Opinion
No. CV 04 4005176 S
July 6, 2007
MEMORANDUM OF DECISION RE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the court is a motion for partial summary judgment brought by the plaintiffs, James Cohen and Roll-A-Cover of New Jersey, LLC (RACNJ). The plaintiffs seek summary judgment on the first two counts of their nine-count amended complaint. In the first count, the plaintiffs allege that the defendants, Roll-A-Cover, LLC (RAC), and Michael Morris, violated the Connecticut Business Opportunity Investment Act, General Statutes § 36b-60 et seq., in that the defendants, inter alia, sold a business opportunity to the plaintiffs without registering it with the banking commissioner of the Connecticut department of banking, without providing a written disclosure statement and without providing a surety or bond or establishing a trust account. In the second count, the plaintiffs allege that the defendants' violations entitle the plaintiffs to recovery of damages, including reasonable attorneys fees.
The plaintiffs move for summary judgment as to the first and second count on the ground that no genuine issue of material fact exists regarding whether the defendants violated the Connecticut Business Opportunity Investment Act because the defendants entered into a consent order with the banking commissioner in which they admitted to selling an unregistered business opportunity to the plaintiffs and the plaintiffs, therefore, are entitled to judgment as a matter of law. In addition, the plaintiffs move for summary judgment as to both counts on the alternative ground that, pursuant to the doctrine of collateral estoppel, the defendants are precluded from relitigating the issue of whether they violated the Connecticut Business Opportunity Investment Act.
The plaintiffs filed their complaint on April 7, 2005. The complaint consists of nine counts: (1) a violation of the Connecticut Business Opportunity Investment Act; (2) an action for recovery of damages under § 36b-74(b) of the Connecticut Business Opportunity Investment Act; (3) breach of contract; (4) breach of the implied covenant of good faith and fair dealing; (5) fraudulent inducement; (6) fraud; (7) intentional misrepresentation; (8) negligent misrepresentation; and (9) a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
The plaintiffs allege that the defendants violated the Connecticut Business Opportunity Investment Act in that they: sold a business opportunity that was not registered as required by General Statutes § 36b-62; failed to provide a written disclosure document as set forth in General Statutes § 36b-63(a) and to make other required disclosures required to be made under General Statutes § 36b-63(b)(1) through (27); failed to obtain a surety bond or establish a trust account as required by General Statutes § 36b; sold the business opportunity with registering as a seller with the banking commissioner or providing financial statements to the commissioner as required by General Statutes § 36b-65; sold the business opportunity without complying with General Statutes § 36b-66; and engaged in sales activities prohibited by General Statutes § 36b-67.
General Statutes § 36b-74(b) provides: "Any purchaser-investor injured by a violation of sections 36b-60 to 36b-80, inclusive, or by a business opportunity seller's breach of contract subject to said sections or any obligation arising therefrom may bring an action for recovery of damages, including reasonable attorneys fees."
In the complaint, the plaintiffs allege the following facts. Defendant RAC is a Connecticut-based manufacturer of retractable pool covers and other outdoor enclosures, and Morris is its president. RACNJ was formed in 2003 to be the exclusive distributor of RAC's products in New Jersey, with Cohen as its managing member. Before RACNJ was formed, Cohen contacted Morris to inquire about purchasing an enclosure. Morris responded to Cohen's inquiry and also told him that RAC was interested in forming a distributorship in New Jersey. On November 24, 2003, the parties executed a letter of intent to form RACNJ. The letter provided Cohen with "[e]xclusive control of New Jersey as a master distributor and dealer [of RAC's products] with rights of survivorship." The parties had subsequent communications in which the defendants made representations that led Cohen to enter into a distributorship agreement with the defendants. The parties entered into the agreement on or about January 13, 2004. The agreement provided Cohen with master distributorship in New Jersey and, as modified by another agreement on March 31, 2004, master distributorship in a territory in Delaware. Cohen later learned that the defendants' representations were false, materially misleading and designed to induce him to make the agreement. Despite Cohen's efforts, the defendants failed to perform their obligations under the agreement. On November 22, 2004, Cohen voided the distributorship agreement pursuant to the Connecticut Business Opportunity Investment Act, and demanded the return of all sums paid to the defendants, $145,000, which sum the defendants have not returned.
