DEUTSCHE BANK AG v. SEBASTIAN HOLDINGS,

INC., ET AL.

(AC 38515)

(AC 38516)

Alvord, Bentivegna and Pellegrino, Js.

Syllabus

The plaintiff bank sought to pierce the corporate veil of the defendant

corporation, S Co., and to enforce an English court’s judgment against

the individual defendant, V, the sole shareholder and director of S Co.

The plaintiff had commenced an action in England against S Co., seeking

damages for moneys owed to it in connection with various trading losses

incurred by S Co. in relation to accounts that it had opened and operated

through the plaintiff. In response, S Co. filed a counterclaim, alleging,

inter alia, that the plaintiff had breached certain contractual duties that

it had owed to S Co., which resulted in the depletion of funds that S

Co. could have used to mitigate its losses. The English court denied S

Co.’s counterclaim, finding that the plaintiff had not breached its duties

to S Co. and that V had control over S Co. such that any alleged breach

of duty should not have interfered with V’s ability to transfer funds to

or from S Co. The English court rendered judgment for the plaintiff,

awarding it damages plus interest. Thereafter, the plaintiff filed a nonparty costs application with the English court, seeking to hold V personally liable for certain of the plaintiff’s court costs in its action against

S Co. The English court granted the costs application, concluding that

V was liable for the costs incurred by the plaintiff due to his extensive

involvement in the action against S Co. In response to S Co.’s failure

to make payments in accordance with the judgment, the plaintiff commenced the present action. Thereafter, the defendants filed a motion

for summary judgment, claiming that the doctrine of res judicata barred

the plaintiff’s corporate veil piercing claim because it should have been

raised in the action in the English court. The plaintiff filed a separate

motion for summary judgment, arguing that all questions of material

fact with respect to its corporate veil piercing claim previously had been

decided by the English court and that V was collaterally estopped from

denying that he was the alter ego of S Co. and personally liable for the

judgment in the English action. The trial court denied the parties’

motions, concluding that the plaintiff’s corporate veil piercing claim was

not barred by res judicata because that claim was sufficiently different in

nature from the breach of contract claims in the English action, and

that V was not collaterally estopped from denying liability for S Co.’s

debt because the issue was not actually or necessarily decided in the

English action. From the trial court’s judgment, the parties filed separate

appeals with this court. Held:

1. The defendants could not prevail on their claim that the trial court improperly denied their motion for summary judgment because the plaintiff’s

corporate veil piercing claim arose out of the same series of transactions

as the English action and should have been raised in the English action,

and, therefore, was barred by the doctrine of res judicata: the plaintiff’s

corporate veil piercing claim was not barred by the doctrine of res

judicata, the claims litigated in the English action and the claims alleged

in the present action having been distinct, as the plaintiff in the present

action was not seeking to relitigate a claim of contractual liability that

previously had been decided in the English action but, rather, was

seeking to enforce the unsatisfied English judgment against V under a

corporate veil piercing theory.

2. There was no merit to the plaintiff’s claim that the trial court improperly

denied its motion for summary judgment on the ground that the issue

of whether V was the alter ego of S Co. previously had been decided

by the English court and, thus, the doctrine of collateral estoppel precluded the defendants from relitigating that issue: the facts relevant to

the issues in the English action and those in the present action were

not identical for purposes of issue preclusion, and the issues pertaining

to V’s control of S Co., as found by the English court, were not essential
to the English action because the English court’s finding that the plaintiff

did not breach any duties it owed to S Co. was essential only to the

English court’s resolution of S Co.’s counterclaim; moreover, although

the English court made factual findings relating to V’s dominion and

control of S Co. when it awarded costs against V, the sole purpose of

the costs judgment was to determine whether V, as a nonparty, could

be held liable for costs and attorney’s fees incurred during the litigation

of the English action, and the costs proceeding was a summary process

proceeding that did not afford the parties basic procedural safeguards,

including the presentation and cross-examination of witnesses, and the

English court explicitly noted that the issues in determining a nonparty

costs order were not the same as a corporate veil piercing claim.

