Jackson v. R.G. Whipple, Inc., 14478

Citation225 Conn. 705,627 A.2d 374
Decision Date08 June 1993
Docket NumberNo. 14478,14478
CourtSupreme Court of Connecticut
PartiesGloria JACKSON v. R.G. WHIPPLE, INC., et al.

Barry J. Ward, with whom, on the brief, was Gilbert Shasha, New London, for appellant-appellee (plaintiff).

Dale P. Faulkner, with whom, on the brief, was Kerin M. Woods, New London, for appellee-appellant (named defendant).

Thomas G. Moukawsher, Groton, for appellee (defendant Edward E. Moukawsher).

Before PETERS, C.J., and CALLAHAN, BERDON, NORCOTT and KATZ, JJ.

CALLAHAN, Associate Justice.

This appeal arises from an action brought by the plaintiff, Gloria Jackson, against the defendants, R.G. Whipple, Inc. (Whipple), and Edward E. Moukawsher, for damages resulting from actions taken by the defendants to remove the plaintiff's mobile home from Whipple's trailer park. The plaintiff appealed and Whipple cross appealed to the Appellate Court from the judgment of the trial court. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We reverse in part, and affirm in part, the judgment of the trial court.

The relevant facts are as follows. The plaintiff owned a mobile home situated on a lot that she had leased from Whipple, owner of R.G. Whipple Trailer Park in Mystic. The plaintiff resided in her mobile home from April 1, 1985, to January 31, 1987. On March 26, 1986, Whipple, by its attorney, Moukawsher, brought a summary process action against the plaintiff. On January 31, 1987, the plaintiff moved out of her mobile home and into her mother's mobile home that was situated on an adjoining lot that the plaintiff's mother had leased from Whipple in December, 1986.

A judgment on the summary process action was rendered in favor of Whipple on August 8, 1986. That judgment was appealed but the appeal was later dismissed. The date for the execution of the eviction order was, however, extended.

While the execution of the eviction order was still pending, the defendants commenced a collection action against the plaintiff to recover legal costs and expenses incurred in the summary process action. In connection with the collection action, the defendants, on February 3, 1987, filed an application for a prejudgment remedy. The trial court granted the defendants' application and ordered an ex parte prejudgment attachment of the plaintiff's mobile home. A sheriff served the order and notice of the attachment at the plaintiff's mobile home and certified that he had made service on the plaintiff "at the usual place of abode." The plaintiff claimed that she never received those documents.

Thereafter, on February 21, 1987, the sheriff executed both the eviction order and the attachment. In doing so, he entered the plaintiff's lot with R.G. Whipple, the president of Whipple, and removed the plaintiff's mobile home to another location on Whipple's property.

On March 11, 1987, Whipple filed a motion for a default judgment against the plaintiff for failure to appear in the collection action and, on that same day, sent a copy of the motion to the plaintiff at her "last known address," her mobile home. On June 8, 1987, the trial court rendered a default judgment against the plaintiff in the collection action in the amount of $2477.68. The defendants filed a notice of judgment, and mailed a certified copy to the plaintiff, again at her "last known address."

The plaintiff moved to open the default judgment in the collection action. A hearing was held on the motion to open at which the parties addressed the issues of whether adequate notice of the collection action had been provided and whether the defendants were entitled to the legal fees and costs accrued in the summary process action and sought in the collection action. After oral argument, the trial court, Flanagan, J., denied the plaintiff's motion to open.

On March 24, 1988, an execution issued on the default judgment in the collection action, notice of sale of her mobile home was served on the plaintiff, and the sale was advertised in the local newspaper. The mobile home was ultimately purchased by Whipple at an auction on May 14, 1988.

On July 11, 1988, the plaintiff filed a seven count complaint against the defendants alleging improprieties in both the eviction and collection actions. The defendants moved for summary judgment on all counts. The trial court, Hurley, J., granted the motion on the ground of res judicata as to counts one and two, which alleged abuse of process against both defendants. On July 26, 1991, the defendants then moved to strike from the July 11, 1988 complaint counts three and four, which alleged violations of General Statutes § 52-356a concerning the execution employed to collect the default judgment and the sale of the plaintiff's mobile home. 1 The trial court granted the defendants' motion to strike as to those counts.

The plaintiff then filed an amended two count complaint against both defendants. Count one of the amended complaint alleged that both defendants' actions in removing and selling her mobile home violated General Statutes § 42-110g(a) of the Connecticut Unfair Trade Practices Act (CUTPA). Count two alleged negligence against Whipple regarding its actions in removing and selling the plaintiff's mobile home.

At the outset of the trial on the amended complaint, the defendants moved to exclude evidence and testimony concerning issues that they claimed had been previously litigated in the prior collection action. The trial court granted the defendants' motion and excluded such evidence throughout the trial.

On August 13, 1991, the jury returned a verdict against Whipple on count two only and against Moukawsher on count one. The jury determined that fair, just and reasonable damages be set at $10,000. All three parties moved to set aside the verdict. The trial court granted Moukawsher's motion and denied the plaintiff's motion. Whipple withdrew its motion. The trial court, Leuba, J., rendered judgment for the plaintiff against Whipple only.

The plaintiff claims that the trial court improperly: (1) granted the defendants' summary judgment motion on the ground of res judicata as to counts one and two of the original complaint filed in this action; (2) excluded at trial, on the ground of res judicata, evidence and testimony that the defendants intentionally acted to prevent the plaintiff from receiving notice of the collection suit in order to procure a default judgment; and (3) set aside the verdict against Moukawsher for damages resulting from his alleged violation of General Statutes § 42-110g. 2

I

The plaintiff first claims that the trial court improperly granted the defendants' motion for summary judgment as to the abuse of process claims raised in her original complaint. The plaintiff specifically argues that the trial court improperly determined that her allegations relating to abuse of process against the defendants were barred by res judicata. We agree.

On April 18, 1991, the defendants moved for summary judgment, arguing that res judicata and collateral estoppel applied to the plaintiff's entire original complaint. In their memorandum attached to the motion for summary judgment, the defendants specifically asserted that the factual issues raised in the plaintiff's July 11, 1988 complaint were litigated and decided against the plaintiff in the previous collection action. The trial court granted "on the grounds of res judicata" the defendants' motion for summary judgment as to counts one and two of the plaintiff's original complaint that alleged abuse of process. The court did not articulate its reasons further.

In reviewing the plaintiff's claim that the trial court improperly granted the defendants' motion for summary judgment, we recognize that "[i]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1980). Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment was the appropriate method for resolving a claim of res judicata. Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).

The plaintiff argues that the trial court, by granting the defendants' motion, improperly applied the doctrine of res judicata to counts one and two of her original complaint that alleged that the defendants' actions in the prior collection proceeding constituted an abuse of process. The plaintiff contends that the allegations that supported her abuse of process claims should not have been precluded because they were not actually litigated in, or necessarily determined by, the default judgment in the prior collection action.

Before we address the plaintiff's argument concerning the preclusive effects, if any, of the prior collection action, we note that the terms res judicata and collateral estoppel refer to the concepts of claim preclusion or issue preclusion respectively. Both claim preclusion and issue preclusion "express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest." State v. Ellis, 197 Conn. 436, 465, 497 A.2d 974 (1985). Although claim preclusion and issue preclusion often appear to merge into one another in practice, analytically they are regarded as distinct. "[C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits.... [I]ssue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit." (Internal quotation marks omitted.) Scalzo v. Danbury, 224 Conn. 124, 128, 617 A.2d 440 (1992); see also Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 303-304, 596 A.2d 414 (1991). 3

The parties, both at trial and on appeal, clearly address the...

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