Opinion
No. CV 06 4003584 S
April 8, 2008
MEMORANDUM OF DECISION
On December 16, 2005, the plaintiff, Claudia Weiss, filed a complaint against the defendant, Martin Weiss. The plaintiff filed an amended complaint on June 15, 2006, alleging breach of contract, breach of fiduciary duty, fraud, conversion, and statutory theft pursuant to General Statutes § 52-564. Before the court is the defendant's motion for summary judgment on the plaintiff's amended complaint and on the defendant's counterclaim for declaratory judgment, filed August 16, 2007.
This case has a long and tortured history, the relevant portions of which are recounted briefly here. The parties were married in 1987 and were partners in the practice of law from December 1988 until December 1999. In December 1999, the plaintiff commenced an action for dissolution of the marriage. As part of the dissolution process, the parties executed a separation agreement, which was later incorporated by the court into its judgment of dissolution. Paragraph nine of the agreement states in relevant part: "The wife shall receive 1/3 of all contingency fees generated from personal injury cases at the Law Offices of Weiss Weiss active as of November 1, 1999 and 50% of all fees generated from closed dissolution and custody files concluded as of November 1, 1999. The parties have also agreed that the wife shall receive a 20% interest in the fee generated from a recent stipulated settlement in the Second District Workers' Compensation Division entitled `COTE V. TOMASSO CONSTRUCTION.'"
Following a nine-day trial, which included twenty-two witnesses and seventy-three exhibits, the court entered a decree dissolving the marriage on January 3, 2003. See Weiss v. Weiss, Superior Court, judicial district of Tolland, Docket No. FA 99 0071672 (January 3, 2003, Scholl, J.). The court found that the parties had entered the separation agreement knowingly and voluntarily, and found the terms of the agreement, including the terms of paragraph nine, to be unambiguous. Pursuant to General Statutes § 46b-66(a), the court determined the agreement to be fair and equitable and incorporated it by reference into the court's judgment.
General Statutes § 46b-66(a) provides in relevant part: "In any case under this chapter where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court."
The plaintiff subsequently brought suit against the defendant in 2004 in federal district court, alleging breach of contract, breach of fiduciary duty, fraud and conversion. See Weiss v. Weiss, 375 F.Sup.2d 10, 14 (D.Conn. 2005). At issue was the meaning of paragraph nine of the separation agreement, specifically, whether the "personal injury cases" referenced included workers' compensation cases. The federal district court granted the defendant's motion to dismiss on June 15, 2005 on grounds that the court lacked subject matter jurisdiction over the matter.
On November 3, 2004, while the plaintiff's federal action was pending, the defendant filed a motion for clarification of the dissolution judgment with Judge Scholl, the trial judge. On April 20, 2005, Judge Scholl granted the defendant's motion for clarification, issuing an oral decision wherein she stated: "It seems to me [the language of paragraph nine is] clear and unambiguous that it means personal injury action. It doesn't mean workers' comp. If it did, they wouldn't have had to make the exception for the workers' comp matter regarding the Cote case and, therefore, I'm going to — I guess I grant the motion to clarify just to say that I believe there's — it does not include the workers' comp cases." (Transcript, defendant's affidavit in support of motion for summary judgment, exhibit H, p. 54.) The plaintiff filed an appeal of the clarification which was dismissed by the Appellate Court on June 22, 2005. The Supreme Court subsequently denied the plaintiff's petition for certification. Weiss v. Weiss, 276 Conn. 905, 884 A.2d 1027 (2005).
The Appellate Court's order dismissing the plaintiff's appeal identified no specific grounds for the dismissal.
The plaintiff commenced the instant action on December 16, 2005, and she filed an amended complaint on June 15, 2006. The amended complaint states causes of action in five counts. Count one alleges that the defendant breached the separation agreement by failing to pay the plaintiff the agreed one-third of the fees collected from personal injury cases active as of November 1, 1999. Count two alleges the defendant breached a fiduciary duty he owed the plaintiff by failing to disclose workers' compensation and other contingent fee matters to the plaintiff. Count three alleges the defendant's acts, referred to in count two, constituted fraud. Counts four and five allege conversion and theft pursuant to General Statutes § 52-564, respectively. All counts in the complaint depend on paragraph nine of the separation agreement being interpreted as the plaintiff asserts; that is, the term "personal injury cases" in the paragraph must include workers' compensation cases.