General Statutes § 36b-74(a) provides in relevant part: "If a business opportunity seller uses any untrue or misleading statement in the sale of a business opportunity, or fails to give the proper disclosures in the manner required by section 36b-63, or fails to deliver the equipment, supplies or products or render the services necessary to begin substantial operation of the business opportunity within forty-five days of the delivery date stated in the business opportunity contract, or if the contract does not comply with the requirements of section 36b-66, then within two years of the date of the contract, upon written notice to such business opportunity seller, the purchaser-investor may void the contract and shall be entitled to receive from such business opportunity seller all sums paid to such business opportunity seller."
On March 8, 2007, the plaintiffs filed a motion for partial summary judgment on counts one and two, together with a memorandum of law, two affidavits and other supporting documents. They filed a supplemental affidavit on March 27, 2007. On April 18, 2007, the defendants filed a memorandum of law in opposition to the plaintiffs' motion, accompanied by three affidavits and other supporting documents. They filed a supplemental memorandum of law on April 19, 2007. On April 27, 2007, the plaintiffs filed a reply memorandum in further support of their motion, along with three affidavits and other supporting documents. On April 30, 2007, the defendants filed a surreply memorandum, along with an affidavit and other supporting documents. The matter was heard at the short calendar on April 30, 2007.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if 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." (Internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 599 (2007). "[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
"When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Socha v. Bordeau, supra, 277 Conn. 586.
I
As a preliminary matter, the court addresses the admissibility of the evidence in the present case.
A
The central argument of the plaintiffs' motion is that the defendants entered into a consent order with the banking commissioner of the Connecticut department of banking, in which they admitted to selling an unregistered business opportunity to the plaintiffs. The defendants seek to undercut that argument by asserting that the two affidavits of the plaintiffs' attorney, to which supporting documents are appended, are inadmissible. Furthermore, the defendants challenge the authenticity of the documents accompanying the affidavits.
As to the first affidavit, the defendants argue that it is a "mere conduit of the documents appended thereto." They further argue that "[n]one of the exhibits attached to the . . . affidavit are sufficient documentary evidence under the Connecticut Rules of Evidence §§ 7-1, 8-1 through 8-3 or sufficient to support a motion for summary judgment under [Practice Book] §§ 17-45 [and 17-46]." As to the supplemental affidavit, they argue it is "again a mere conduit for the documents appended thereto . . ." The plaintiffs counter that both affidavits made by the plaintiffs' attorney are admissible and that they cured the failure to certify the copies of documents attached to the first affidavit by submitting a supplemental affidavit with certified copies.
The defendants' challenge to the affidavits is inapposite and fails to implicate admissibility rules governing attorneys' affidavits. In filing a supplemental affidavit with certified attachments, the plaintiffs, in effect, concede that the uncertified attachments to the first affidavit were inadmissible. Further, although they are affidavits in form the affidavits serve as mere cover sheets for the documentary evidence attached thereto, since they contain neither evidentiary assertions nor statements of fact. The defendants' evidentiary objection is, thus, groundless because the affidavits contain no evidence. Moreover, were the court to determine that the affidavits are inadmissible, such a determination would not serve to exclude the documents appended to the supplemental affidavit because those documents are separately authenticated.