Argued February 2—officially released July 18, 2017

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Complex Litigation Docket,

Genuario, J.)

Procedural History

Action to pierce the corporate veil of the named

defendant and to hold the defendant Alexander Vik

liable for an unsatisfied foreign judgment, and for other

relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, Complex Litigation Docket,

where the court, Genuario, J., denied the defendants’

motion to dismiss; thereafter, the court denied the

defendants’ motion to strike; subsequently, the court

denied the plaintiff’s motion for summary judgment and

denied the defendants’ motion for summary judgment,

and the plaintiff and the defendants filed separate

appeals in this court; thereafter, this court granted in

part the defendants’ motion to dismiss the plaintiff’s

appeal. Affirmed.

Richard M. Zaroff, with whom were Thomas P.

O’Connor, Wyatt R. Jansen, and, on the brief, Charles

W. Pieterse and Ira S. Zaroff, for the appellants in AC

38515 and appellees in AC 38516 (defendants).

David G. Januszewski, with whom were Thomas D.

Goldberg, and, on the brief, Bryan J. Orticelli, Sheila

C. Ramesh, and Erin R. McAlister, for the appellee in

AC 38515 and appellant in AC 38516 (plaintiff).
Opinion

PELLEGRINO, J. These appeals arise from an action

to recover an approximately $243 million judgment

(English judgment) rendered by the Queen’s Bench

Division of the High Court of Justice of England and

Wales (English court) in an action captioned Deutsche

Bank AG v. Sebastian Holdings, Inc. (English action)

in which the trial court rendered judgment in favor of

the plaintiff, Deutsche Bank AG, against the corporate

defendant, Sebastian Holdings, Inc. (Sebastian). In the

present action, the plaintiff sought to pierce Sebastian’s

corporate veil and to enforce the English judgment

against the individual defendant, Alexander Vik. The

defendants and the plaintiff moved for summary judgment based on the doctrines of res judicata and collateral estoppel, respectively. On appeal, the parties claim

that the trial court improperly denied their respective

motions for summary judgment.1 We affirm the judgment of the trial court.

The trial court found the following facts. On January

1, 2009, the plaintiff commenced the English action

against Sebastian, a corporation organized under the

laws of the Turks and Caicos Islands, seeking damages

for moneys that it was allegedly owed in connection

with various trading losses incurred by Sebastian

through accounts that it had opened and operated

through the plaintiff. Sebastian incurred various debts

owed to the plaintiff through unpaid margin calls and

closeouts of its accounts with the plaintiff. Following

a forty-five day trial, the English court rendered judgment in favor of the plaintiff in the amount of

$243,023,089 plus interest.

Subsequent to the English judgment, the plaintiff filed

a nonparty costs application with the English court,

seeking to hold Vik, the sole shareholder and director of

Sebastian, personally liable for portions of the plaintiff’s

court costs. On June 24, 2014, the English court issued

its decision (English costs judgment) in which it concluded that Vik was personally liable for the costs

incurred by the plaintiff due to his extensive involvement with the English action.2

It therefore granted the

costs application.

On December 13, 2013, the plaintiff commenced the

present action to enforce the English judgment against

Vik following Sebastian’s failure to make payments on

the English judgment. Specifically, the plaintiff sought

(1) a declaratory judgment seeking to pierce Sebastian’s

corporate veil and to hold Vik personally liable for the

amounts due under the English judgment, and (2) to

enforce the English judgment against Vik under the

Uniform Foreign Money Judgments Recognition Act,

as adopted in Connecticut.3

Following a period of discovery, on August 21, 2015,

the defendants and the plaintiff both moved for sum-
mary judgment. In their motion, the defendants argued

that res judicata barred the present action because the

plaintiff’s claim seeking to pierce the corporate veil

should have been raised in the English action. The plaintiff, by contrast, argued in its motion that all questions

of material fact with respect to its veil piercing claim

previously had been decided by the English court and

that Vik was collaterally estopped from denying that

he is the ‘‘alter ego’’ of Sebastian and personally liable

for the English judgment. On October 22, 2015, by way

of written memorandum of decision, the trial court

denied both parties’ motions for summary judgment.

