Weiss v. Weiss, 18209.

CourtSupreme Court of Connecticut
Writing for the CourtMcLACHLAN, J
Citation998 A.2d 766,297 Conn. 446
PartiesClaudia WEISSv.Martin T. WEISS.
Docket NumberNo. 18209.,18209.
Decision Date20 July 2010

297 Conn. 446
998 A.2d 766

Claudia WEISS
Martin T. WEISS.

No. 18209.

Supreme Court of Connecticut.

Argued Oct. 20, 2009.
Decided July 20, 2010.

998 A.2d 767


998 A.2d 768


998 A.2d 769
Gerald S. Sack, with whom was Eamonn S. Wisneski, West Hartford, for the appellant (plaintiff).

Anthony R. Minchella, with whom, on the brief, was Elizabeth S. Lachterman, Middlebury, for the appellee (defendant).



The plaintiff, Claudia Weiss, appeals 1 from the trial court's summary judgment rendered in favor of the defendant, Martin T. Weiss, the plaintiff's former husband, on the basis of the court's conclusion that the plaintiff's claims were barred by the doctrines of res judicata and collateral estoppel. At the heart of this dispute is the plaintiff's contention that workers' compensation cases are “personal injury cases” for the purposes of a contingency fee splitting provision in the parties' marital dissolution agreement. Although the defendant argues that res judicata and collateral estoppel bar the plaintiff's action, the plaintiff claims that no aspect of the prior dissolution proceeding, including the hearing on the defendant's subsequent motion for clarification regarding “personal injury cases,” prevents her from litigating the definition of that term in this separate action. Because we conclude that the plaintiff's claims are barred by the doctrine of res judicata, we affirm the judgment of the trial court.

The record reveals the following relevant undisputed facts and procedural history. The parties were married in 1987 and were partners in a law firm, the Law Offices of Weiss and Weiss (law firm), from December, 1988, until December, 1999. In December, 1999, the plaintiff commenced an action for the dissolution of the marriage. The parties executed a separation agreement (agreement), drafted by the plaintiff, which contained terms regarding the dissolution of both the marriage and the law firm. Specifically, it contained the following provision: “The [plaintiff] shall receive [one third] of all contingency fees generated from personal injury cases at ... [the law firm] active as of November 1, 1999.... The parties have also agreed that the [plaintiff] shall receive a [20 percent] interest in the fee generated from a recent stipulated settlement in the [s]econd [d]istrict [w]orkers' [c]ompensation [d]ivision entitled [ Cote v. Tomasso Construction ].”

On July 12, 2000, and before the court heard evidence about the agreement, the defendant provided the plaintiff with copies of the law firm's account statements from August through December, 1999, as well a list of “[a]ctive [p]ersonal [i]njury

998 A.2d 770
[f]iles [t]hrough November, 1999.” The list included the name, date of loss and status of sixty-nine cases.

On June 10, 2002, the defendant moved for summary enforcement of the agreement. During the dissolution trial that followed, the plaintiff claimed that various provisions in the agreement were ambiguous, including the phrase “of counsel,” the lack of a schedule of personal property, the paragraph stating that the parties had sufficient knowledge of each other's finances, and provisions regarding fee splitting, which did not specify whether the plaintiff was to receive her share from the net or gross fees. The plaintiff conceded at that time that the remaining terms of the agreement were not ambiguous.

After a nine day trial, which included twenty-two witnesses and seventy-three exhibits, the court, Scholl, J., by way of a memorandum of decision dated January 3, 2003, found that, pursuant to General Statutes § 46b-66(a),2 the agreement was fair and equitable. The court also found that the agreement was enforceable against the parties, noting that no settlement agreement may be summarily enforced unless the terms of the agreement are clear and unambiguous.3 The court then entered a decree dissolving the parties' marriage on the ground of irretrievable breakdown and incorporated the agreement by reference into the judgment.

On March, 8, 2004, the plaintiff filed a request with the workers' compensation commission seeking all workers' compensation claims handled by the law firm. In response, the plaintiff received a list of eighty-seven workers' compensation cases classified as “ ‘active’ ” on November 1, 1999. In a subsequent affidavit, the plaintiff stated that these cases were not included on the list of personal injury cases that the defendant had provided to her during the dissolution proceeding.

