Festa v. Watertown Police Dept.

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Festa v. Watertown Police Dept.

MICHAEL FESTA v. WATERTOWN POLICE
DEPARTMENT ET AL.
(AC 48572)
Alvord, Suarez and Seeley, Js.

Syllabus

The plaintiffs appealed from the trial court’s judgment dismissing their
action alleging negligence by the defendant town and its chief of police. They
claimed that the court improperly granted the defendants’ motion to dismiss
on the grounds of res judicata and collateral estoppel. Held:

The trial court improperly granted the defendant’s motion to dismiss on the
grounds of res judicata and collateral estoppel, as neither doctrine implicates
the court’s subject matter jurisdiction and, thus, the defendants’ motion to
dismiss was not the proper procedural vehicle to adjudicate the applicability
of those doctrines.

Argued February 18—officially released June 9, 2026

Procedural History

Action to recover damages for negligence, and for
other relief, brought to the Superior Court in the judicial
district of Waterbury, where MyHoopty.com, LLC, was
cited in as a party plaintiff; thereafter, the plaintiffs
withdrew their claims against the named defendant;
subsequently, the court, Shaban, J., granted the motion
to dismiss filed by the defendant town of Watertown
et al. and rendered judgment thereon, from which the
plaintiffs appealed to this court. Reversed; further pro-
ceedings.
Matthew C. Eagan, for the appellants (plaintiffs).
Alan R. Dembiczak, for the appellees (defendant town
of Watertown et al.).

Opinion

SUAREZ, J. The plaintiffs, MyHoopty.com, LLC
(MyHoopty), and Michael Festa,1 appeal from the judg-
ment of the trial court dismissing, on the grounds of res
1
This action originally was commenced by Festa only. On August 3,
2023, Festa filed a motion to cite in an additional party, MyHoopty.com,
LLC, as a party plaintiff. The court granted the motion on August 7,
Festa v. Watertown Police Dept.

judicata and collateral estoppel, their action alleging
negligence by the defendant town of Watertown (town)
and the defendant Joshua Bernegger, the chief of police
for the Watertown Police Department.2 On appeal, the
plaintiffs claim that the court improperly granted the
defendants’ motion to dismiss. Specifically, the plaintiffs
argue that the court improperly dismissed the action
because res judicata and collateral estoppel are not prop-
erly raised in a motion to dismiss and do not implicate
a court’s subject matter jurisdiction. We agree and,
accordingly, reverse the judgment of the court.
The following facts, as alleged by the plaintiffs in the
amended complaint dated December 10, 2024 (opera-
tive complaint), and procedural history are relevant
to our resolution of this appeal. MyHoopty is a towing
company located in Watertown.3 In 2021, the plain-
tiffs filed a prior action against the defendants and the
Watertown Police Department. See MyHoopty.com,
LLC v. Watertown, Superior Court, judicial district of
Waterbury, Docket No. CV-XX-XXXXXXX-S (prior action).
In that action, MyHoopty alleged breach of contract
and tortious interference with business relations, both
plaintiffs alleged fraudulent inducement of a business
contract, and Festa alleged intentional infliction of emo-
tional distress, negligent infliction of emotional distress,
and deprivation of his civil rights pursuant to General
Statutes § 52-571a. See id. Specifically, the plaintiffs in
the prior action alleged, inter alia, that MyHoopty was
improperly removed from the town’s “municipal tower
list” (tow list).
2023. We therefore refer to MyHoopty.com, LLC, and Festa collectively
as the plaintiffs and individually by name when appropriate.
2
The Watertown Police Department was originally named as a defen-
dant, but the claims asserted against that defendant were previously
withdrawn. Accordingly, all references in this opinion to the defendants
are to the town and Bernegger.
3
In his original complaint in the present action, Festa alleged that he is
the sole member of MyHoopty and that he runs its everyday operations.
Festa v. Watertown Police Dept.