With respect to the defendants’ motion for summary

judgment, the court concluded that the plaintiff’s veil

piercing claim was not barred by the doctrine of res

judicata because that claim was sufficiently different

in nature from the breach of contract claims in the

English action. With respect to the plaintiff’s motion

for summary judgment, the court concluded that Vik

was not collaterally estopped from denying liability for

Sebastian’s debt because the issue was not actually or

necessarily decided in the English action. From the

court’s judgment, the parties now appeal.4

We begin by setting forth our standard of review.

‘‘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. . . . The party moving for

summary judgment has the burden of showing the

absence of any genuine issue of material fact and that

the party is, therefore, entitled to judgment as a matter

of law. . . . On appeal, we must determine whether

the legal conclusions reached by the trial court are

legally and logically correct and whether they find support in the facts set out in the memorandum of decision

of the trial court.’’ (Internal quotation marks omitted.)

Savvidis v. Norwalk, 129 Conn. App. 406, 409–410, 21

A.3d 842, cert. denied, 302 Conn. 913, 27 A.3d 372 (2011).

Thus, our review of the trial court’s judgment denying

the parties’ motions for summary judgment is plenary.

See id., 410.

I

AC 38515

We turn first to the defendants’ appeal in which they

claim that the trial court improperly denied their motion

for summary judgment because the plaintiff’s veil piercing claim was barred by the doctrine of res judicata.

Specifically, the defendants argue that the plaintiff’s

veil piercing claim arises out of the same series of

transactions as the English action and should have been
raised in the English action. We disagree.

In denying the defendants’ motion for summary judgment, the trial court stated: ‘‘The fact that certain evidence will need to be presented in the case at bar

which was previously presented in the English action

is insufficient to invoke the doctrine of res judicata. A

piercing the corporate veil claim is different in nature

and involves a different type of claim than the original

contract claim asserted in the English action. The court

also observes that Vik was not a party in the English

action until the [nonparty costs] proceedings5

. . . .

The court also observes that the facts and evidence

which the defendants claim should bar the plaintiff’s

subsequent action were matters that were probative

of the defendants’ counterclaim and not the plaintiff’s

original contractual assertions. The plaintiff brought

the English action against [Sebastian] only asserting

a contractual claim against [Sebastian]. [Sebastian’s]

assertion of claims that broadened the evidence (claims

that the English court did not find meritorious) should

not serve to bar the plaintiff’s subsequent action to

enforce its judgment against one who allegedly depleted

the assets of [Sebastian] rendering it unable to pay its

debts. Accordingly the court holds that the plaintiff’s

claim is not barred by the doctrine of res judicata.’’

(Footnote added.)

In so doing, the court concluded that ‘‘the action

brought by the plaintiff herein is different in nature

than the English action. Thus, although the facts at

issue in the [English] action overlap with the facts at

issue in this case, the differences are more significant

than mere shadings of fact. Instead the cases lack a

common nucleus of operative facts.’’ (Internal quotation marks omitted.)

The following legal principles guide our discussion.

‘‘In deciding whether the doctrine of res judicata is

determinative, we begin with the question of whether

the second action stems from the same transaction as

the first. [Our Supreme Court has] adopted a transactional test as a guide to determining whether an action

involves the same claim as an earlier action so as to

trigger operation of the doctrine of res judicata. [T]he

claim [that is] extinguished [by the judgment in the first

action] includes all rights of the plaintiff to remedies

against the defendant with respect to all or any part of

the transaction, or series of connected transactions,

out of which the action arose. What factual grouping

constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving

weight to such considerations as whether the facts are

related in time, space, origin, or motivation, whether

they form a convenient trial unit, and whether their

treatment as a unit conforms to the parties’ expectations or business understanding or usage. . . . Orselet

v. DeMatteo, [206 Conn. 542, 545–46, 539 A.2d 95 (1988)];
see Duhaime v. American Reserve Life Ins. Co., 200

Conn. 360, 364–65, 511 A.2d 333 (1986); see also Nevada

v. United States, 463 U.S. 110, 130–31 n.12, 103 S. Ct.