The defendants also argue that the document attached to the supplemental affidavit, entitled "Order to Cease And Desist, Notice Of Intent To Fine, And Notice of Right To Hearing" (cease and desist order), is an inadmissible "accusation." This objection is problematic because research reveals no such rule and the court is not obligated to unravel the objection's meaning. "Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . These same principles apply to claims raised in the trial court." (Citation omitted; internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
To the extent that the defendants' objection is premised on the hearsay rule, however, the court must determine if the cease and desist order is inadmissible hearsay. "Hearsay is an out-of-court statement offered into evidence to establish the truth of the matters contained therein." (Internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 753, 680 A.2d 301 (1996). "An out-of-court statement that is not offered for the truth of the matter asserted therein is not hearsay." Sowinski v. Sowinski, 72 Conn.App. 25, 31, 804 A.2d 872 (2002). "If the statement is not offered to prove its contents, the offeror must satisfy the court that the statement itself is relevant for some other purpose." (Internal quotation marks omitted.) State v. Galarza, 97 Conn.App. 444, 475, 906 A.2d 685, cert denied, 280 Conn. 936, 909 A.2d 962 (2006) (Schaller, J., concurring), quoting C. Tait, Connecticut Evidence (3d Ed. 2001) § 8.7, p. 574.
When evidence is offered for a nonhearsay purpose, the court must determine: "Is it relevant that the statement was made, whether or not it is true? If so, to what material issue is the statement relevant?" C. Tait, supra, p. 574. "Evidence is admissible only if it is relevant [i.e.] if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence." (Citations omitted; internal quotation marks omitted.) Deegan v. Simmons, 100 Conn.App. 524, 540, 918 A.2d 998 (2007).
The cease and desist order serves to accomplish the purpose of establishing that it was issued to the defendants upon a formal investigation by the banking commissioner in which the commissioner found that they sold an unregistered business opportunity. Moreover, the order is relevant to providing context to the subsequent consent order because the latter incorporates the former. The consent order states: "Respondents agree that the [cease and desist order] may be used in construing the language of this consent order . . ." Accordingly, the court concludes that the cease and desist order is admissible, for this limited purpose.
B
The defendants also raise several objections to the evidence appended to the plaintiffs' reply memorandum, which includes an affidavit from Cohen and an affidavit from Sidney Igdalsky, a manager with the securities and business investment division of the department of banking. They argue that the affidavits violate the parol evidence rule because they have been introduced to vary the unambiguous terms of the consent order. They further argue that parts of the affidavits contain hearsay. Finally, the defendants maintain that the affidavits are not based on personal knowledge.
The court addresses the last objection first. "[Section 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on `personal knowledge'; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995).
"It is especially appropriate to hold an affidavit submitted by a moving party to a stringent standard." Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978). "If the nonmovant does not recite specific facts . . . that contradict those stated in the movant's affidavits and documents and show there is a genuine issue for trial, summary judgment shall be rendered against him." (Internal quotation marks omitted.) Nieves v. Cirmo, 67 Conn.App. 576, 579, 787 A.2d 650, cert. denied, 259 Conn. 931, 793 A.2d 1085 (2002).
In his affidavit, Cohen attests in relevant part: "RACNJ and myself were the New Jersey purchaser-investor that Morris and RAC were found to have sold an unregistered business opportunity . . ." Cohen's statements alone are not sufficient to meet the plaintiffs' initial burden as they are self-serving, not based on personal knowledge and conclusory. The court turns to Igdalsky's affidavit, in which he attests that the securities and business investment division investigated the defendants, as a result of receiving copy of the plaintiffs' complaint and evidence in the present case, deposed Cohen concerning his claims against the defendants, issued the cease and desist order, and, at the defendants' request, scheduled a hearing on the matter. Igdalsky further attests that, on the date of the hearing, "Mr. Cohen was present and prepared to testify on behalf of the Banking Commission . . . At that time, defendants indicated a desire to resolve the matters alleged in the [cease and desist order] . . . and representatives of defendants and my office reached an agreement. Mr. Cohen was present at the Department of Banking's offices and apprised of the terms of the settlement . . . My office told [the defendants'] Attorney Rini and Mr. Morris that Mr. Cohen and RACNJ were the New Jersey purchaser-investor to whom RAC, through its agent Morris, as president of RAC, sold an unregistered business opportunity in violation of the Act, as admitted in the Consent Order." The court notes that Igdalsky does not aver in his affidavit to the fact that the defendants sold an unregistered business opportunity to the plaintiffs, but only that he told the defendants that they did so.