The defendants in the prior action filed a motion for
summary judgment, asserting that “(1) [the town] [was]
entitled to governmental immunity as to the breach of
contract claims and intentional and negligent infliction of
emotional distress claims; (2) [Bernegger] [was] entitled
to qualified immunity as to the breach of contract claims
and intentional and negligent infliction of emotional
distress claims; (3) [Bernegger] [was] not a signatory
to the contracts and, therefore, the claims of breach of
contract fail[ed]; (4) [Bernegger] [could not] be sued in his
individual capacity; (5) [MyHoopty’s] breach of contract
claims fail[ed] as [it] [could not] establish damages; and
(6) [Festa’s] [claim] of deprivation of [his] civil rights
fail[ed] as [Bernegger] is a governmental employee and,
therefore, [Festa] cannot bring a class of one claim.” On
May 28, 2024, the court, Massicotte, J., granted the
motion for summary judgment in the prior action and
rendered judgment thereon.4
On January 6, 2023, Festa commenced the present
action. See footnote 1 of this opinion. In the operative
complaint, the plaintiffs alleged that, in retaliation for
the filing of the prior action, the defendants “coerced
[MyHoopty] and its employees to violate the release
provisions required by General Statutes (Rev. to 2023)
§ 14-145b.”5 Specifically, the plaintiffs alleged that cer-
tain police officers repeatedly had instructed them to
4
The court rendered summary judgment in favor of the defendants in
the prior action on several grounds, including, inter alia, that Bernegger
was entitled to absolute and/or statutory immunity with respect to cer-
tain claims and that the plaintiffs failed to put forth sufficient evidence
to create a genuine issue of material fact vis-à-vis certain other claims.
5
General Statutes (Rev. to 2023) § 14-145b (b), which was repealed
effective October 1, 2025, provides: “When a vehicle has been towed
or removed pursuant to sections 14-145 to 14-145c, inclusive, it shall
be released to its owner, a lending institution or a person authorized
by the owner or lending institution to regain possession, upon demand,
provided the demand is made between the hours of 8:00 a.m. and 5:00
p.m., Monday through Friday or at a reasonable time on Saturday,
Sunday or holidays and the owner or authorized person presents proof
of registration and pays the costs of towing or removal and of storage.”
Hereinafter, unless otherwise indicated, all references to § 14-145b
in this opinion are to the 2023 revision of the statute.
Festa v. Watertown Police Dept.

release vehicles that had been towed to owners when the
documentation provided by the owners did not meet the
requirements under § 14-145b. The plaintiffs further
alleged that, “[a]s a result of the actions of the defen-
dants, the [plaintiffs have] suffered . . . economic dam-
ages, loss of reputation, and loss of business goodwill.”
On December 19, 2024, after the court in the prior
action rendered summary judgment in favor of the defen-
dants, the defendants in the present case filed a motion
to dismiss the operative complaint on the grounds that
the plaintiffs’ claims were barred by the doctrines of res
judicata and collateral estoppel.6 In their memorandum
6
“Under the doctrine of res judicata [or claim preclusion], a final judg-
ment, when rendered on the merits, is an absolute bar to a subsequent
action, between the same parties or those in privity with them, upon
the same claim. . . . In order for res judicata to apply, four elements
must be met: (1) the [prior] judgment must have been rendered on the
merits by a court of competent jurisdiction; (2) the parties to the prior
and subsequent actions must be the same or in privity; (3) there must
have been an adequate opportunity [in the prior action] to litigate the
[omitted claim] fully; and (4) the same underlying claim must be at
issue. . . . [T]he essential concept of the modern rule of [res judicata]
is that a judgment against [a party] is preclusive not simply when it is
on the merits but when the procedure in the first action afforded [the
party] a fair opportunity to get to the merits. . . .
“Collateral estoppel, or issue preclusion, is that aspect of res judicata
which prohibits the relitigation of an issue when that issue was actu-
ally litigated and necessarily determined in a prior action between the
same parties upon a different claim. . . . For an issue to be subject to
collateral estoppel, it must have been fully and fairly litigated in the
first action. It also must have been actually decided and the decision
must have been necessary to the judgment. . . .
“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. . . . If
an issue has been determined, but the judgment is not dependent [on]
the determination of the issue, the parties may relitigate the issue in a
subsequent action. . . . Before collateral estoppel applies [however] there
must be an identity of issues between the prior and subsequent proceed-
ings. To invoke collateral estoppel the issues sought to be litigated in
the new proceeding must be identical to those considered in the prior
proceeding. . . . In other words, collateral estoppel has no application
in the absence of an identical issue. . . . Further, an overlap in issues
does not necessitate a finding of identity of issues for the purposes of
Festa v. Watertown Police Dept.