2906, 77 L. Ed. 2d 509 (1983); 1 Restatement (Second),

[Judgments, § 24 (1982)]. In applying the transactional

test, we compare the complaint in the second action

with the pleadings and the judgment in the earlier

action.’’ (Internal quotation marks omitted.) Powell v.

Infinity Ins. Co., 282 Conn. 594, 604, 922 A.2d 1073

(2007).

With regard to that test, it appears that neither party

disputes that the first two requirements are satisfied:

(1) the English action resulted in a valid, final judgment

rendered on the merits; and (2) the English action and

the present action were between the same parties. See

Coyle Crate LLC v. Nevins, 137 Conn. App. 540, 548,

558 (2012). Thus, we need only address the third requirement, that is, whether the plaintiff’s veil piercing claims

arose from the same transaction and should have been

raised in the English action.

The substance of the plaintiff’s claim in the present

action is that Vik is Sebastian’s ‘‘alter ego,’’ and, as a

result, he is personally liable for the unsatisfied English

judgment. In the English action, the plaintiff alleged

various claims against Sebastian arising from their contractual relationship. Although this precise issue has

been scarcely discussed by the courts of this state, we

agree with the trial court that Wells Fargo Bank, N.A.

v. Konover, United States District Court, Docket No.

3:05CV1924 (CFD) (D. Conn. March 20, 2008) (2008 U.S.

Dist. Lexis 21506), provides guidance.

In Wells Fargo Bank, N.A., the plaintiff bank obtained

a judgment rendered by a Maryland court against several corporate defendants, including Konover Management Company, for a breach of a mortgage agreement.

Id., *2. Following the defendants’ failure to satisfy the

judgment, the plaintiff brought an action before the

federal court to enforce the Maryland judgment against

an individual, Michael Konover, and his various other

entities, under a corporate veil piercing theory. Id.

In the action to enforce the Maryland judgment, the

plaintiff alleged that the individual Connecticut defendant used his control over the entities named in the

Maryland judgment to drain funds from those entities.

Id. The court analyzed the complaint in the judgment

enforcement action and stated: ‘‘Counts 1 and 2 are

clearly addressed at recovering for a loss distinct from

those at issue in Maryland. The claims here are based on

the Judgment Debtor’s inability to satisfy the Maryland

judgment, rather than the mortgage default underlying

that judgment.’’ Id., *4. The court concluded that

although ‘‘the facts at issue in the Maryland action overlap with the facts at issue in this case, the differences

are more significant than mere shadings of facts.

Instead, the cases lack a common nucleus of operative
facts.’’ (Internal quotation marks omitted.) Id.

The circumstances in the present case are nearly

identical to those in Wells Fargo Bank, N.A. In essence,

the respective plaintiffs in both cases had secured a

prior judgment in their favor and sought to enforce that

judgment through a corporate veil piercing claim in a

subsequent action. The actual claim advanced in the

present case is that the plaintiff suffered a loss based

upon nonpayment of the judgment rendered by the

English court. In our view, the present action is not

seeking to relitigate the various claims that gave rise

to Sebastian’s liability in the English action, but seeking

to enforce that judgment. This becomes even more evident when examining the governing law pertaining to

the plaintiff’s veil piercing claims.

Prior to the parties’ respective motions for summary

judgment, the defendants moved to strike the complaint

‘‘arguing that the substantive law of [the] Turks and

Caicos [Islands] must apply to the claims made that the

corporate veil between Vik and [Sebastian] should be

pierced since [Sebastian] is a corporation organized

and existing under the laws of [the] Turks and Caicos

[Islands]. The defendants further argue[d] that under

that applicable Turks and Caicos [Islands’] law the allegations of the complaint are insufficient to state a cause

of action pursuant to which the corporate veil between

Vik and [Sebastian] may be pierced.’’ The court concluded that the applicable law to be applied to the

plaintiff’s veil piercing claim was the law of the Turks

and Caicos Islands and that the plaintiff sufficiently

pleaded a cause of action.

