Griffin v. Parker

• Decision Date: 12 July 1990
• Docket Number: No. 8017,8017
• Citation: 22 Conn.App. 610,579 A.2d 532
• Court: Connecticut Court of Appeals
• Parties: Theodore E. GRIFFIN v. Claude L. PARKER.

Page 532

579 A.2d 532

22 Conn.App. 610

Theodore E. GRIFFIN v. Claude L. PARKER.

No. 8017.

Appellate Court of Connecticut.

Argued Dec. 5, 1989.

Decided July 12, 1990.

Louis S. Avitabile, for appellant (defendant).

Joseph Procopio, for appellee (plaintiff).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and LAVERY, JJ.

DUPONT, Chief Judge.

The plaintiff initiated this civil action to recover damages for personal injuries sustained as the result of being shot by the defendant. The same shooting incident led to a prior judgment of conviction of assault in the first degree, in violation of General Statutes §§ 53a-59(a)(1) and 53a-59(a)(3). On the basis of the prior criminal conviction, the trial court granted summary judgment for the plaintiff. A hearing in damages was subsequently held and the plaintiff was awarded damages in the amount of $475,000.

The defendant claims on appeal that the trial court should not have granted the plaintiff's motion for summary judgment because (1) the documentation accompanying the plaintiff's motion failed to address and resolve all the factual issues raised by the pleadings, (2) the doctrine of collateral estoppel cannot be applied because the facts and issues litigated and determined in the prior criminal action were not identical to those raised in the later civil action, and (3) offensive collateral estoppel cannot be used by the plaintiff to obtain a summary judgment because he was not a party or in privity with a party in the prior criminal action.

The defendant's claim that the plaintiff's documentation failed to address and resolve all the factual issues raised by the pleadings centers on whether any factual circumstances existed that would result in the barring of the plaintiff's action because of the two year statute of limitations on personal injury actions. See General Statutes § 52-584. The plaintiff's complaint contains alternative allegations that the act complained of was both reckless and intentional. The defendant's special defense to the claim of the reckless infliction of injury was that the statute of limitations had run, thereby barring the plaintiff's action. In order to address the statute of limitations question, it is necessary to review the procedural history in some detail.

The defendant did not appeal from the criminal conviction upon which the summary judgment was based. He was convicted of violating General Statutes §§ 53a-59(a)(1) and 53a-59(a)(3). Section 53a-59(a)(1) is based on the intentional infliction of serious physical injury by means of a deadly weapon or dangerous instrument, while § 53a-59(a)(3) is based on recklessly engaging "in conduct which creates a risk of death" and causes "serious physical injury," where "the circumstances evince an extreme indifference to human life."

The briefs of the parties reflect some confusion as to whether the defendant was actually charged and convicted under both subdivisions of the statute, under one subdivision or under the statute generally, without reference to either subdivision. The substitute information, however, establishes that he was, in fact, charged under both subdivisions, and the transcript of the criminal trial proceedings also indicates that he was convicted under both subdivisions. ¹ The criminal docket sheet, which was before the trial court in the civil case at the time of the summary judgment motion, reflects that the conviction was under both subdivisions (a)(1) and (a)(3).

At the close of the criminal trial, the defendant asked that the jury be polled to determine under which subdivision it found the defendant guilty. The court refused to conduct a poll. The defendant failed to challenge either that ruling or the conviction itself. Had he believed that the evidence presented at trial was insufficient to support his conviction on either reckless or intentional assault, the defendant could have appealed from the judgment of conviction, claiming that it could not have been upheld because there were two alternative methods of violating the statute, and that the evidence was insufficient to convict on each of the alternative methods. See State v. Arnold, 201 Conn. 276, 281, 514 A.2d 330 (1986); State v. Ostolaza, 20 Conn.App. 40, 50, 564 A.2d 324 (1989). By choosing not to appeal, the defendant effectively accepted the judgment of conviction that had been rendered on the basis of both reckless and intentional assault.