of law in support of their motion to dismiss, the defen-
dants argued that “it is undisputed that summary judg-
ment granted in the defendants’ favor was rendered on
the merits by a court of competent jurisdiction. Next,
it is undisputed that the parties to the two actions are
the same. The named plaintiffs and defendants in both
actions are identical. Moreover, it is undisputed that
there was an adequate opportunity to litigate the mat-
ter fully before a competent jurisdiction. . . . Lastly, it
is undisputed that the same underlying claim is at issue.
Both suits allege claims of negligence against the same
defendants in connection with the plaintiffs’ towing
business and interactions with the Watertown Police
[Department].” The defendants stated that, “[a]s a result
of the foregoing, the plaintiffs’ [operative] complaint is
barred by res judicata and collateral estoppel, depriving
this court of jurisdiction to hear the claim.” In addition
to submitting a memorandum of law in support of the
motion to dismiss, the defendants attached as an exhibit
the May 28, 2024 order from the court in the prior action,
in which the court granted the defendants’ motion for
summary judgment in that action.
The plaintiffs filed an objection to the defendants’
motion to dismiss, arguing that their claims were not
barred by res judicata because both the claims and the
parties in the present action differed from those in the
prior action. The plaintiffs further argued that collat-
eral estoppel did not bar their claims because the court
had not yet adjudicated the “new issues” alleged in the
operative complaint. The defendants filed a reply to the
plaintiffs’ objection on February 4, 2025. The court heard
oral argument on the defendants’ motion to dismiss on
February 19, 2025.
On March 3, 2025, the court, Shaban, J., issued a
memorandum of decision granting the motion to dis-
miss. The court stated that, “[i]n light of the plaintiffs’
collateral estoppel.” (Citations omitted; internal quotation marks omit-
ted.) Manufacturers & Traders Trust Co. v. Virgulak, 233 Conn. App.
329, 346–48, 340 A.3d 521 (2025).
Festa v. Watertown Police Dept.

allegations referencing a separate prior action between
the parties, the court . . . accepts as fact that the plain-
tiffs in that action alleged claims of breach of contract,
tortious interference with business relations, fraudulent
inducement of a business contract, intentional infliction
of emotional distress, negligent infliction of emotional
distress, and deprivation of civil rights . . . . In that
action, they allege[d] [that] the defendants removed their
towing business from the [tow list]. As to the last three
counts of that complaint, the plaintiffs alleged in part
that ‘[t]he defendant[s] engaged in the use of threat or
force, in that they interjected in civil matters, threaten-
ing [Festa], attempting to place him in a false light to
conspire to remove him from the [tow list], threatened to
arrest . . . Festa, if he did not release vehicles in violation
of . . . § 14-145b (b), and the plaintiff[s] [contended] that
the [defendants’] conduct, when viewed objectively, was
clearly beyond what any reasonable person would have
undertaken in similar circumstances.’ . . . The plaintiffs
also alleged that ‘[t]he defendant[s] engaged in the use
[or] threat [of] force, in that they threatened to arrest .
. . Festa if he did not release vehicles in violation of . . .
§ 14-145b (b).’ . . . That case was ultimately resolved by
summary judgment in favor of the defendants on May
28, 2024.” (Citations omitted.)
The court further stated that, “[i]n this case, the par-
ties are the same as those in the prior case. The plaintiffs’
claims in the instant case are based solely on the theory
of negligence. While the claims in the prior case were
based on theories of breach of contract, tortious interfer-
ence with business relations, fraudulent inducement of
a business contract, intentional infliction of emotional
distress, negligent infliction of emotional distress, and
deprivation of civil rights . . . they were all based on the
same fact pattern as the instant case. Both the prior and
instant lawsuits allege claims of negligence in one form or
another against the same defendants in connection with
the plaintiffs’ towing business and interactions with the
Watertown Police Department. The plaintiffs had ample
opportunity to litigate their claims in the prior action. . . .
Festa v. Watertown Police Dept.

