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AINSWORTH HALL v. GULAID O. GULAID

(AC 37901)

DiPentima, C. J., and Lavine and Sheldon, Js.

Argued February 8—officially released May 31, 2016

(Appeal from Superior Court, judicial district of

Hartford, Robaina, J.)

Edward W. Case, for the appellant (plaintiff).
Michael J. Carreira, for the appellee (defendant).
Opinion

DiPENTIMA, C. J. The plaintiff, Ainsworth Hall,

appeals from the summary judgment rendered in favor

of the defendant, Gulaid O. Gulaid. The plaintiff’s sole

claim1 on appeal is that the trial court improperly concluded that his negligence action brought pursuant to

General Statutes § 52-5932 was barred by res judicata.

We disagree and, accordingly, affirm the judgment of

the trial court.

The record reveals the following undisputed facts

and procedural history that are relevant to this appeal.

This appeal stems from a motor vehicle accident that

occurred on March 31, 2012, in which an automobile

being operated by the defendant collided with a trailer

being towed by the plaintiff’s automobile. The police

accident report identified the operators involved in the

accident as the plaintiff and the defendant. The report

also noted the defendant’s Connecticut driver’s license

number and reported his birth year as 1993. The accident report identified Osman M. Gulaid (Osman), who

resided at the same address as the defendant, as the

owner of the automobile the defendant was operating

at the time of the accident.

The plaintiff commenced a negligence action against

Osman on July 11, 2013 (first action). In a single count

complaint, he alleged that Osman, while ‘‘operating his

motor vehicle,’’ ‘‘collided with the trailer of the motor

vehicle operated by the plaintiff.’’ As a result, the plaintiff suffered various injuries that were caused by

Osman’s alleged negligence and careless operation of

his automobile. In response, Osman filed his answer

and special defenses, in which he denied that he was the

operator of the vehicle that collided with the plaintiff’s

trailer and caused the plaintiff’s injuries.

On January 17, 2014, Osman responded to the plaintiff’s interrogatories and requests for production. Relevant to this appeal, Osman answered that he was born in

1946, provided his Connecticut driver’s license number,

and confirmed that he was the owner of the vehicle

involved in the accident with the plaintiff. To an interrogatory seeking the ‘‘names and addresses of all persons known to you who were present at the time of

the incident alleged in the [c]omplaint or who observed

or witnessed all or part of the incident,’’ Osman

answered as follows: ‘‘I know my son, [the defendant]

was present. I am not aware of the name(s) of the other

individuals.’’ Furthermore, in response to two interrogatories starting with the prefatory clause, ‘‘[i]f you were

the operator of any motor vehicle involved in the incident that is the subject of this action,’’ Osman answered:

‘‘Not applicable.’’

On May 13, 2014, Osman moved for summary judgment on the ground that there was no genuine issue of

material fact that he was not the operator of the vehicle
that collided with the plaintiff’s trailer and caused his

resulting injuries. The court, Huddleston, J., issued an

order granting Osman’s motion for summary judgment

on June 9, 2014. It noted that during discovery, Osman

had stated that he was born in 1946, had denied that

he was the operator of the vehicle, and had admitted

that his son was present at the accident site. The court

further noted that the police accident report identified

the operator of the vehicle as the defendant, born in

1993.

The plaintiff later commenced another action on June

17, 2014 (second action). The complaint in the second

action identified the defendant as the operator and

Osman as the owner of the vehicle that struck the plaintiff’s trailer and injured the plaintiff, but otherwise

repeated the allegations of the complaint in the first

action. This complaint made no mention of the applicability of § 52-593. On June 19, 2014, the defendant and

Osman moved for summary judgment on the ground

that there was no genuine issue of material fact that

the statute of limitations, General Statutes § 52-584,3

had run. On July 14, 2014, the court, Hon. Jerry Wagner,

judge trial referee, held a hearing on the motion for

summary judgment. The plaintiff was not present.4

From the bench, the court granted the motion for summary judgment.In its order,the court noted that‘‘[n]othing ha[d] been filed in opposition.’’ Furthermore,

because ‘‘[n]o one ha[d] appeared to [oppose] this

motion at short calendar and the statute of limitations

on this matter ha[d] long run,’’ there was no genuine

issue of material fact that the action was barred by the

statute of limitations.