In its memorandum of decision denying the defendants’ motion to strike, the court stated: ‘‘In determining

the elements and parameters of [the Turks and Caicos

Islands] law with regard to piercing the corporate veil

the affidavit relies on decisions of English courts. The

court has reviewed the affidavit submitted by the defendants as well as an affidavit submitted by the plaintiff,

signed by an individual who is a solicitor admitted to

practice in England and Wales. Both affidavits purport

to set forth the law as developed in England and therefore applicable to [the Turks and Caicos Islands] with

regard to attempts to pierce a corporate veil. Having

reviewed those affidavits, as well as other authorities,

the court concludes that the plaintiff has adequately

alleged a cause of action under [the Turks and Caicos

Islands’] law. The affidavits submitted by the defendants indicate that a corporate veil can be pierced only

if there is some ‘impropriety and that such impropriety

must be linked to the use of the companies’ structure

to avoid or conceal liability.’ The affidavits suggest that

in order to pierce a veil it is necessary that the plaintiff

show both control of the company by wrongdoers and

an impropriety that constitutes a misuse of the company

by them as a device or facade to conceal their wrongdo-
ing. The defendants’ affidavit additionally states that a

company can be a facade even though it was not originally incorporated with any deceptive intent. Rather,

the question is whether it is being used as a facade at

the time of a relevant transaction. If so, the court may

pierce the veil only so far as it is necessary to provide a

remedy forthe particular wrong which those controlling

the company have done.’’

The trial court’s discussion is helpful in resolving the

present appeal because it delineates the elements that

the plaintiff must prove in its claim in the present case

and the stark differences from the claims in the English

action. It is clear to this court that the claims litigated

in the English action and those claims alleged in the

present case are distinct. For example, in prevailing on

its claims in the English action, the plaintiff was not

required to prove that Vik demonstrated control over

Sebastian and impermissibly drained its assets. Simply

put, the plaintiff in present action is not seeking to

relitigate a claim of contractual liability that previously

was decided in the English judgment. Instead, the plaintiff’s claims here are seeking to enforce the unsatisfied

English judgment against Vik under a corporate veil

piercing theory.

In sum, the claims alleged in the English action and

those alleged in the present action arise from a distinct

nucleus of operative facts. It is also worth noting that

Sebastian’s refusal to satisfy the judgment left the plaintiff in the precarious position of pursuing alternative

methods of enforcing the judgment, that being an

enforcement action seeking to pierce Sebastian’s corporate veil. Requiring the plaintiff to have pursued such

a claim in the English action would produce an unjust

result, as the plaintiff would have been required to have

anticipated that Sebastian would refuse to satisfy the

English judgment. See Gladysz v. Planning & Zoning

Commission, 256 Conn. 249, 261, 773 A.2d 300 (2001)

(courts must ensure ‘‘that the effect of the doctrine

does not work an injustice’’). We thus conclude that

the plaintiff’s veil piercing claim is not barred by the

doctrine of res judicata. Accordingly, the trial court

properly denied the defendants’ motion for summary

judgment.

II

AC 38516

We next consider the plaintiff’s appeal in which it

claims that the trial court improperly denied its motion

for summary judgment. The plaintiff argues that the

court’s denial of its motion was improper because the

issue of whether Vik is the ‘‘alter ego’’ of Sebastian

previously was decided by theEnglish court and thatthe

doctrine of collateral estoppel precluded the defendants

from litigating that issue. We disagree.