In his affidavit, Morris attests: "I was present at the offices of the Banking Commissioner on the date of the hearing. While James D. Cohen was in the offices of the Banking Commissioner, neither James D. Cohen nor any representative or agent of RACNJ was present in the room or privy to any negotiations that occurred between RAC, Morris and the attorney for the Banking Commissioner that resulted in an agreement embodied in the Consent Order." He further attests that "Sidney A. Igdalsky was not present, nor participated in the negotiations that resulted in the Consent Order."
Morris' affidavit recites facts that contradict Igdalsky's attestations regarding Idgalsky's presence and participation at the time that the defendants entered into the consent order. Thus, in view of Morris' affidavit, there is an issue of fact as to whether Igdalsky's affidavit is based on personal knowledge. Accordingly, the court concludes that the plaintiffs' affidavits are insufficient to support summary judgment pursuant to Practice Book § 17-46. The court need not, therefore, address the defendants' alternative objections to the affidavits.
The plaintiffs have raised an objection of their own. Though nonevidentiary in nature, it too must be addressed. The plaintiffs request that the defendants' opposition papers be "stricken" pursuant to Practice Book § 17-48, which provides in relevant part: "Should it appear to the satisfaction of the judicial authority at any time that any affidavit is made or presented in bad faith or solely for the purpose of delay, the judicial authority shall forthwith order the offending party to pay to the other party the reasonable expenses which the filing of the affidavit caused that party to incur, including attorneys fees."
"[I]t is conceivable that in some case an affidavit might be so palpably false that the court could properly strike it from the file and render a summary judgment. To support such a judgment, however, there would have to be a finding of the court to the effect that the affidavit was false." (Internal quotation marks omitted.) Zbras v. St. Vincent's Medical Center, 91 Conn.App. 289, 293, 880 A.2d 999, cert. denied, 276 Conn. 910, 886 A.2d 424 (2005); Perri v. Cioffi, 141 Conn. 675, 680, 109 A.2d 355 (1954).
Because the plaintiffs have provided no factual basis to support a finding that the defendant's opposition papers and counter affidavits are false and have been submitted in bad faith, the court overrules the plaintiffs' objection.
II
The court now turns to the merits of the motion. As noted previously, the plaintiffs allege in count one of the complaint that the defendants violated several Connecticut Business Opportunity Investment Act provisions, and, in count two, they allege that these violations entitle the plaintiffs to recovery of damages, including reasonable attorneys fees. They move for summary judgment on both counts on the ground that no genuine issue of material fact exists as to whether the defendants violated the Connecticut Business Opportunity Investment Act because the defendants entered into a consent order with the banking commissioner in which they admitted to selling an unregistered business opportunity to the plaintiffs and the plaintiffs, therefore, are entitled to judgment as a matter of law. The plaintiffs also move for summary judgment on the alternative ground that, pursuant to the doctrine of collateral estoppel, the defendants are precluded from relitigating the issue of whether they violated the Connecticut Business Opportunity Investment Act.
The defendants counter that the consent order does not admit that RAC, through its agent Morris, sold a business opportunity to either plaintiff and, instead, admits only that the defendants have sold unregistered business opportunities in violation of the Connecticut Business Opportunity Investment Act. They maintain that RAC neither admits nor denies in the consent order that it failed to provide required disclosure documents, and that Morris neither admits nor denies in the consent order the allegations made by the banking commissioner. They further argue that the plaintiffs have failed to show the absence of any genuine issue of material fact as the multiple causes of action contained in counts one and two. In their reply memorandum, the plaintiffs argue that the defendants are committing a fraud upon the court by challenging the consent order's validity. The plaintiffs also reiterate their argument that the doctrine of collateral estoppel precludes the defendants from relitigating the issue of whether they violated the Connecticut Business Opportunity Investment Act because the banking commissioner made a final determination of that claim.