On October 29, 2004, the plaintiff filed a four count complaint in federal district court, wherein she alleged breach of contract, breach of fiduciary duty, fraud and conversion. See Weiss v. Weiss, 375 F.Supp.2d 10 (D.Conn.2005). The primary allegation in the complaint was that the defendant was improperly withholding one third of the fees of his workers' compensation cases in violation of the agreement.4 Id., at 14. On June 15, 2005, the court granted the defendant's motion to dismiss

998 A.2d 771
for lack of subject matter jurisdiction.5 Id., at 14-15, 19.

On November 8, 2004, prior to the resolution of the federal action, the defendant filed a motion for clarification of the dissolution judgment. Specifically, the defendant sought clarification that “the [p]laintiff waived any claim over ... [w]orkers' [c]ompensation cases which [are] distinguished from the [p]ersonal [i]njury cases for which she was awarded an interest.” The plaintiff objected and filed a motion to strike the motion for clarification on the ground that, inter alia, the court did not have jurisdiction because the defendant's motion for clarification was, in substance, a motion to open and modify the judgment of dissolution.

At the April 20, 2005 hearing on the motion, the court, Scholl, J., denied the plaintiff's motion to strike, concluding that the defendant's motion was properly characterized as a motion for clarification and that the court therefore was limited to restating, rather than changing, the dissolution judgment. The plaintiff then argued that the phrase “personal injury cases” encompassed workers' compensation cases and noted that she had assumed that the defendant had included workers' compensation cases in the list that he had provided to her. She argued that “personal injury cases” would naturally include workers' compensation cases because both involve an injury to an individual and a contingency fee. The defendant argued that, by specifying in the agreement that the plaintiff would receive a smaller percentage of the fee in one particular workers' compensation case, the parties indicated that “personal injury cases” did not encompass workers' compensation cases. He also argued that any ambiguity in the agreement should be construed against the plaintiff because she had drafted it, and that she had evidenced her understanding that workers' compensation matters were distinct from personal injury cases by referring to them separately in her testimony regarding the defendant's practice areas at the dissolution proceeding. The court declined to hear evidence and issued an oral decision, stating that “[i]t seems to me [that the language regarding the splitting of personal injury contingency fees is] clear and unambiguous that it means personal injury action. It doesn't mean workers' comp[ensation]. If it did, they wouldn't have had to make the exception for the workers' comp[ensation] matter regarding the Cote case and, therefore, I'm going to ... grant the motion to clarify just to say that I believe ... [the relevant language] does not include the worker[s'] comp [ensation] cases. Personal injury does not mean workers' comp[ensation] cases.”

The plaintiff then challenged the ruling on appeal to the Appellate Court. In his motion to dismiss that appeal, the defendant argued that the plaintiff could not properly appeal from the motion for clarification because that motion did not give rise to a new appeal period.6 By order

998 A.2d 772
dated June 22, 2005, the Appellate Court granted the defendant's motion, but did not state the basis for its decision.7 Subsequently, this court denied the plaintiff's petition for certification. Weiss v. Weiss, 276 Conn. 905, 884 A.2d 1027 (2005).

On December 16, 2005, the plaintiff brought the present action, and, thereafter, filed an amended five count complaint. Specifically, count one alleged that the defendant had breached his contract with the plaintiff by failing to pay her one third of all contingency fees from personal injury cases at the law firm active as of November 1, 1999. Count two alleged that the defendant had breached his fiduciary duties when he failed to include contingency fee workers' compensation cases in the list of “all active contingent matters” at the law firm as of November 1, 1999, which he had provided to the plaintiff. In count three, the plaintiff alleged that in order to induce the plaintiff to sign the agreement, the defendant had fraudulently represented that he would disclose and itemize all contingency fee cases at the law firm active as of November 1, 1999, and pay the plaintiff her interest in the recoveries in those matters. Counts four and five alleged that the defendant had wrongfully converted property and funds to which the plaintiff was entitled, and had committed theft pursuant to General Statutes § 52-564. 8

In his answer, the defendant denied all of the allegations in all of the counts and raised six special defenses. Specifically, the defendant argued that the plaintiff's claims were barred by the doctrines of res judicata, collateral estoppel and equitable estoppel because the matters had been litigated in the dissolution action. The defendant also argued that the plaintiff's claims were barred by the doctrine of laches, the parties' agreement and the applicable statutes of limitation, and...

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