The plaintiffs acknowledged at oral argument that both
cases alleged negligence on the part of the defendants.
. . . Therefore, it is undisputed that the same underly-
ing claim is at issue.” (Footnotes omitted.) The court
concluded that res judicata barred the plaintiffs’ claims
because the “facts and issues raised in this matter either
were, or could have been, raised and addressed during
the pendency of the prior matter.”
The court further concluded that collateral estoppel
barred the plaintiffs’ claims. The court reasoned that
“the comparison of the two complaints and the issues
raised in each make clear that the plaintiffs’ interests
were sufficiently represented in that action so that the
application of collateral estoppel in the instant action is
not inequitable. The plaintiffs in the prior action shared
the same legal rights as the plaintiffs in this action. The
issues they raise here were fully litigated in the prior
action.”
Therefore, the court concluded that the “principles of
res judicata and collateral estoppel are applicable to this
matter” and that, “[t]he issue of jurisdiction having been
raised, the plaintiffs [had] failed to meet their burden
to establish the court’s jurisdiction over the matter.”
Accordingly, the court rendered judgment dismissing
the plaintiffs’ action, and this appeal followed.
On appeal, the plaintiffs claim that the court improp-
erly granted the defendants’ motion to dismiss. Specifi-
cally, the plaintiffs argue that “[n]either res judicata
nor collateral estoppel is a proper basis on which to
predicate a motion to dismiss for lack of subject mat-
ter jurisdiction,”7 and, therefore, the court improperly
dismissed the action on that basis. We agree.
7
The plaintiffs concede that “they did not raise the argument that
res judicata and collateral estoppel are not properly raised in a motion
to dismiss [before] the trial court” but contend that “such failure does
not preclude them from raising the issue on appeal because the motion
to dismiss raises a claim of subject matter jurisdiction.” The plaintiffs
argue in the alternative that it was plain error for the court to grant the
motion to dismiss because “the case law of this court and our Supreme
Festa v. Watertown Police Dept.

We begin by setting forth our standard of review and
applicable legal principles. Practice Book § 10-30 (a)
provides: “A motion to dismiss shall be used to assert:
(1) lack of jurisdiction over the subject matter; (2) lack
of jurisdiction over the person; (3) insufficiency of pro-
cess; and (4) insufficiency of service of process.” “The
standard of review for a court’s decision on a motion
to dismiss is well settled. A motion to dismiss tests,
inter alia, whether, on the face of the record, the court
is without jurisdiction. . . . [O]ur review of the court’s
ultimate legal conclusion and resulting [determination]
of the motion to dismiss will be de novo. . . . When a . . .
court decides a jurisdictional question raised by a pretrial
motion to dismiss, it must consider the allegations of
the complaint in their most favorable light.” (Internal
quotation marks omitted.) Larmel v. Metro North Com-
muter Railroad Co., 200 Conn. App. 660, 668, 240 A.3d
1056 (2020), aff’d, 341 Conn. 332, 267 A.3d 162 (2021).
“Subject matter jurisdiction involves the authority of
a court to adjudicate the type of controversy presented
by the action before it. . . . A court does not truly lack
subject matter jurisdiction if it has competence to enter-
tain the action before it. . . . Once it is determined that a
[court] has authority or competence to decide the class
of cases to which the action belongs, the issue of subject
matter jurisdiction is resolved in favor of entertaining
the action. . . . It is well established that, in determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.”
(Emphasis omitted; internal quotation marks omitted.)
Court expressly state that res judicata and collateral estoppel are not
appropriately raised in a motion to dismiss.”
We conclude that we may review the plaintiffs’ claim that the court
incorrectly determined that it did not have subject matter jurisdiction
over the present action. It is well settled that our review of the court’s
determination that it lacked subject matter jurisdiction, an issue that
may be raised any time, is plenary. See, e.g., Townsend v. Commissioner
of Correction, 226 Conn. App. 313, 326 n.13, 317 A.3d 1147 (2024)
(issues that implicate trial court’s subject matter jurisdiction “may be
raised at any time and . . . [are] not subject to our rules of preservation”
(internal quotation marks omitted)). We therefore need not consider
whether the plaintiffs’ claims constituted plain error.
Festa v. Watertown Police Dept.

