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Girolametti v. Michael Horton Associates, Inc.

Supreme Court of Connecticut

June 25, 2019

JOHN GIROLAMETTI, JR., ET AL.
v.
MICHAEL HORTON ASSOCIATES, INC. JOHN GIROLAMETTI, JR., ET AL.
v.
VP BUILDINGS, INC., ET AL.

          Argued December 14, 2018

         Procedural History

         Action, in the first case, to recover damages from the defendant Michael Horton Associates, Inc., for alleged negligence, brought to the Superior Court in the judicial district of Danbury, where the defendant Michael Hor-ton Associates, Inc., filed apportionment complaints against the defendant Rizzo Corporation et al., and action, in the second case, to recover damages for, inter alia, the defendants' alleged negligence, brought to the Superior Court in the judicial district of Danbury, where the cases were transferred to the judicial district of Waterbury, Complex Litigation Docket; thereafter, the plaintiffs in the first case filed an amended complaint asserting claims against the defendant Rizzo Corporation et al.; subsequently, in the first case, the court, Agati, J., granted the motion for summary judgment filed by the defendant Rizzo Corporation and denied the motions for summary judgment filed by the defendant Michael Horton Associates, Inc., et al.; thereafter, in the second case, the court, Agati, J., denied the motion for summary judgment filed by the defendant Blue-Scope Buildings North America, Inc., et al.; subsequently, the plaintiffs and the defendant Michael Horton Associates, Inc., et al. in the first case, and the defendant BlueScope Buildings North America, Inc., et al. in the second case, filed separate appeals with the Appellate Court, Sheldon, Mullins and Bishop, Js., which affirmed the decision of the trial court granting the motion for summary judgment filed by the defendant Rizzo Corporation in the first case, reversed the decisions of the trial court denying the motions for summary judgment filed by the defendant Michael Horton Associates, Inc., et al. in the first case, reversed the decision of the trial court denying the motion for summary judgment filed the defendant BlueScope Buildings North America, Inc., et al. in the second case, and remanded both cases with direction to grant those motions for summary judgment, from which the plaintiffs, in both cases, on the granting of certification, appealed. Affirmed.

          Brian J. Donnell, with whom was Michael G. Cald-well, for the appellants (plaintiffs in both cases).

          Anita C. Di Gioia, for the appellee in Docket No. SC 20032 (defendant Domenic Quaraglia Engineering, Inc.).

          Kevin M. Godbout, with whom, on the brief, was Alison H. Weinstein, for the appellee in Docket No. SC 20033 (defendant Michael Horton Associates, Inc.).

          Sean R. Caruthers, with whom, on the brief, was Mark A. Milano, for the appellee in Docket No.SC20034 (defendant Pat Munger Construction Company, Inc.).

          Curtis L. Brown, pro hac vice, with whom wereDam-ian K. Gunningsmith and, on the brief, David S. Hardy, for the appellee in Docket No. SC 20035 (defendant BlueScope Buildings North America, Inc., et al.).

          Deborah Etlinger, with whom, on the brief, was Erin E. Canalia, for the appellee in Docket No. SC 20036 (defendant Lindade Construction, Inc.).

          Louis R. Pepe and Douglas M. Poulin filed a brief for Associated General Contractors of Connecticut as amicus curiae in Docket No. SC 20036.

          Robinson, C. J., and Palmer, McDonald, D'Auria and Ecker, Js.

          OPINION

          D'AURIA, J.

         This certified appeal poses the question of whether and under what circumstances arbitration of a construction dispute between a property owner and a general contractor is res judicata as to the claims of subcontractors[1] that did not participate in the arbitration. We agree with the Appellate Court that, in the absence of clear evidence of contrary intent by the parties, subcontractors are presumptively in privity with the general contractor on a construction project for purposes of res judicata. Accordingly, we affirm the judgment of the Appellate Court.

         I

         The relevant factual and procedural history is set forth in full in the decision of the Appellate Court. See Girolametti v. Michael Horton Associates, Inc., 173 Conn.App. 630, 636-46, 164 A.3d 731 (2017). We briefly summarize that history as follows.

