Couloute v. Board of Education

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APPENDIX
GABRIEL COULOUTE ET AL. v. BOARD
OF EDUCATION OF THE TOWN
OF GLASTONBURY ET AL.*
Superior Court, Judicial District of Hartford
File No. CV-XX-XXXXXXX-S
Memorandum filed August 29, 2019

Proceedings

Memorandum of decision on defendants’ motion for
summary judgment. Motion granted.
Irving J. Pinsky, for the plaintiffs.
Keith R. Rudzik, for the defendants.
Opinion

HON. ROBERT B. SHAPIRO, JUDGE TRIAL REF-
EREE. Before the court is the defendants’ motion for
summary judgment (#104). The issue presented is
whether the court should grant the defendants’ motion
on the ground that the action is barred by the doctrine
of res judicata. The court heard oral argument at short
calendar on July 8, 2019.
I
BACKGROUND
Gabriel Couloute alleges that he suffered a football
related concussion from playing football at Glastonbury
High School during the 2016–2017 school year. During
this time, Gabriel Couloute was a minor. His mother,
April Couloute, the coplaintiff in this action, alleges
that she incurred damages and losses as a result of her
son’s medical care. In the plaintiffs’1 complaint, they
allege twenty counts against the defendants, the Board
of Education of the Town of Glastonbury; Alan Book-
man, Superintendent of Schools for the Glastonbury
School District; Nancy E. Bean, Principal of Glaston-
bury High School; Trish Witkin, athletic director; and
Mark Alexander, junior varsity football coach.
Each of the plaintiffs have alleged claims of negli-
gence and recklessness against each of the defendants.
The first, fifth, ninth, thirteenth, and seventeenth counts
are negligence based claims against each of the defen-
dants for their multitude of various failures arising out
of Gabriel Couloute’s participation in an October 20,
2016 football practice where he sustained a concussion.
In the second, sixth, tenth, fourteenth, and eighteenth
counts, Gabriel Couloute brought a recklessness claim
against each of the defendants on similar grounds. In
the third, seventh, eleventh, fifteenth, and nineteenth
counts of the complaint, April Couloute brought a negli-
gence claim against each of the named defendants for
damages she incurred for paying for treatment and med-
ical care for Gabriel Couloute. And in the fourth, eighth,
twelfth, sixteenth, and twentieth counts of the com-
plaint, April Couloute asserted a claim of recklessness
against the defendants.
The defendants moved for summary judgment (#104)
on the ground that the doctrine of res judicata bars this
action. The defendants claim that the plaintiffs already
brought these claims and/or had the opportunity to
bring these claims against each of the defendants. The
defendants further provide that all the defendants in
the first action are the same in the second action with
the exception of Mark Alexander, who has been substi-
tuted for Scott Daniels in the prior action.2 In the prior
action, April Couloute filed a twenty-four count com-
plaint, on behalf of Gabriel Couloute, against the Glas-
tonbury Board of Education, Bookman, Bean, Witkin,
twenty-four were negligence based claims against each
of the aforementioned defendants. Ultimately, the prior
action was disposed of by a motion to strike in Couloute
v. Board of Education, Superior Court, judicial district
of Hartford, Docket No. CV-XX-XXXXXXX-S (January 5,
2018) (Shapiro, J.). The plaintiffs took no further action
to replead the complaint. In the present case, the plain-
tiffs filed papers in opposition (#106). The defendants
filed a reply (#107).
II
STANDARD OF REVIEW
‘‘Summary judgment is a method of resolving litiga-
tion when 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. . . . The motion for sum-
mary judgment is designed to eliminate the delay and
expense of litigating an issue when there is no real issue
to be tried. . . . However, since litigants ordinarily
have a constitutional right to have issues of fact decided
by a jury . . . the moving party for summary judgment
is held to a strict standard . . . of demonstrating his
entitlement to summary judgment.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.)
Grenier v. Commissioner of Transportation, 306 Conn.
523, 534–35, 51 A.3d 367 (2012). ‘‘[S]ummary judgment
is an appropriate vehicle for raising a claim of res judi-
cata . . . .’’ (Citations omitted.) Joe’s Pizza, Inc. v.
Aetna Life & Casualty Co., 236 Conn. 863, 867 n.8, 675
A.2d 441 (1996). ‘‘Because res judicata or collateral
estoppel, if raised, may be dispositive of a claim, sum-
mary judgment [is] the appropriate method for resolving
a claim of res judicata.’’ Jackson v. R. G. Whipple, Inc.,
225 Conn. 705, 712, 627 A.2d 374 (1993).
III
DISCUSSION
The defendants argued that the motion for summary
judgment should be granted on the ground of res judi-
cata. The plaintiffs countered that summary judgment
is inappropriate because, when the first action and the
motion to strike were filed, the information they now
have was not available to them. The plaintiffs claimed
that this lack of information hindered their ability to
fairly litigate the matter. Further, the plaintiffs argued
that, pursuant to public policy, the court should not
apply res judicata to this case.
A
Res Judicata
‘‘[T]he doctrine of res judicata, or claim preclusion,
[provides that] a former judgment on a claim, if ren-
dered on the merits, is an absolute bar to a subsequent
action [between the same parties or those in privity
with them] on the same claim. A judgment is final not
only as to every matter which was offered to sustain
the claim, but also as to any other admissible matter
