Dipietro v. Farmington Sports Arena Llc., No. 29175.

• Decision Date: 14 September 2010
• Docket Number: No. 29175.
• Citation: 123 Conn.App. 583,2 A.3d 963
• Court: Connecticut Court of Appeals
• Parties: Karen DiPIETRO et al. v. FARMINGTON SPORTS ARENA, LLC.

123 Conn.App. 583

2 A.3d 963

Karen DiPIETRO et al.

v.FARMINGTON SPORTS ARENA, LLC.

No. 29175.

Appellate Court of Connecticut.

Sept. 14, 2010.

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Ralph W. Johnson III, with whom were Coleman C. Duncan III and, on the brief, David G. Hill, Hartford, for the appellant (plaintiff).

Christopher M. Vossler, with whom was Kevin M. Tighe, Hartford, for the appellees (named defendant et al.).

Jeffrey G. Schwartz, for the appellees (defendant Dimensional Technology Group, LLC, et al.).

BISHOP, BEACH and BORDEN, Js.

BORDEN, J.

On March 9, 2002, Michelle DiPietro (Michelle), the minor daughter of the plaintiff, Karen DiPietro, ¹ injured her ankle while playing soccer in an indoor soccer facility, namely, the Farmington Indoor Sports Arena, located in Farmington. The facility was operated by one or more of the defendants, Farmington Sports Arena, LLC (Arena), Dimensional Technology Group, LLC (Dimensional Technology), DiTommaso Associates, LLC (Associates), and Paul DiTommaso, Jr., individually (DiTommaso). ² The plaintiff claims that the defendants were negligent by installing and maintaining a carpet surface in the facility that was unreasonably dangerous for soccer. The principal issue of this appeal is whether the plaintiff's claim is governed, on the one hand, by the traditional rules of law applicable to so-called premises liability claims, or, on the other hand, by rules of law that require more than those traditional rules, namely, that the plaintiff establish by expert testimony a standard of care particularly applicable to indoor soccer. The trial court, Berger, J., concluded that the latter was the applicable law and, accordingly, granted the defendants' motions for summary judgment. We conclude that the plaintiff's claim is governed by the rules of law applicable to premises liability claims and that, pursuant to those rules, the plaintiff's claim survives summary judgment against Arena, Dimensional Technology and DiTommaso. We also conclude that the plaintiff's claim against Associates is barred by the doctrine of res judicata. Accordingly, we reverse in part the trial court's judgment to the contrary.

The plaintiff brought the actions underlying her appeal against the defendants in two separate actions, each pursuant to General Statutes § 52-593, the so-called “wrong defendant” statute. ³ The first of these actions was filed against Arena and alleged that Arena was in control or possession of the premises where Michelle incurred her injuries. The second action was filed against Dimensional Technology, Associates, and DiTommaso. In this action, the plaintiff asserted theories of successor corporate liability, unity of interest and ownership, and piercing the corporate veils. In response to the complaint in this action, several special defenses were filed, including the statute of limitations, res judicata and collateral estoppel.

The defendants filed motions for summary judgment in both actions, claiming that, on the merits, the plaintiff's actions must fail for lack of evidence, inter alia, of the applicable standard of care and of notice to the defendants of any defect in the playing surface, as well as lack of evidence on the claims of piercing the corporate veils and on the plaintiff's theory of successor corporate liability. The defendants' summary judgment motions also reasserted their special defenses. After extensive submissions, the trial court granted the motion for summary judgment filed by Arena. The court, therefore, concluded that the claim of negligence against Dimensional Technology and DiTommaso failed on the merits for the same reasons, and that the claims of piercing the corporate veil against DiTommaso and the successor corporate liability claim against Associates “must also fail.” The court did not, however, specifically address the special defenses of the statute of limitations, res judicata and collateral estoppel. The plaintiff thereafter filed this joint appeal from the judgments of the trial court.

I

Before addressing the merits of the plaintiff's appeal, we consider the alternate grounds for affirming the trial court's judgments; see Practice Book § 63-4(a)(1)(A); raised by Associates, Dimensional Technology and DiTommaso, based on the special defenses filed by those defendants, and on the claimed lack of evidence supporting the plaintiff's claims of piercing the corporate veils and of successor corporate liability. Those alternate grounds arose out of the following procedural history.

In a complaint dated March 8, 2004, the plaintiff sued Associates for the injuries incurred by Michelle on March 9, 2002, at the Farmington Indoor Sports Arena, located at 21 Hyde Road in Farmington, claiming that Associates owned, controlled or possessed the soccer facility on the date of Michelle's injuries. During the course of discovery, it was determined, after the plaintiff deposed DiTommaso, that Associates could not have been the owner or possessor of the facility on that date because Associates was not in existence at that time, and that, at the time in question, the facility had been leased to Arena. Accordingly, on November 22, 2004, the trial court, Lavine, J., granted Associates' unopposed motion for summary judgment.

Thereafter, in a complaint dated January 5, 2005, the plaintiff brought the first of these actions that are the subject of this appeal, against Arena, pursuant to § 52-593. The plaintiff alleged that the correct entity to be sued for Michelle's injuries was Arena, which owned, controlled or possessed the soccer facility on the date of Michelle's injuries.

In a second complaint, dated November 22, 2005, the plaintiff brought the second of these actions, also pursuant to § 52-593, against Dimensional Technology, Associates and DiTommaso. In this action, the plaintiff alleged generally that she was asserting a claim “against those entities/individuals who owned, controlled or possessed” the facility, “against those who directed others in the manner in which they owned, controlled or possessed” the facility, “or against those who are otherwise liable for the entities/individuals that owned, controlled or possessed” the facility. More specifically, as to Associates, the plaintiff alleged that it “is the successor to the other corporate defendants,” namely, Arena and Dimensional Technology, and “is essentially the same instrumentality as said defendants, [and] therefore, it is legally liable for the obligations of said defendants, including” the plaintiff's claim. As to DiTommaso, the plaintiff alleged more specifically that “the unity of interest and ownership between ... DiTommaso and the corporate defendants ... was such that [he] was the alter ego of said corporate defendants,” that his “control of [the] said corporate defendants amounted to such complete domination of the business, its practices, policies, finances, etc. that the independence of the corporate entit[ies] ceased to exist,” that as a result “the corporate veil of said defendants should be pierced as to ... DiTommaso,” and that he is therefore personally liable for the damages sustained by the plaintiff. The plaintiff did not make any specific allegations regarding Dimensional Technology. In sum, therefore, this second action is based on the general theory that, although Arena may be the corporate entity that was in control of the premises at the time of Michelle's injuries and that committed the underlying negligence, the other defendants-Associates, Dimensional Technology and DiTommaso-are nonetheless also liable based on the various theories of liability alleged against them.

A

We first consider Associates' argument that, as an alternate ground for affirming the judgment in its favor, the doctrine of res judicata precludes the present action against it. We agree.

The doctrine of res judicata, or 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 relitigation of issues or claims previously resolved. Scalzo v. Danbury, supra, [at] 127 ; Carothers v. Capozziello, 215 Conn. 82, 94, 574 A.2d 1268 (1990).” (Emphasis added; internal quotation marks omitted.) Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 188, 629 A.2d 1116 (1993).

“We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first 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. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or...