         These five consolidated appeals arise from disputes regarding the construction of an expansion to a Party Depot Store located in Danbury. The plaintiffs are the owners of the store, John Girolametti, Jr., and Cindy Girolametti. The defendant-appellees are five subcontractors on the project: Michael Horton Associates, Inc. (Horton), Domenic Quaraglia Engineering, Inc. (Quaraglia), Lindade Construction, Inc. (Lindade), BlueScope Buildings North America, Inc., and its employee, Steven Oakeson (BlueScope), and Pat Munger Construction Company, Inc. (Munger). Other original defendants, including the general contractor on the project, Rizzo Corporation (Rizzo), and other subcontractors, are not involved in the present appeals.[2]

         In 2009, following the completion of the project and Danbury's issuance of a certificate of occupancy, the plaintiffs and Rizzo, pursuant to the contract between them (prime contract), entered arbitration to resolve various disputes regarding the project. Rizzo contended that the plaintiffs owed it further sums beyond the contract price for extra work performed and costs incurred in connection with the project. For their part, the plaintiffs sought to hold Rizzo liable for costs arising from, among other things, Rizzo's alleged failure to complete the project in a timely and proper manner. They claimed, for example, that Rizzo was responsible for multiple construction defects, had failed to provide a pre-engineered structure that complied with the intent of the original design, and had eliminated some important construction elements, jeopardizing the building's load carrying capacity. None of the other defendants was formally a party to the arbitration.

         In December, 2010, on the thirty-third day of what would ultimately be a thirty-five day hearing, the plaintiffs decided to no longer participate in the arbitration hearings, despite the urging of the arbitrator that they proceed to present their damages claims. The arbitrator subsequently issued an award ordering the plaintiffs to pay $508, 597 to Rizzo for sums due. Rizzo's subsequent application to confirm the award was granted by the trial court.

         With respect to the plaintiffs' claims, the arbitrator found that the plaintiffs made a conscious and informed decision to no longer attend the hearing, and intentionally refused to present any evidence or expert witnesses to explain or justify any alleged damages. From this finding, the arbitrator concluded that either the plaintiffs did not incur any damages or were unable to prove their damages. The arbitrator also rejected the plaintiffs' claims that the second floor of the building remained unoccupied due to construction defects resulting in structural problems. The arbitrator instead concluded that the structure had passed inspection but that Danbury zoning regulations did not permit use of the second floor for any purpose.

         The present appeals arise from two lawsuits, one filed during the arbitration proceedings and one filed subsequently, in which the plaintiffs sought to recover from Rizzo and from its subcontractors. At the heart of many of the plaintiffs' claims in these underlying cases are allegations of negligence in connection with the design and construction of the steel joists used to support the second floor of the building. In the actions underlying these appeals, each of the defendants-who were involved in various capacities in the design and construction of the second floor supports-moved for summary judgment against the plaintiffs on the basis of, among other grounds, res judicata. That is, they contended that all of the claims raised in the underlying actions either had been or could have been raised and resolved during the arbitration.

         The trial court granted the motion filed by Rizzo but denied the motions for summary judgment filed by the other defendants. The court concluded that the plaintiffs' actions against the subcontractor defendants were not barred by res judicata because those defendants were not parties to the arbitration and were not in privity with Rizzo. Although it is unclear from the court's brief order, its conclusion that the defendants were not in privity with Rizzo appears to be founded on the premise that they could not have been compelled to participate in the arbitration process.

         The defendants brought an interlocutory appeal from the court's denial of their motions for summary judgment. See, e.g., Santorso v. Bristol Hospital, 308 Conn. 338, 346 n.7, 63 A.3d 940 (2013) (interlocutory appeal may be taken from denial of motion for summary judgment based on res judicata or collateral estoppel). The Appellate Court reversed the judgment of the trial court with respect to the res judicata issue as to all of the defendants. That court held that all of the defendants were in privity with Rizzo for purposes of res judicata and, therefore, that the plaintiffs' claims were barred because they could have been raised during the ...


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