Section 36b-62(a) of the Connecticut Business Opportunity Investment Act provides:
"Prior to the sale or offer for sale of a business opportunity the seller shall register said business opportunity with the commissioner by: (1) Filing a copy of the disclosure statement required by section 36b-63; (2) furnishing a bond in accordance with the provisions of section 36b-64; (3) providing a sworn to and certified statement containing the information required by section 36b-65; (4) providing the commissioner in accordance with subsection (b) of this section with an irrevocable consent appointing the commissioner or the commissioner's successor in office to be such seller's attorney to receive service of any lawful process in any noncriminal suit, action or proceeding which arises under sections 36b-60 to 36b-80, inclusive, or any regulation or order adopted or issued under the provisions of said sections; and (5) submitting a nonrefundable registration fee of four hundred dollars." Section 36b-74(b) provides: "Any purchaser-investor injured by a violation of sections 36b-60 to 36b-80, inclusive, or by a business opportunity seller's breach of contract subject to said sections or any obligation arising therefrom may bring an action for recovery of damages, including reasonable attorneys fees."
"[The Connecticut Business Opportunity Investment Act] was enacted to police business opportunities which are characterized by high pressure salesmen who flash in and out of motel rooms and are gone before the investor knows he's been fleeced . . . [T]he [a]ct requires sellers who plan to sell business opportunity investment programs to register such programs with the banking commissioner. Sellers of business opportunity investment programs are also required to provide prospective purchaser-investors with information necessary to make an informed decision before they make payment to the seller. In certain circumstances, sellers of these programs are also required to represent that the purchaser-investor's investments are secured in such a way as to actually provide security in the form of a bond or trust account. Finally, the [a]ct prohibits representations which tend to mislead prospective purchaser-investors." (Citation omitted; internal quotation marks omitted.) Hackett v. Bill's Floor Sanding, Inc., Superior Court, judicial district of Hartford, Docket No. CV 00 0598328 (May 30, 2002, Hennessey, J.) (32 Conn. L. Rptr. 385, 386-87). "If a business opportunity seller fails to comply with specified provisions of the [act], uses untrue or misleading statements or fails timely to deliver equipment, supplies, products or services, the purchaser-investor, upon written notice to the seller, may void the contract and receive from the seller all sums paid to the seller . . . Further, purchasers who are injured by any violation of the [the Connecticut Business Opportunity Investment Act] or by the seller's breach of contract may bring an action for recovery of damages, including reasonable attorneys fees." (Citation omitted; emphasis added.) Id., 387. Lastly, "[the Connecticut Business Opportunity Investment Act] defines `seller' as `a person who is engaged in the business of selling or offering for sale business opportunities or any agent or representative of such person.'" (Emphasis added.) Id. "In order to establish a violation, a purchaser-investor must show that he was sold a business opportunity." Eye Associates, P.C. v. IncomRx Systems Ltd. Partnership, 912 F.2d 23, 26 (2d Cir. 1990).
With respect to consent orders, our Appellate Court has stated: "The settlement of disputes by informal processes serves the public interest as an alternative to litigation . . . Informal dispositions enable agencies to more efficiently allocate their limited resources and thereby maximize their capacity to serve the public . . . Procedures leading toward such disposition are themselves informal and are developed by the agencies themselves . . . When informal settlements are achieved they are considered binding . . . and are strictly interpreted by the courts . . .
Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it . . .
In considering the scope of the settlement between the parties [the court is] bound by the four corners of the stipulation. [The court must] bear in mind that the stipulation is in fact a contract, and that the intention of the parties controls the construction of that contract . . . Their intention is determined from the language used . . . Any concealed intent which either party may have harbored plays no part in this determination . . . The words as written, moreover, must be accorded a fair and reasonable construction and their common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.
