Opinion
No. CV054012466S
December 28, 2006
MEMORANDUM OF DECISION RE OBJECTION TO APPLICATION FOR PREJUDGMENT REMEDY
This action arises out of a construction contract dispute between the plaintiff homeowners and the defendant contractor. In conjunction with the defendant filing a set-off and counterclaim, he has filed an application for a prejudgment remedy. The plaintiffs have filed an objection to the defendant's application on the basis that the application is barred under the theory of res judicata and/or collateral estoppel. That claim arises out of a prior application for prejudgment remedy which was heard and denied in a complaint entitled Gagner v. Coveny arising out of the same contract but never filed as a separate cause of action.
In Dinnis v. Roberts, CV90-296974 (January 15, 1992) Connecticut Superior Court, Judicial District of New Haven, Hodgson, J. [ 5 Conn. L. Rptr. 467], the court found that although the granting and/or denial of a prejudgment remedy is a final judgment for purposes of an appeal, the hearing itself is interlocutory. However, citing State v. Ellis, 197 Conn. 346, 464, 497 A.2d 974 (1985) the court concluded that following a hearing, such as a prejudgment remedy, where the opponents have been afforded a full opportunity to be heard and a decision made, "res judicata and collateral estoppel . . . operate to bar relitigation of issues which a litigant has already litigated or had an opportunity to litigate in a prior proceeding, and that such preclusion is not limited to situations producing a judgment. See also West Haven Nursing Center v. Ferretti, et al, No. CV94-362667 (September 19, 1994), Connecticut Superior Court, Judicial District of New Haven, Meadow, State Trial Referee [ 12 Conn. L. Rptr. 469].
In this case, the court has reviewed the application and complaint and the initial prejudgment remedy application as well as the allegations of the complaint in the set-off and counterclaim. They are virtually identical. The only difference between the two claims is in the set-off and counterclaim, the defendant claims unjust enrichment and breach of the covenant of good faith and fair dealing.
In Ahlers v. Russo, No. 520385 (April 20, 1994) Connecticut Superior Court, Judicial District of New London at New London, Leuba, J. [ 11 Conn. L. Rptr. 373], an application for prejudgment remedy was filed pursuant to a set-off and counterclaim although a prior application for prejudgment remedy had been denied. The defendant/plaintiff in the set-off and counterclaim argued that the new application alleging the same facts gave rise to a different theory of law.
The application was denied. The court cited England v. England, 184 Conn. 85, 90, 440 A.2d 790 (1981) in which the Supreme Court concluded a defendant was not entitled to a new hearing for a prejudgment remedy after denial in an initial hearing by simply changing the claim from a claim for money damages and substituting a prayer for equitable relief in the nature of specific performance. Concluding "no new hearing on probable cause is required as the amendment in this case has altered only the prayer for relief and clearly did not change the factual basis or series of transactions upon which the complaint was based. Baker v. Baker, 166 Conn. 476, 486, 352 A.2d 277 (1974).
As was indicated, this court has compared the affidavit and the complaint in the initial prejudgment remedy which was denied and the affidavit, set-off and counterclaim filed in the second application for prejudgment remedy and there is virtually no change in the factual basis for the request. The doctrine of res judicata, or related doctrines of collateral estoppel and preclusion, operate to bar relitigation of the issues to which parties have already litigated in a prior proceeding. The objection to the application for prejudgment is sustained.