McKinnon v. Gardner, 238 Conn. App. 694, 704, ___
A.3d ___ (2026).
Our Supreme Court has stated that “[r]es judicata is
not included among the permissible grounds on which
to base a motion to dismiss . . . [and] therefore must be
asserted as a special defense. . . . It may not be raised by a
motion to dismiss. . . . Of course, there is no reason why,
in an appropriate case, once the defense of res judicata
has been raised the issue may not be resolved by way of
summary judgment.” (Citations omitted.) Zizka v. Water
Pollution Control Authority, 195 Conn. 682, 687, 490
A.2d 509 (1985). Furthermore, Practice Book § 10-50
provides in relevant part: “Facts which . . . show . . .
that the plaintiff[s] ha[ve] no cause of action, must be
specially alleged. Thus . . . res judicata must be specially
pleaded . . . .” See also, e.g., Akinyele v. Huntington
Condominium Assn., Inc., 238 Conn. App. 824, 835–36
n.15, ___ A.3d (2026) (“[U]nlike claims implicating
subject matter jurisdiction, which may be raised at any
time . . . a claim that an action or claim is barred by res
judicata or collateral estoppel must be raised in the trial
court through appropriate pleadings. . . . Thereafter,
res judicata may properly be raised by way of a motion
for summary judgment.” (Citations omitted; internal
quotation marks omitted.)); Wells Fargo Bank, National
Assn. v. Doreus, 218 Conn. App. 77, 80 n.3, 290 A.3d
921 (“a motion to dismiss for lack of subject matter
jurisdiction is not a proper vehicle for presentation of
a claim that the doctrines of res judicata and collateral
estoppel operate to bar an action, as those doctrines do
not provide the basis for a judgment of dismissal”), cert.
denied, 347 Conn. 904, 297 A.3d 198 (2023).
Similarly, “the doctrine of collateral estoppel does not
implicate a court’s subject matter jurisdiction. . . . Even
when applicable, therefore, collateral estoppel does not
mandate dismissal of a case.” (Citations omitted.) State
v. T.D., 286 Conn. 353, 360 n.6, 944 A.2d 288 (2008).
Accordingly, “[c]ollateral estoppel, like res judicata, must
be specifically pleaded . . . as an affirmative defense . . . .”
Festa v. Watertown Police Dept.

(Internal quotation marks omitted.) Wilcox v. Webster
Ins., Inc., 294 Conn. 206, 222, 982 A.2d 1053 (2009);
see also, e.g., Hanson Development Co. v. East Great
Plains Shopping Center, Inc., 195 Conn. 60, 64 n.3, 485
A.2d 1296 (1985) (declining to consider res judicata
defense when it was not specially pleaded); Geremia v.
Geremia, 159 Conn. App. 751, 772 n.15, 125 A.3d 549
(2015) (concluding that doctrines of res judicata and col-
lateral estoppel are not proper basis on which to predicate
motion to dismiss for lack of subject matter jurisdiction
and noting that “[t]hose doctrines properly are raised by
motion for summary judgment”).
Accordingly, a motion to dismiss is not a proper pro-
cedural vehicle to raise the defenses of res judicata or
collateral estoppel. See, e.g., Grant v. Bassman, 221
Conn. 465, 472–73, 604 A.2d 814 (1992) (claim that
injured plaintiff made exclusive election of workers’
compensation “is properly raised by a special defense”
and motion to dismiss was not “the proper procedural
vehicle” to plead that “challenge to the plaintiffs’ com-
plaint”); Zizka v. Water Pollution Control Authority,
supra, 195 Conn. 687 (special defense “may not be raised
by a motion to dismiss”); Gianetti v. Connecticut News-
papers Publishing Co., 136 Conn. App. 67, 75, 44 A.3d
191 (“[statute of limitations] defenses are appropriately
raised as special defenses . . . and not in motions to dis-
miss”), cert. denied, 307 Conn. 923, 55 A.3d 567 (2012);
Sullivan v. Thorndike, 104 Conn. App. 297, 309–10, 934
A.2d 827 (2007) (concluding that trial court “improperly
based its granting of the defendant’s motion to dismiss
on the defendant’s special defenses”), cert. denied, 285
Conn. 907, 942 A.2d 415 (2008), and cert. denied, 285
Conn. 908, 942 A.2d 416 (2008); John H. Kolb & Sons,
Inc. v. G & L Excavating, Inc., 76 Conn. App. 599, 606,
821 A.2d 774 (motion to dismiss is improperly granted
“when based on a special defense”), cert. denied, 264
Conn. 919, 828 A.2d 617 (2003).
In the present case, the defendants have not filed an
answer raising res judicata or collateral estoppel as a
Festa v. Watertown Police Dept.