(Citations omitted; internal quotation marks omitted.) Albert Mendel Son, Inc. v. Krogh, 4 Conn.App. 117, 121-23, 492 A.2d 536 (1985).
Since a consent order is, in fact, a contract, the principles governing contract interpretation apply. "A contract is to be construed as a whole and all relevant provisions will be considered together . . . A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms." (Citation omitted; internal quotation marks omitted.) HLO Land Ownership Associates Ltd. Partnership v. Hartford, 248 Conn. 350, 356-57, 727 A.2d 1260 (1999). "[W]here the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms . . . Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law . . . The court's determination as to whether a contract is ambiguous is a question of law." (Internal quotation marks omitted.) Krane v. Krane, 99 Conn.App. 429, 431, 913 A.2d 1143 (2007).
In support of their argument that no genuine issue of material fact exists regarding whether the defendants violated the Connecticut Business Opportunity Investment Act, the plaintiffs present a certified copy of the cease and desist order, a certified copy of the consent order, a copy of the letter of intent to form RACNJ and a copy of the distributorship agreement.
As to Morris individually, Morris neither admits nor denies that he sold unregistered business opportunities. Rather, he merely acknowledges that the banking commissioner has so alleged. Although the consent order's dichotomy between RAC's unqualified admission to the allegation and Morris' mere acknowledgment thereto creates a distinction without a difference under the Connecticut Business Opportunity Investment Act's definition of seller, which includes the seller or any agent or representative of the seller; see Hackett v. Bill's Floor Sanding, Inc., supra, 32 Conn. L. Rptr. 387; the consent order fails to establish the critical fact that the plaintiffs were the purchasers.
In the consent order, RAC admits that it, through its agent Morris, as president of RAC, sold unregistered business opportunities. The consent order is signed by Morris, individually and on behalf of RAC.fn6 Above his signature, it states: "I, Michael P. Morris, state on behalf of Roll-A-Cover, LLC, that I have read the foregoing Consent Order, that I know and fully understand its contents; that I am authorized to execute this Consent Order of behalf of Roll-A-Cover, LLC; that Roll-A-Cover . . . voluntarily consents to the issuance of this Consent Order . . ." Critically, the consent order does not mention Cohen or RACNJ. The cease and desist order is likewise silent in this regard.
The plaintiffs have not satisfied their burden. The consent order fails to establish that the plaintiffs were the purchasers of the unregistered business opportunity sold by the defendants. Neither the consent order nor the cease and desist order states the identity of the purchasers and the plaintiffs have not offered admissible uncontroverted evidence showing that they were the purchasers to whom the defendants admit selling an unregistered business opportunity in violation of the Connecticut Business Opportunity Investment Act.
As for the plaintiffs' alternative argument, "collateral estoppel . . . prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined." (Citations omitted; internal quotation marks omitted.) Powell v. Infinity Ins. Co., supra, 282 Conn. 600-01. "The doctrine of collateral estoppel is applicable to administrative rulings in general." Hill v. State Employees Retirement Commission, 83 Conn.App. 599, 613, 851 A.2d 320, cert. denied, 271 Conn. 909, 859 A.2d 561 (2004). Assuming without deciding that the other elements of the doctrine of collateral estoppel are satisfied, the plaintiff's reliance on the doctrine is misplaced, because "only an issue that has actually been litigated has a preclusive effect on subsequent litigation. An issue that has been resolved by virtue of a settlement agreement has not actually been litigated." Id. "[I]n the case of a judgment entered by confession, consent, or default, none of the issues is actually litigated." (Emphasis added; internal quotation marks omitted.) Id., 612. Moreover, as stated above, the consent order does not establish that the defendants sold an unregistered business opportunity to the plaintiffs.
Accordingly, the plaintiffs have not met their burden, for they have not demonstrated the absence of a genuine issue of material fact regarding whether the defendants sold an unregistered business opportunity to the plaintiffs.
CONCLUSION
For the foregoing reasons, the plaintiffs' motion for partial summary judgment on counts one and two is denied.