The plaintiff thereafter commenced the present

action against the defendant alone on December 17,

2014. The complaint in this action included an allegation

not contained in the previous complaint, stating that

the action had been brought pursuant to § 52-593, the

wrong defendant statute. It alleged in a single count

that the defendant caused the plaintiff’s injuries through

his negligent and careless operation of the automobile

owned by Osman. On January 6, 2015, the defendant

filed a motion for summary judgment on the ground

that there was no genuine issue of material fact that the

statute of limitations had run. In addition, the defendant

argued that res judicata barred the action and that § 52-

593 could not save it. On January 20, 2015, the plaintiff

filed an objection to the motion for summary judgment,

arguing, inter alia, that the ‘‘existence of . . . § 52-593

raise[d] an issue of material fact [that] defeat[ed] [the

defendant’s motion for] [s]ummary [j]udgment . . . .’’

On February 2, 2015, the court, Robaina, J., held a

hearing on the defendant’s motion for summary judgment. The plaintiff was not present at the hearing. A

little more than two weeks later, the plaintiff filed a

caseflow requestto argue his objection to the motion for

summary judgment, indicating that he had not received
notice of the short calendar hearing.5

It does not appear

that the court acted on the plaintiff’s request. On March

16, 2015, the defendant’s motion for summary judgment

was granted on the ground that the ‘‘entry of summary

judgment in [the second action] preclude[d] the claim

brought in this case.’’ The plaintiff filed a motion to

reargue and a motion for articulation. Both were denied.

This appeal followed.

As a threshold matter, we set forth the applicable

standard of review and discuss the legal principles relevant to our resolution of the plaintiff’s claim. It is well

established that our standard of review over a trial

court’s decision to grant summary judgment is plenary.

Finkle v. Carroll, 134 Conn. App. 278, 282, 37 A.3d

851 (2012), aff’d, 315 Conn. 821, 110 A.3d 387 (2015).

‘‘Pursuant to Practice Book § 17-49, 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. . . .

A material fact is a fact which will make a difference

in the result of the case.’’ (Internal quotation marks

omitted.) Id. Summary judgment is the appropriate

method for resolving a claim of res judicata. Zanoni v.

Lynch, 79 Conn. App. 325, 338, 830 A.2d 314, cert.

denied, 266 Conn. 928, 837 A.2d 803 (2003).

‘‘The doctrine of res judicata [claim preclusion] holds

that an existing final judgmentrendered 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.’’ (Internal quotation marks omitted.)

Powell v. Infinity Ins. Co., 282 Conn. 594, 600, 922 A.2d

1073 (2007). ‘‘This court has recognized that a judgment

obtained through the grant of summary judgment

against a plaintiff constitutes a judgment on the merits

for purposes of res judicata.’’ (Internal quotation marks

omitted.) Boone v. William W. Backus Hospital, 102

Conn. App. 305, 311, 925 A.2d 432, cert. denied, 284

Conn. 906, 931 A.2d 261 (2007). Moreover, ‘‘[t]he appropriate inquiry with respect to [claim] preclusion is

whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . . . The

rule of claim preclusion prevents reassertion of the

same claim regardless of what additional or different

evidence or legal theories might be advanced in support

of it.’’(Citation omitted; emphasis omitted; internal quotation marks omitted.) Sotavento Corp. v. Coastal Pallet

Corp., 102 Conn. App. 828, 834, 927 A.2d 351 (2007).

We are mindful that, as a judicially created rule of reason that is enforced on public policy grounds; Powell
v. Infinity Ins. Co., supra, 601; our Supreme Court has

‘‘observed that whether to apply [res judicata] 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.’’ (Internal

quotation marks omitted.) Id.

The crux of the plaintiff’s argument on appeal is that

the doctrine of res judicata should not be applied to

§ 52-593, a remedial statute.6 This argument is premised

on the plaintiff’s belief that neither of his previous two

actions ‘‘were ever tried on the merits of the underlying

negligence claim.’’ Therefore, he claims that the statute

provides him the statutory right to commence a new

action against the defendant within one year of the first

action being terminated. Further, the plaintiff contends,

because res judicata is a ‘‘judicially created rule of reason that is enforced on public policy grounds,’’ and

none of those grounds apply to the facts of this case,

the court should not have mechanically applied res

judicata to frustrate the ‘‘wrong defendant’’ statute’s

remedial purpose. We disagree.

The plaintiff’s argumentrests on his assertion that the

second action did not conclude with a final judgment

rendered upon the merits of the case. The plaintiff,

however, fails to recognize that ‘‘[a] judgment on the

merits is one which is based on legal rights as distinguished from mere matters of practice, procedure, jurisdiction or form. . . . A decision with respect to the

rights and liabilities of the parties is on the merits where

it is based on the ultimate fact or state of facts disclosed

by the pleadings or evidence, or both, and on which the

right of recovery depends.’’ (Citations omitted; internal

quotation marks omitted.) Rosenfield v. Cymbala, 43

Conn. App. 83, 91–92, 681 A.2d 999 (1996). In the second

action, the pleadings and evidence presented to the

court established that the statute of limitations had run

because the automobile accident occurred in March,

2012, and the second action was commenced in June,

2014. Therefore, the court granted summary judgment

on the ground that there was no genuine issue of material fact that the statute of limitations had run, barring

the plaintiff’s right of recovery. In short, the second

action was decided on the merits.