Count one also alleges the defendant breached the separation agreement by failing to pay the plaintiff's horse board for one year. In his reply memorandum and in oral argument, the defendant represented to the court that the parties had settled this claim.
On March 28, 2006, the defendant filed an answer, special defenses and a counterclaim seeking declaratory judgment that the term "personal injury cases" in paragraph nine of the separation agreement does not include workers' compensation cases. On August 16, 2007, the defendant filed a motion for summary judgment on the plaintiff's amended complaint as well as on the defendant's counterclaim, supported by the defendant's affidavit. Attached to the defendant's affidavit are various exhibits, including a certified copy of the transcript of Judge Scholl's April 20, 2005 oral decision on the defendant's motion for clarification. The plaintiff filed a memorandum in objection and the plaintiff's affidavit on December 18, 2007. The defendant filed a reply memorandum on February 29, 2008. The court heard the parties in oral argument on March 6, 2008.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
"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. In 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.) Colangelo v. Heckelman, 279 Conn. 177, 182, 900 A.2d 177 (2006).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the 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 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 . . . 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." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
"[S]ummary judgment is an appropriate vehicle for raising a claim of res judicata . . ." (Citations omitted.) Joe's Pizza, Inc. v. Aetna Life Casualty Co., 236 Conn. 863, 867 n. 8, 675 A.2d 441 (1996). "Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim of res judicata." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993).
In support of his motion for summary judgment, the defendant argues that the plaintiff's claims are barred by the doctrines of res judicata and collateral estoppel, as the issue of the meaning of paragraph nine has been litigated and decided. The plaintiff counters that her claims are not barred by res judicata and collateral estoppel. She contends that the defendant's motion to clarify was in fact a motion to open and modify the dissolution judgment. As a result, the plaintiff maintains, the court was without jurisdiction as the motion was filed more than four months after the court rendered the dissolution judgment. Further, she argues that her only remedy was to bring a separate suit, as the family court lost jurisdiction over the agreement distributing the couples' property once Judge Scholl's order became final.
A
As a preliminary matter, the court addresses the plaintiff's argument that the defendant's motion for clarification was really a motion to open and modify the dissolution judgment. A motion to open or set aside a civil judgment must be made within four months of the judgment. General Statutes § 52-212a. The defendant's motion for clarification was filed November 3, 2004, and so would not have been timely had it been a motion to open the judgment. The motion, as a motion for clarification, was proper, however, even given the date of filing. In Holcombe v. Holcombe, 22 Conn.App. 363, 365, 576 A.2d 1317 (1990), the plaintiff argued that because the Connecticut rules of practice do not specify a motion for clarification, the court's clarification order, issued upon the defendant's motion, was in fact a modification of the dissolution judgment. The court disagreed, stating: "Motions for interpretation or clarification, although not specifically described in the rules of practice, are commonly considered by trial courts and are procedurally proper." Id., 366. Further, the court noted, "[t]here is no time restriction imposed on the filing of a motion for clarification." Id. See also Avalon Bay Communities, Inc. v. Plan Zoning Commission, 260 Conn. 232, 246, 796 A.2d 1164 (2002) (motions for clarification may be made at any time and are grounded in trial court's equitable authority to protect integrity of its judgments).
General Statutes § 52-212a provides in relevant part:
Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed.
The court in the present case properly considered the defendant's motion as a motion for clarification of the court's January 3, 2003 dissolution judgment. It is noted that "the purpose of a clarification is to take a prior statement, decision or order and make it easier to understand. Motions for clarification, therefore, may be appropriate where there is an ambiguous term in a judgment or decision . . . but, not where the movant's request would cause a substantive change in the existing decision." (Citation omitted.) In re Haley B., 262 Conn. 406, 413, 815 A.2d 113 (2003). Judge Scholl's order of April 20, 2005 did not change a single word of the dissolution judgment, nor cause any substantive change in the final decision.
