Pettini Contracting Corporation v. Carol R. Johnson Associates, Inc.

Pettini Contracting Corporation v. Carol R. Johnson Associates, Inc. et al

No. KNLCV146022452S

Superior Court of Connecticut, Judicial District of New London, New London

February 7, 2017

UNPUBLISHED OPINION

RULING ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

Robert F. Vacchelli, Judge.

This case is an action by the plaintiff, Pettini Contracting Corporation (" Pettini"), alleging negligence against three defendants: Carol R. Johnson Associates, Inc. (" CJA"); Vanasse Hangen Brustlin, Inc. (" VHB") and van Zelm, Heywood & Shadford, Inc. (" van Zelm"). The gravamen of the complaint is that Pettini bid on, and became the contractor for, a construction project for the Town of Groton, CT, known as the Downtown Mystic Streetscapes Project in 2010 in reliance on design and engineering services provided by the defendants. Pettini alleges that the defendants were negligent in the provision of those services resulting in delays and extra work on the project and contractual disputes with the Town which caused Pettini to sustain financial losses. Pending before the court is a motion for summary judgment by CJA and VHB arguing that Pettini's claims are the same as those that were resolved earlier in arbitration with the Town. They argue that this litigation against the defendants, therefore, is barred under the doctrines of res judicata and collateral estoppel. Doc No. 160.00. van Zelm has also filed a motion for summary judgment on the same grounds. Doc. No. 167.00. Pettini objects to both motions. For the following reasons, the court finds that the material facts are not in dispute and that the defendants are entitled to summary judgment on all of the claims under the doctrines of res judicata and/or collateral estoppel. Judgment shall enter in favor of all defendants and against the plaintiff, accordingly.

I

The law governing summary judgment is well-settled. As our Appellate Court has summarized:

Practice Book § [17-49] requires that 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 that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings. (Citation omitted; internal quotation marks omitted.) Gohel v Allstate Ins. Co., 61 Conn.App. 806, 809, 768 A.2d 950 (2001).

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 As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).

It is frequently stated in Connecticut's case law that pursuant to Practice Book § § 17-45 and 17-46, a party opposing a summary judgment motion " must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Harvey v. Boehringer Ingelheim Corp., 52 Conn.App. 1, 4, 724 A.2d 1143 (1999). As noted by the trial court in this case, typically " [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred." (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). Moreover, " [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Citations omitted; internal quotation marks omitted.) Id., 244-45.

Rockwell v. Quintner, 96 Conn.App. 221, 227-29, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

The Practice Book further mandates that " [a]ny adverse party shall at least five days before the date the motion is to be considered on short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already part of the file, shall be filed and served as are pleadings." Practice Book § 17-45. " Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Practice Book § 17-46.

II

In support of their motion, CJA and VHB supplied the court with copies of the complaint in the instant case; Pettini's demand for arbitration against the Town of Groton; Pettini's contract with the Town; the Decision and Interim Award of the Arbitrator; the Arbitrator's Corrected Final Award; a transcript of the deposition of Norman Pettini, Jr., president of the plaintiff corporation; the agreement between the Town of Groton and CJA for the design of the Mystic Streetscape project; the subagreement between CJA and VHB, and correspondence. In support their respective positions, van Zelm and Pettini reference some of the same materials supplied by CJA and VJB, and they additionally supplied the court with a list of 33 items of work extras and work changes for which Pettini claimed payment was owed. Those claims were made in Section 3.7 of Pettini's demand for arbitration and were marked in this case as Plaintiff's Exhibit 1.

Based on the above materials and undisputed representations of the parties, the court finds that the following material facts are not in dispute: On or about August 8, 2002, CJA contracted with the Town of Groton to provide professional design services for a project known as the Downtown Mystic Streetscapes Project. CJA promptly contracted with VHB to provide certain design and engineering services as a subcontractor on the project. On or about October 24, 2003, CJA also contracted with the Town to perform professional design services for various utility relocations associated with the project. CJA retained the services of van Zelm for certain design and engineering work for that aspect of the project.

The project construction contract was open to public bidding and, on April 29, 2010, Pettini submitted its bid. On or about July 29, 2010, the Town awarded Pettini the contract for construction of the project. A written agreement was executed by the parties soon thereafter.

As construction progressed, there were several delays resulting in extra work and work changes. Disputes arose. The contract between Pettini and the Town was ultimately terminated by the Town. Litigation ensued.

Most pertinent to the issues in the instant case, on March 31, 2014, Pettini submitted a demand for arbitration in connection with its ongoing contractual dispute with the Town. The demand listed a variety of claims totaling $2, 458, 500.99. The Town denied the claims, but the issues were submitted to arbitration. On December 8, 2015, after twenty-one days of hearings, the arbitrator rendered her decision on all of the claims. Pettini was awarded only $491, 066.37, plus prejudgment interest, plus an apportionment as to the arbitrator's administrative fees and expenses.

In the meantime, to preserve its rights, Pettini commenced the above captioned case against the defendants, CJA, VHB and van Zelm on October 15, 2014. The gravamen of the complaint is that that Pettini bid on, and became the contractor for, the subject construction project in reliance on design and engineering services provided by the defendants. Pettini alleges that the defendants were negligent in the provision of those services resulting in delays and extra work on the project and contractual disputes with the Town which caused Pettini to sustain financial losses.

Pettini concedes that that claims raised in the instant case are substantially similar to the claims raised in the arbitration proceedings. This case contains no new claims.

Additional facts needed for the court's decision will be set forth below as necessary.

III

Based on Pettini's concession that the claims in this case are essentially the same as those raised in the arbitration proceeding, the defendants argue that judgment should be rendered in their favor as a matter of law because Pettini's claims are barred by the doctrines of res judicata and collateral estoppel. Pettini agrees that it is not entitled to be awarded damages twice for the same injury. But, it argues that all or some of its claims are still viable because (a) some of its claims were not decided on the merits by the arbitrator or were decided for reasons other than the defendants' negligence; (b) the defendants cannot invoke the doctrines of res judicata or collateral estoppel against it because the defendants were not parties to the arbitration or in privity with the Town; and (c) there are public policy reasons why its...