The court in the second action was not presented

with any opposition to the motion for summary judgment, nor did the record include any reference to § 52-

593. We are mindful that ‘‘[t]he appropriate inquiry with

respect to [claim] preclusion is whether the party had

an adequate opportunity to litigate the matter in the

earlier proceeding . . . .’’ (Emphasis in original; internal quotation marks omitted.) Sotavento Corp. v.

Coastal Pallet Corp., supra, 102 Conn. App. 834. After

a thorough review of the record, we conclude that the
plaintiff had an adequate opportunity to litigate the

matter. To the complaint in the second action, the plaintiff appended Judge Huddleston’s order from the first

action granting the defendant’s motion for summary

judgment on the ground that there was no issue of

material fact that Osman was not the operator of the

automobile that struck the plaintiff’s trailer. After the

second action was terminated by Judge Wagner on the

ground that there was no issue of material fact that the

statute of limitations had run,ratherthan filing a motion

to reargue pursuant to Practice Book § 11-12, the plaintiff filed a motion for default for failure to appear on

July 24, 2014, which was denied within the week. A

motion to reargue would have been the appropriate

response to Judge Wagner’s order because the purpose

of a motion to reargue is ‘‘to demonstrate to the court

that there is some decision or some principle of law

which would have a controlling effect, and which has

been overlooked, or that there has been a misapprehension of facts.’’ (Internal quotation marks omitted.)

Opoku v. Grant, 63 Conn. App. 686, 692, 778 A.2d 981

(2001). In this case, the plaintiff could have alerted the

courtthatit had overlooked the applicability of § 52-593.

Finally, the plaintiff’s contention that res judicata is

inapplicable in a case involving a remedial statute is

not supported by case law. On the contrary, our

Supreme Court has explained that as pertaining to General Statutes § 52-592, it did not ‘‘discern . . . [an]

intent to create an exception to the principles of res

judicata thatrequire, at some point, an end to litigation.’’

Hughes v. Bemer, 206 Conn. 491, 495, 538 A.2d 703

(1988). Because we have stated that ‘‘the purpose and

language of . . . §§ 52-592 and 52-593 are closely analogous’’; Henriquez v. Allegre, 68 Conn. App. 238, 244

n.10, 789 A.2d 1142 (2002); we apply our Supreme

Court’s reasoning in Hughes and do not accept the

plaintiff’s invitation to create an exception to the principles of res judicata in an action brought under § 52-

593. Accordingly, the plaintiff’s claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The plaintiff briefed a second issue, namely, that he was denied due

process of law pursuant to the federal and state constitutions. At oral argument in this court, however, the plaintiff’s counsel withdrew this claim.

2 General Statutes § 52-593 provides in relevant part: ‘‘When a plaintiff in

any civil action has failed to obtain judgment by reason of failure to name

the right person as defendant therein, the plaintiff may bring a new action

and the statute of limitations shall not be a bar thereto if service of process

in the new action is made within one year after the termination of the

original action. . . .’’

3 General Statutes § 52-584 provides in relevant part: ‘‘No action to recover

damages for injury to the person, or to . . . personal property, caused by

negligence, or by reckless or wanton misconduct . . . shall be brought but

within two years from the date when the injury is first sustained . . . .’’

4 The plaintiff’s counsel later claimed that the defendant’s counsel did not

notify him that the motion was to be argued on July 14, 2014.

5 The plaintiff’s counsel claimed that he had not been notified that the

motion was being argued on February 2, 2015. On appeal, the defendant’s

counsel, in his appendix, submitted to this court an affidavit and a fax that
purported to show that the motion was marked as ready for argument and

that the plaintiff’s counsel had been notified via e-mail.

6 Our Supreme Court and this court previously have characterized § 52-

593 as a remedial statute. See Finkle v. Carroll, 315 Conn. 821, 831, 110

A.3d 387 (2015); DiPietro v. Farmington Sports Arena, LLC, 123 Conn.

App. 583, 594, 2 A.3d 963 (2010), rev’d on other grounds, 306 Conn. 107, 49

A.3d 951 (2012).

We also note that § 52-593 is known as the ‘‘ ‘wrong defendant’ ’’ statute.

Finkle v. Carroll, supra, 134 Conn. App. 282.