was commenced by DAB Three and the plaintiff against LTC, LTIC, LTEISA, and LEISA. In June, 2019, the court consolidated the 2019 actions. See footnote 1 of this opinion.
The allegations of the operative complaints in the 2019 actions are congruent. The gravamen of the 2019 actions is that the defendants are liable for the $2,049,185.62 judgment rendered in the 2006 action because the defendants failed to procure adequate insurance coverage with respect to the property. The plaintiff alleges that, prior to and throughout the 2006 action, the defendants intentionally misrepresented and fraudulently concealed which of the 2006 defendants was (1) the broker of the policy, (2) Fitzpatrick's employer, and (3) the party financially liable to the plaintiff. The plaintiff alleges that the defendants "withheld" the identity of the individual or entity that brokered the policy so as to force DAB Three "to try the case and obtain a judgment in the [2006 action] against a defendant purportedly without assets." Both of the complaints in the 2019 actions assert three claims: (1) fraudulent concealment pursuant to General Statutes § 52-595, (2)...
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