In its memorandum of decision denying the plaintiff’s
motion for summary judgment, the court stated: ‘‘While

it is clearthat [the English court] in issuing [its] decision

rendering the English judgment did conclude that Vik

was in control of the funds and caused them to be

transferred out of [Sebastian] to make them harder to

reach, [it] did so as a component of [its] decision denying [Sebastian’s] counterclaim against the plaintiff. In

the English action, [Sebastian] counterclaimed against

the plaintiff claiming that the plaintiff had breached

duties and contractual obligations to [Sebastian] which

resulted in funds not being available to [Sebastian] from

which it could have minimized its losses. [the English

court] concluded that the plaintiff had not breached

its contract or any other duties to [Sebastian], and,

therefore, the plaintiff was not liable to [Sebastian] for

those breach of contractual or other duties. [The

English court] additionally found that because Vik was

in control of the funds that had been transferred out

of [Sebastian], Vik could have transferred those funds

back to [Sebastian] at anytime thereby undercutting

[Sebastian’s] claim that the failure of [Sebastian] to have

access to funds caused it significant damages. But this

was unnecessary to the court’s conclusion since the

court had already determined that the plaintiff had not

breached any duties to [Sebastian]. Moreover the issue

decided by [the English court] was not whether or not

Vik was the alter ego of[Sebastian] and liable for[Sebastian’s] debts but only that he was still able to control

the transfer of funds that had been transferred out of

[Sebastian] and, therefore, could have avoided damage.

To be sure in [its] lengthy and thorough decision, [the

English court] took a dim view of Vik’s conduct and

integrity but that is insufficient to establish the collateral estoppel necessary to grant summary judgment for

the plaintiff.’’

Our resolution of the plaintiff’s appeal is governed

by the following legal principles. ‘‘Collateral estoppel

means simply that when an issue of ultimate fact has

once been determined by a valid and final judgment,

that issue cannot again be litigated between the same

parties in any future lawsuit. . . . To assert successfully the doctrine of issue preclusion, therefore, a party

must establish that the issue sought to be foreclosed

actually was litigated and determined in the prior action

between the parties or their privies, and that the determination was essential to the decision in the prior case.

. . . 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. . . . Therefore, a party may assert the doctrine of collateral estoppel successfully when three

requirements are met: [1] [t]he issue must have been

fully and fairly litigated in the first action, [2] it must

have been actually decided, and [3] the decision must
have been necessary to the judgment. . . .

‘‘Before collateral estoppel applies there must be an

identity of issues between the prior and subsequent

proceedings. To invoke collateral estoppel the issues

sought to be litigated in the new proceeding must be

identical to those considered in the prior proceeding.

[T]he court must determine what facts were necessarily

determined in the first trial, and must then assess

whether the [party] is attempting to relitigate those

facts in the second proceeding. Simply put, collateral

estoppel has no application in the absence of an identical issue. Further, [t]he [party seeking estoppel] has

the burden of showing that the issue whose relitigation

he seeks to foreclose was actually decided in the first

proceeding.’’ (Citations omitted; emphasis in original;

footnote omitted; internal quotation marks omitted.)

Wiacek Farms, LLC v. Shelton, supra, 132 Conn. App.

168–70, 30 A.3d 27 (2011).

We begin with a review of the issues presented to

each court. In the English action, the plaintiff claimed

that Sebastian suffered trading losses through the use

of accounts opened and operated through the plaintiff.

Those losses led to Sebastian incurring debts owed

to the plaintiff as a result of unpaid margin calls and

closeouts of Sebastian’s accounts with the plaintiff. In

the present case, the plaintiff claimed that Vik was

personally liable for Sebastian’s debts because he was

Sebastian’s ‘‘alter ego’’ due to, inter alia, his domination

and control of Sebastian.

It is apparent to this court that the facts relevant to

the issues in the English judgment and those in the

present case are not ‘‘identical’’ for purposes of issue

preclusion. See Corcoran v. Dept. of Social Services,

271 Conn. 679, 689–90, 859 A.2d 533 (2004). Our resolution of the plaintiff’s appeal, however, is complicated

by the English court’s disposition of Sebastian’s counterclaims and the postjudgment award of costs rendered against Vik.