special defense. Rather, they asserted, in a motion to
dismiss, that the plaintiffs’ claims were “barred by res
judicata and collateral estoppel, depriving [the] court
of jurisdiction to hear the claim.” In their accompany-
ing memorandum of law, they argued, inter alia, that
the “plaintiffs [were] attempting to relitigate the same
underlying facts issues that were decided upon in the
prior proceeding.” Accordingly, the defendants main-
tained that the court should grant “their motion to dis-
miss the entirety of the [operative] complaint.”
We conclude that the court’s determination that the
doctrines of res judicata and collateral estoppel deprived
it of subject matter jurisdiction is incorrect. As stated
previously, neither res judicata nor collateral estoppel
implicates the court’s subject matter jurisdiction. See
Zizka v. Water Pollution Control Authority, supra, 195
Conn. 687. Thus, the defendants’ motion to dismiss was
not the proper procedural vehicle to adjudicate the appli-
cability of the doctrines of res judicata and/or collateral
estoppel. See, e.g., Labbe v. Pension Commission, 229
Conn. 801, 816, 643 A.2d 1268 (1994) (concluding that
res judicata does not provide basis for dismissal but,
rather, “it is a special defense that is considered after any
jurisdictional thresholds are passed” (emphasis added)).
For similar reasons, we reject the defendants’ alterna-
tive ground for affirmance. The defendants argue that
the court’s judgment can be affirmed on the alternative
ground8 that “all the facts are undisputed in the trial
court record and, therefore, the defendants would be
entitled to summary judgment in their favor, as a matter
8
The defendants did not file a preliminary statement of issues on appeal
raising their alternative ground for affirmance pursuant to Practice Book
§ 63-4 (a) (1) (A). This court is not precluded, however, from review-
ing an alternative ground that was not raised pursuant to § 63-4 (a) (1)
(A) so long as the appellant will not be prejudiced by consideration of
that ground for affirmance. See, e.g., State v. Osuch, 124 Conn. App.
572, 580–81, 5 A.3d 976, cert. denied, 299 Conn. 918, 10 A.3d 1052
(2010). In the present case, the plaintiffs had an adequate opportunity to
respond to the defendants’ arguments in their reply brief. Accordingly,
it is appropriate for this court to consider the defendants’ alternative
ground for affirmance. See id.
Festa v. Watertown Police Dept.

of law.” We decline the defendants’ invitation, offered
without citation to any relevant authority, to treat their
procedurally improper motion to dismiss as a motion for
summary judgment.9
This court previously has stated that “[a] trial court
applies different principles and a different analysis when
ruling on a motion to dismiss as opposed to a motion
for summary judgment.” Henderson v. Lagoudis, 148
Conn. App. 330, 339, 85 A.3d 53 (2014). “Whereas a
motion to dismiss is decided only on the allegations in
the complaint and the facts implied from those allega-
tions, summary judgment is decided by looking at all
of the pleadings, affidavits and documentary evidence
presented to the court in support of the motion. The latter
standard, therefore, takes account of the facts that have
been developed through discovery, rather than merely
relying on the plaintiffs’ allegations at the outset of the
action.” (Emphasis in original; internal quotation marks
omitted.) Manifold v. Ragaglia, 94 Conn. App. 103, 120,
891 A.2d 106 (2006). The defendants have not offered
any reason as to why this court should depart from these
well settled principles. Therefore, the defendants’ alter-
native ground for affirmance is unavailing.
In light of the foregoing, we conclude that the court
improperly concluded that it lacked subject matter
jurisdiction and dismissed the plaintiffs’ action on the
grounds of res judicata and collateral estoppel.
The judgment is reversed and the case is remanded with
direction to deny the defendants’ motion to dismiss and
9
The defendants also maintain that, even if this court agrees with the
plaintiffs’ argument that the court improperly dismissed the action on
the grounds of res judicata and collateral estoppel, any such error would
be harmless. In support of this argument, the defendants assert that
this court “can affirm the proper result of the trial court for a different
reason. . . . [A]ll [of] the facts are undisputed in the trial court record,
and, therefore, the defendants would be entitled to summary judgment
in their favor, as a matter of law.” We conclude that the defendants’
harmless error argument is identical to their argument in support of
their alternative ground for affirmance, and, accordingly, we need not
address that argument separately.
Festa v. Watertown Police Dept.

for further proceedings according to law.
In this opinion the other judges concurred.