As for the plaintiff's claim that she had no other recourse but to file the present suit, the court disagrees. The four-month period for opening judgments found in General Statutes § 52-212a does not apply in cases of fraud. "A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud . . . The power of the court to vacate a judgment for fraud is regarded as inherent and independent of statutory provisions authorizing the opening of judgments; hence judgments obtained by fraud may be attacked at any time." (Citation omitted; internal quotation marks omitted.) Billington v. Billington, 220 Conn. 212, 217-18, 595 A.2d 1377 (1991). A stipulated judgment may also be opened beyond statutory deadlines if a party shows actual absence of consent or mutual mistake of the parties. Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466, 440 A.2d 159 (1981). The plaintiff here, therefore, could have brought a motion to open the dissolution judgment based on fraud, absence of consent, or mutual mistake even following the close of the four-month period found in § 52-212a.
The court here is not finding that the plaintiff could have fulfilled her obligation to prove fraud, actual absence of consent, or mutual mistake of the parties.
B
"The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction . . . If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made . . . Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum . . . More specifically, collateral estoppel, or issue preclusion . . . 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 . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered." (Citations omitted; internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 600-01, 922 A.2d 1073 (2007).
"Because these doctrines are judicially created rules of reason that are `enforced on public policy grounds'; Stratford v. International Ass'n. of Firefighters, AFL-CIO, Local 998, 248 Conn. 108, 127, 728 A.2d 1063 (1999); [our Supreme Court has] observed that whether to apply either doctrine in any particular case should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . . . and the competing interest of the plaintiff in the vindication of a just claim . . . These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation . . . The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest." (Internal quotation marks omitted.) Powell v. Infinity Ins. Co., supra, 282 Conn. 601-02.
In support of her argument that res judicata should not apply to bar her claims, the plaintiff cites Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 674 A.2d 1290 (1996). Approximately two years following the dissolution of their marriage, the plaintiff in Delahunty filed an eight-count complaint against the defendant alleging that, while the parties were married, the defendant fraudulently cashed in a life insurance policy owned by the plaintiff and converted the funds. Id., 584-85. The defendant moved for summary judgment, arguing that because in the prior dissolution action the plaintiff had claimed ownership of the proceeds of the insurance policy and had offered evidence regarding how the defendant came to possess the funds, the plaintiff's subsequent action was barred by res judicata. Id., 586.
The trial court granted the defendant's motion, finding that in the dissolution action, the plaintiff had made a claim for the policy funds; asserted that the defendant had come to possess the funds by means of fraud; put on evidence to establish the defendant had forged the plaintiff's signature; and cross-examined the defendant regarding the conversion of the policy. Id. The trial court found that the dissolution action was the proper forum for all causes of action arising out of the defendant's alleged misconduct, and, therefore, the plaintiff's subsequent tort action was barred by res judicata. Id., 587.
On appeal, the Supreme Court considered the issue of "whether the doctrine of res judicata bars a party to a dissolution action from bringing a post-dissolution action against a former spouse for damages incurred as a result of conduct that had occurred during the marriage." Id., 583. The court answered this question in the negative, concluding that "the policy considerations commonly advanced to justify the doctrine of res judicata are not compelling in this context and that it would be an inappropriate application of the principles of res judicata to require tort actions based on claims arising between married persons to be litigated in a dissolution proceeding." Id., 592. The court noted that "[a] tort action, the purpose of which is to redress a legal wrong by an award of damages, is not based on the same underlying claim as an action for dissolution, the purpose of which is to sever the marital relationship, to fix the rights of the parties with respect to alimony and child support, and to divide the marital estate." Id. Accordingly, the court reversed the decision of the trial court and remanded the case for further proceedings. Id., 602.