First, Sebastian made several counterclaims in the

English action. Sebastian counterclaimed that the plaintiff breached its contractual duties and other duties

that it owed to Sebastian that, in turn, resulted in the

depletion of Sebastian’s funds that it could have used to

mitigate its losses. In denying Sebastian’s counterclaim,

the English court found both that(1)the plaintiff did not

breach its duties to Sebastian, contractual or otherwise,

and (2) Vik had control over Sebastian such that any

alleged breach of duty on behalf of the plaintiff should

not have interfered with Vik’s ability to transfer funds

to or from Sebastian.

In its memorandum of decision, the trial court noted

that the English court’s findings relating to Vik’s control

of Sebastian and that Vik could have transferred funds

back to Sebastian were ‘‘unnecessary to the court’s
conclusion since the court had already determined that

the plaintiff had not breached any duties to [Sebastian].’’

We agree with this assessment. Because only those

issues that were necessarily determined by the English

court could invoke the doctrine of collateral estoppel,

the English court’s finding that the plaintiff did not

breach any duties it owed to Sebastian was the only

essential issue determined by the English court pertaining to the counterclaim. See Gladysz v. Planning &

Zoning Commission, supra, 256 Conn. 260. Thus, we

decline to afford any preclusive effect to the issues

pertaining to Vik’s control of Sebastian and related

issues because those issues found by the English court

were nonessential. See Farmington Valley Recreational Park, Inc. v. Farmington Show Grounds, LLC,

146 Conn. App. 580, 589, 79 A.3d 95 (2013).

Second, the English court also made factual findings

relating to Vik’s dominion and control of Sebastian

when it awarded postjudgment costs against Vik. In our

view, the factual findings underlying the English costs

judgment cannot serve as the grounds for invoking the

doctrine of collateral estoppel for two reasons: (1) the

sole purpose of the English costs judgment was to determine whether a nonparty, Vik, could be held liable for

costs and attorney’s fees incurred during the litigation

of the English action; and (2) the English costs proceeding did not afford the parties basic procedural safeguards, including presentation and cross-examination

of witnesses.

In its memorandum of decision as to the costs judgment, the English court noted that under the applicable

provision that gives rise to the costs proceeding, § 51,6

the critical factoris the nature and degree of the nonparty’s connection with the proceedings. See Deutsche

Bank AG v. Sebastian Holdings, Inc., [2004] EWHC

2073 (Q.B.). The English court further stated, ‘‘[a]s is

plain from a number of authorities, an application under

[§] 51 does not involve the assertion of a cause of action

but is a request for the exercise by the English court

of a statutory discretion in relation to the proceedings

in which the court already has jurisdiction and, as here,

has usually already given judgment against a party subject to that jurisdiction.’’ Id.

It is apparent to this court that § 51 proceedings do

not afford the parties the same procedural safeguards

as the parties were afforded when they litigated the

underlying merits in the English action or that the parties are afforded in the present case. Specifically, ‘‘[t]he

procedure for the determination of costs is a summary

procedure, not necessarily subject to all the rules that

would apply in an action.’’ Id. The English court

observed that ‘‘[§] 51 proceedings are intended to be a

‘speedy process’ where disclosure and cross-examination are not ordinarily part of the procedure.’’ Id.

Although the court could have exercised its discretion
to allow disclosure and cross-examination, the English

court instead relied solely on its findings from the

English judgment.

In light of the lack of procedural safeguards afforded

to a § 51 proceeding, we decline to apply preclusive

effect to the issues in the present case. Our courts have

declined to apply the doctrine of collateral estoppel to

findings made in proceedings where ‘‘the panoply of

procedural and discovery devices available in civil proceedings [were] not equally available . . . .’’ Connecticut Natural Gas Corp. v. Miller, 239 Conn. 313, 321–22,

684 A.2d 1173 (1996); see also Gateway v. Kelso & Co.,

126 Conn. App. 578, 587, 15 A.3d 635 (2011) (declining

to invoke collateral estoppel where court permitted

only plaintiff’s witness to testify, defendant was not

allowed to call any witnesses, and defendant was not

permitted to complete cross-examination of plaintiff’s

witness). As best we can tell from the record before us,

the English costs judgment was the result of a summary

proceeding that did not afford the parties the ability to

present new evidence, to call witnesses, or to crossexamine witnesses. Moreover, the English court explicitly noted that the issues in determining a nonparty

costs order were not the same as a corporate veil piercing claim.7 Thus, we decline to apply the doctrine of

collateral estoppel to the factual findings made by the

English court in the costs judgment.

