Heussner v. Day, Berry and Howard, Llp

• Decision Date: 28 March 2006
• Docket Number: No. 26461.,26461.
• Citation: 94 Conn.App. 569,893 A.2d 486
• Court: Connecticut Court of Appeals
• Parties: Janet HEUSSNER v. DAY, BERRY AND HOWARD, LLP, et al.

893 A.2d 486

94 Conn.App. 569

Janet HEUSSNER v. DAY, BERRY AND HOWARD, LLP, et al.

No. 26461.

Appellate Court of Connecticut.

Argued January 11, 2006.

Decided March 28, 2006.

COPYRIGHT MATERIAL OMITTED

John R. Williams, New Haven, for the appellant (plaintiff).

Anthony M. Fitzgerald, with whom, on the brief, was David S. Hardy, New Haven, for the appellees (named defendant et al.).

DiPENTIMA, McLACHLAN and FRANCIS X. HENNESSY, Js.

McLACHLAN, J.

The plaintiff, Janet Heussner, appeals from the judgment of the trial court, rendered after it granted the motion for summary judgment filed by the defendants Day, Berry & Howard, LLP, and Gregory A. Hayes.¹ The plaintiff claims that the court improperly concluded that the doctrine of collateral estoppel applied to preclude the relitigation of facts and issues that previously were determined in a Probate Court proceeding. We disagree and affirm the judgment of the trial court.

The facts are essentially undisputed. The plaintiff, a resident of New York, is the daughter of Anastasia Heussner, a resident of Connecticut. In December, 2002, the Probate Court for the district of Fairfield determined that Anastasia Heussner was incapable of managing her affairs and appointed George Heussner, the son of Anastasia Heussner, and Hayes, a partner at the law firm of Day, Berry & Howard, LLP, as conservators of her estate. At various times between April and June, 2003, George Heussner and Hayes met with a detective at the Fairfield police department and reported that the plaintiff had removed various items of personal property from Anastasia Heussner's home and refused to return them. The plaintiff thereafter was arrested and charged with the crime of larceny in the first degree.

In August, 2003, while the criminal charge was pending, George Heussner and Hayes filed a petition with the Probate Court, claiming that the plaintiff had moved into Anastasia Heussner's home and had removed various items of personal property without the permission of the conservators. They sought authority to remove the plaintiff from Anastasia Heussner's home and an order directing the plaintiff to return the items that she had taken. The Probate Court issued a notice, scheduling a hearing on the petition for August 7, 2003, and sent copies of the notice to the plaintiff and her counsel. The plaintiff attended the hearing, was represented by counsel and participated in the hearing. Following the hearing, the Probate Court issued a decree, in which it made findings of fact and authorized the conservators to initiate proceedings to obtain the return of Anastasia Heussner's personal property and the exclusive possession of her real property. Additionally, the Probate Court ordered the plaintiff to return the property that she had taken, to vacate Anastasia Heussner's home and to refrain from entering Anastasia Heussner's home without further order from the Probate Court. The plaintiff did not appeal from the decree of the Probate Court pursuant to General Statutes § 45a-186

After the decree was issued, Hayes contacted the prosecutor's office and repeated the allegations against the plaintiff. Because the plaintiff had not returned the property, Hayes urged that she be "vigorously prosecuted for her offense." The plaintiff eventually returned numerous items of personal property to the conservators. The criminal charge against the plaintiff was dismissed, and the record of her case was erased.

The plaintiff then commenced the present action against the defendants, claiming malicious prosecution and negligent infliction of emotional distress. The plaintiff alleged that Hayes had acted as the agent of his law firm for its economic benefit and within the scope of his agency. The defendants filed a motion for summary judgment, contending that the plaintiff's claims were barred by the doctrine of collateral estoppel because of the previous Probate Court decree. The court agreed and granted the defendants' motion for summary judgment. This appeal followed.

"Summary judgment is appropriate when the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Thus, because the court's decision on a motion for summary judgment is a legal determination, our review on appeal is plenary"; (citations omitted; internal quotation marks omitted) Middlesex Mutual Assurance Co. v. Vaszil, 89 Conn.App. 482, 485-86, 873 A.2d 1030, cert. granted on other grounds, 275 Conn. 911, 882 A.2d 673 (2005); as is our review of the applicability of the collateral estoppel doctrine. Albahary v. Bristol, 276 Conn. 426, 444, 886 A.2d 802 (2005).

"The fundamental principles underlying the doctrine of collateral estoppel are well established. The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. . . . Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. . . . Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment. . . . Thus, the issue must have been fully and fairly litigated in the first action. . . . Collateral estoppel express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest. . . .

"An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for a determination, and in fact determined. . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. . . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action." (Citations omitted; emphasis in original; internal quotation marks omitted.) Bishop v. Zoning Board of Appeals, 92 Conn.App. 600, 605-606, 886 A.2d 470 (2005), cert. denied, 277 Conn. 906, ___ A.2d ___ (2006).

In their motion for summary judgment, the defendants claimed that the doctrine of collateral estoppel barred the plaintiff's action for malicious prosecution and negligent infliction of emotional distress. The defendants argued that the plaintiff was precluded from litigating facts and issues concerning her taking of Anastasia Heussner's personal property, because those facts and issues previously had been litigated and determined in the Probate Court proceeding and decree. In its oral decision granting the motion, the court incorporated the findings and decree of the Probate Court, and concluded that the plaintiff's claims were precluded by the provisions of General Statutes § 45a-24² because no appeal had been filed by the plaintiff from that decree.³

It is undisputed that the plaintiff and her counsel received notice of the Probate Court hearing scheduled on the petition of George Heussner and Hayes, as conservators, for authority to remove the plaintiff from Anastasia Heussner's home and seeking an order directing the plaintiff to return items of personal property that they claimed were removed from Anastasia Heussner's home without their permission. The plaintiff was present at the hearing and was represented by counsel. When the hearing was concluded, the Probate Court issued a decree. A copy of the decree was mailed to the plaintiff's counsel.

The following findings and orders of the Probate Court are relevant to the resolution of the issue on appeal. "At the hearing on the conservatorship and at a subsequent hearing held on March 25, 2003, the ownership of certain items of personal property was discussed and disputed by [Anastasia Heussner's] only children, George Heussner and [the plaintiff]. The court made it abundantly clear to the parties that the ownership of disputed personal property was a matter to be determined at a later date, one requiring a motion to try title to personal property. . . .

"Subsequently, on or about April 20, 2003, [Anastasia Heussner's] daughter, [the plaintiff], fully aware of the appointment of a coconservator of the estate and person for Anastasia Heussner and without permission from either coconservator and without bringing an action to try title to personal property either here or in the Superior Court, removed over four hundred (400) items of personal property, including a silver coin collection, an antique silver collection, antique porcelain and items of gold jewelry, from [Anastasia Heussner's] residence. . . . Among the items removed from the house were items belonging to [Anastasia Heussner] and items in which her son, George [Heussner] also claimed an interest. . . .

"As a result of the removal of the above mentioned items from the residence, the Fairfield police communicated directly with [the plaintiff], seeking the return of all the subject items. [The plaintiff] has refused to return these items to the coconservators. As a result of [the plainti...