Although the criminal docket sheet reflects a conviction on both subdivisions of the statute, the parties agree that the trial court requested that the mittimus reflect only the conviction for reckless assault. This fact, however, has only to do with incarceration and does not, as the defendant implies, affect the statutory basis of the conviction. The defendant's argument, that a suit for personal injury based on the conviction for reckless assault was barred by the statute of limitations, is irrelevant because a claim based on the conviction for intentional assault was, in any case, not barred.

When a motion for summary judgment is made, the movant must show an entitlement to judgment as a matter of law and that no material issue of fact, that is, one that would make a difference in the outcome, remains to be resolved at trial. If this cannot be shown, the motion must be denied. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578-79, 573 A.2d 699 (1990); Genco v. Connecticut Light & Power Co., 7 Conn.App. 164, 167, 508 A.2d 58 (1986). We conclude that the court was not prevented from granting summary judgment for the plaintiff because of the period of limitations of General Statutes § 52-584. This is so because the allegations of the plaintiff's complaint included a cause of action for intentional assault, based on the prior criminal conviction under § 53a-59(a)(1). Unless lack of mutuality prevents that conviction from being used under the doctrine of collateral estoppel, summary judgment would be proper.

The defendant argues that the doctrine of collateral estoppel, based on his conviction of first degree assault in the prior criminal action, is not available to the plaintiff because the plaintiff was neither a party to nor in privity with a party to the earlier criminal action and because the facts and issues here are not identical to those in the criminal case. He claims that, for a plaintiff to use the principle of collateral estoppel to resolve an issue, "mutuality of the parties" as well as identity of facts and issues in the two actions must be present.

"Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit." Gionfriddo v. Gartenhaus Cafe, 15 Conn.App. 392, 402, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989). The purposes underlying the doctrine of collateral estoppel are to protect the finality of judicial determinations, and to conserve time and judicial resources. Id. Historically, in order for collateral estoppel to apply, the adversaries in the second action must have been party adversaries in the first action. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326-27, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). A frequently cited and basic reason for this mutuality requirement is to assure that the party against whom estoppel is to be used has had an opportunity fully and fairly to litigate the issue in the first action. Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970); State v. Fritz, 204 Conn. 156, 173, 527 A.2d 1157 (1987); Gionfriddo v. Gartenhaus Cafe, supra. The doctrine of collateral estoppel differs from res judicata in that the latter involves claim preclusion, and the former, issue preclusion. The effect of requiring mutuality is to limit the scope of collateral estoppel so that neither party in a second action can use a prior judgment for estoppel purposes against the other unless both were adversaries in the first case and bound by that prior action.

Numerous federal and state courts have abandoned the automatic requirement of mutuality. United Banana Co. v. United Fruit Co., 172 F.Supp. 580, 588 (D.Conn.1959); Bernhard v. Bank of America, 19 Cal.2d 807, 813, 122 P.2d 892 (1942); Read v. Sacco, 49 App.Div.2d 471, 473, 375 N.Y.S.2d 371 (1975). Moreover, one prime authority on which the mutuality requirement in successive civil cases was based, namely, Restatement, Judgments § 82, was revised in Restatement (Second), Judgments § 38, to abandon that requirement. The revised section provides as follows: "Parties who are not adversaries to each other under the pleadings in an action involving them and a third party are bound by and entitled to the benefits of issue preclusion with respect to issues they actually litigate fully and fairly as adversaries to each other and which are essential to the judgment rendered."

Furthermore, a provision has been added in Restatement (Second), Judgments, that had no counterpart in the prior Restatement. That provision is found in § 85, entitled "Effect of Criminal Judgment in Subsequent Civil Action," and provides in relevant part: "With respect to issues determined in a criminal prosecution: ... (2) A judgment in favor of the prosecuting authority is preclusive in favor of a third person in a civil action: (a) Against the defendant in the criminal prosecution as stated in § 29." ² Thus, § 85 allows a party to use a prior criminal conviction offensively against a defendant in a subsequent civil case.

The Connecticut Supreme Court has not yet resolved whether the application of collateral estoppel requires the mutuality of parties in all civil cases, or if, indeed, the requirement has any force in a criminal context. We need not, therefore, in the resolution of this case, disturb any existing Supreme Court precedent.

It is obvious that in every criminal trial, the defendant is present or had the opportunity to be present to litigate the issue of whether he or...