Although we acknowledge that there is some overlap

in the facts relevant to the issues in the present case

and those in the English action, ‘‘[o]ur Supreme Court

has held . . . that an overlap in issues does not necessitate a finding of identity of issues for the purposes of

collateral estoppel.’’ Wiacek Farms, LLC v. Shelton,

supra, 132 Conn. App. 172. Our Supreme Court has

also ‘‘recognized that applying the doctrine of collateral

estoppel has harsh consequences, namely, cutting off

a party’s right to future litigation on a given issue, [and

our Supreme Court has] been reluctant to uphold the

invocation of the doctrine unless the issues are completely identical.’’ Corcoran v. Dept. of Social Services,

supra, 271 Conn. 695. On the facts of the present case,

we decline to foreclose the issue that Vik is Sebastian’s

alter ego because that issue is not identical to those

issues that were before the English court. Moreover, we

decline to give preclusive effect to the English court’s

postjudgment costs award based on the lack of procedural safeguards. Thus, the court properly concluded

that genuine issues of material fact exist as to the issues.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendants filed the present appeal on October 26, 2015, and on

October 28, 2015, the plaintiff filed its appeal.

2 Under § 51 of the United Kingdom’s Senior Courts Act, a nonparty to

an action may be summarily held liable for a judgment of attorney’s fees

and costs made against a party. See Senior Courts Act 1981, c. 54, § 51. The

English court explained in the English costs judgment that, in assessing
costs under § 51, the ‘‘critical factor’’ is ‘‘the nature and degree of the

nonparty’s connection with the proceedings.’’ Deutsche Bank AG v. Sebastian Holdings, Inc., [2004] EWHC 2073 (Q.B.) The English court emphasized

that ‘‘[a]n application under [§] 51 does not involve the assertion of a cause

of action but is a request for the exercise by the English court of a statutory

discretion in relation to proceedings in which the court already has jurisdiction and, as here, has usually already given judgment against a party subject

to that jurisdiction.’’ Id.

3 See General Statutes § 52-604 et seq.

4 As a threshold matter, we note that ‘‘[o]rdinarily, the denial of a motion

for summary judgment is not an appealable final judgment. . . . When the

decision on a motion for summary judgment, however, is based on the

doctrine of collateral estoppel, the denial of that motion does constitute a

final judgment for purposes of appeal. . . . That precept applies to the

doctrine of res judicata with equal force.’’ (Citations omitted; internal quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light &

Power Co., 300 Conn. 325, 328 n.3, 15 A.3d 601 (2011).

5 The English court’s decision in granting the nonparty costs application

reflects that it found jurisdiction over Vik solely for the purpose of awarding

a judgment for costs incurred in the English action. The English court’s

jurisdiction over Vik was derived from chapter 54, § 51 of the Senior Courts

Act 1981, which confers upon the English court ‘‘full power to determine

by whom and to what extent the costs are to be paid.’’ In granting the costs

application, the English court explained that Vik was responsible for legal

costs as a nonparty based on, inter alia, his status as the sole shareholder

and sole director of Sebastian and because Vik controlled the conduct of

the litigation on Sebastian’s behalf.

6 See footnote 2 of this opinion.

7 Specifically, the English court stated, ‘‘if a non-party costs order is made

against a company director or shareholder, it is wrong to characterize this

as piercing or lifting the corporate veil or to say that the company and the

director or shareholder are one in the same. The separate personality of a

corporation, even a single member corporation, is deeply imbedded in our

law for the purpose of dealing with legal rights and obligations.’’ Deutsche

Bank AG v. Sebastian Holdings, Inc., [2004] EWHC 2073 (Q.B.).