The present case is factually distinguishable from Delahunty. While the plaintiff's complaint sounds partially in tort, the entirety of the complaint rests on a contract claim; more specifically, the complaint depends upon an interpretation of the separation agreement, which is regarded as a contract between the parties. See Russell v. Russell, 95 Conn.App. 219, 221-22, 895 A.2d 862 (2006). Judge Scholl's dissolution judgment reviews the separation agreement thoroughly, and in particular, addresses specific terms used therein. The final judgment, combined with the court's oral decision on the defendant's motion for clarification, makes clear that the matter of the meaning of paragraph nine of the separation agreement has been decided. To allow the plaintiff's current claims to proceed would undermine the primary purposes of the doctrine of res judicata: promotion of judicial economy, prevention of inconsistent judgments and promotion of finality of judgments.
The plaintiff cites Bouchard v. Sundberg, 80 Conn.App. 180, 834 A.2d 744 (2003), in support of her argument that collateral estoppel does not bar her present action. In Bouchard, the dissolution judgment between the parties included a separation agreement which mandated that the parties and their children participate in counseling in order to facilitate visitation between the plaintiff father and the children. Id., 183. Following the judgment, the plaintiff filed two separate motions attempting to compel the defendant to participate in counseling and facilitate the children's participation. Id., 184. The first motion resulted in a court order requiring the defendant to attend the counseling sessions; the second motion resulted in the court modifying the previous order in regard to mandatory therapy. Id. Thereafter, the plaintiff filed a third motion to compel the defendant's compliance. Id., 185. The court denied the motion to compel, determining that continued counseling was not in the children's best interests. Id. The plaintiff subsequently brought a six-count action, including a claim that the defendant had breached the parties' separation agreement in failing to participate in counseling. Id.
The defendant filed a motion for summary judgment with regard to the count alleging breach of contract. Id. The court found that the underlying issue in the series of motions and orders following the dissolution judgment and the plaintiff's breach of contract count was identical: the defendant's duty to comply with the terms of the separation agreement. Id., 186. The court therefore determined that the plaintiff's contract claim was barred by collateral estoppel and granted the defendant's motion for summary judgment. Id.
The Appellate Court reversed, distinguishing between the post-dissolution orders and the plaintiff's breach of contract claim. The court determined that the orders concerned the issue of custody of the children and were based on equitable considerations with respect to the best interests of the children pursuant to General Statutes § 46b-56(b). Id., 189. The court stated that: "[t]he finding by the court that it was in the best interests of the children no longer to attend counseling sessions, and, accordingly, that [the defendant] had no duty to comply with the prior postjudgment orders, does not require a determination of relevant issues as to whether [the defendant] breached the parties' agreement, separate and apart from the orders, to support the plaintiff's attempt at reconciliation." Id., 189-90. Concluding that the issues involved in a breach of contract action were neither actually litigated nor necessarily determined in the dissolution action, the court held that collateral estoppel did not bar the plaintiff's contract claim. Id., 190.
Again, the court finds that Bouchard is distinguishable from the present case. The court in Bouchard held that there were differences between custody and visitation matters and the issues involved in a breach of contract action. The present case presents only the issue of whether the meaning of paragraph nine of the separation agreement has been decided, and so does not depend on equitable considerations even though the court's order incorporating the agreement was entered under the court's equitable authority pursuant to General Statutes § 46b-66(a). "An agreement between divorced parties . . . that is incorporated into a dissolution decree should be regarded as a contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings. [Where] . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law." (Internal quotation marks omitted.) Wolosoff v. Wolosoff, 91 Conn.App. 374, 381, 880 A.2d 977 (2005).
The issue involved in the plaintiff's present action is the meaning of paragraph nine of the separation agreement. In both the dissolution judgment and the subsequent order of clarification, the court decided this issue. Therefore, the plaintiff's present action is barred by the doctrine of collateral estoppel.
C
Also before the court is the defendant's motion for summary judgment on his counterclaim seeking declaratory judgment that the term "personal injury cases" in paragraph nine of the separation agreement does not include workers' compensation cases. A necessary condition for maintenance of a declaratory judgment action is that there exists "an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties." Practice Book § 17-55(2). It is the opinion of the court that the foregoing decision in the defendant's favor dispels any uncertainty as to the defendant's rights.
CONCLUSION
For the aforementioned reasons, the court grants the defendant's motion for summary judgment as to each count of the plaintiff's amended complaint, and denies the defendant's motion for summary judgment on the defendant's counterclaim for declaratory judgment.