which might have been offered for that purpose. . . .
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. . . . In order for res judicata to apply, four ele-
ments must be met: (1) the judgment must have been
rendered on the merits by a court of competent jurisdic-
tion; (2) the parties to the prior and subsequent actions
must be the same or in privity; (3) there must have
been an adequate opportunity to litigate the matter fully;
and (4) the same underlying claim must be at issue.’’
(Emphasis in original; internal quotation marks omit-
ted.) Girolametti v. Michael Horton Associates, Inc.,
332 Conn. 67, 75, 208 A.3d 1223 (2019).
1
Element One
With respect to the first element, a judgment rendered
on the merits, it is well established ‘‘[t]hat a judgment
rendered pursuant to a motion to strike is a judgment
on the merits . . . .’’ Santorso v. Bristol Hospital, 127
Conn. App. 606, 617, 15 A.3d 1131 (2011), aff’d, 308
Conn. 338, 63 A.3d 940 (2013). In the first action, the
court granted the motion to strike the complaint in its
entirety. See Couloute v. Board of Education, supra,
Superior Court, Docket No. CV-XX-XXXXXXX-S. The plain-
tiffs do not argue that the motion to strike was not a
judgment on the merits. The first element is satisfied
because the ruling on the motion to strike was a judg-
ment on the merits.
2
Element Two
‘‘The following principles govern the second element
of res judicata, privity . . . . Privity is a difficult con-
cept to define precisely. . . . There is no prevailing
definition of privity to be followed automatically in
every case. It is not a matter of form or rigid labels;
rather it is a matter of substance. In determining
whether privity exists, we employ an analysis that
focuses on the functional relationships of the parties.
Privity is not established by the mere fact that persons
may be interested in the same question or in proving
or disproving the same set of facts. Rather it is, in
essence, a shorthand statement for the principle that
[preclusion] should be applied only when there exists
such an identification in interest of one person with
another as to represent the same legal rights so as to
justify preclusion. . . . While it is commonly recog-
nized that privity is difficult to define, the concept exists
to ensure that the interests of the party against whom
collateral estoppel [or res judicata] is being asserted
have been adequately represented . . . . A key consid-
eration in determining the existence of privity is the
sharing of the same legal right by the parties allegedly
in privity.’’ (Citation omitted; internal quotation marks
omitted.) Girolametti v. Michael Horton Associates,
Inc., supra, 332 Conn. 75–76.
‘‘Consistent with these principles, this court and
other courts have found a variety of factors to be rele-
vant to the privity question. These factors include the
functional relationships between the parties, how
closely their interests are aligned, whether they share
the same legal rights, equitable considerations, the par-
ties’ reasonable expectations, and whether the policies
and rationales that underlie res judicata—achieving
finality and repose, promoting judicial economy, and
preventing inconsistent judgments—would be served.
. . . [T]he crowning consideration, [however, is] that
the interest of the party to be precluded must have been
sufficiently represented in the prior action so that the
application of [res judicata] is not inequitable.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
76–77.
The first action was against the Glastonbury Board
of Education, Bookman, Bean, Witkin, and Daniels. In
the current action, the defendants are all the same with
the exception of Daniels, who has been replaced with
another Glastonbury High School football coach, Alex-
ander. The plaintiffs argued that Daniels and Alexander
are not in privity because the facts alleged against Dan-
iels are factually different from the facts alleged against
Alexander. The defendants counter that Alexander was
an agent of the same municipal board of education as
was Daniels, and, therefore, Alexander was in privity
for purposes of the first action. ‘‘It is well settled law
that an action against a government official in his or
her official capacity is not an action against the official,
but, instead is one against the official’s office and, thus,
is treated as an action against the entity itself. . . . [In
general] an official-capacity suit is, in all respects other
than name, to be treated as a suit against the entity.
. . . It is not a suit against the official personally, for the
real party in interest is the entity. . . . Since [officials]
represent not their own rights but the rights of the
municipality the agents of the same municipal corpora-
tion are in privity with each other and with the munici-
pality.’’ (Internal quotation marks omitted.) C & H Man-
agement, LLC v. Shelton, 140 Conn. App. 608, 614, 59
A.3d 851 (2013). Similarly, Daniels and Alexander were
in privity because both individuals were agents for Glas-
tonbury High School on behalf of the town of Glaston-
bury. It is clear that all the defendants in the current
case were all of the defendants in the first action with
the exception of the aforementioned substitution of
coaches. The second element of privity is satisfied.
3
Element Three
The third element requires an adequate opportunity
to litigate the matter fully. The defendants argued that
this third element is satisfied because, during the first
case, the plaintiffs took all the steps and opportunities
to fully litigate the matter. The plaintiffs counter that
they did not have a fair opportunity to litigate the claims
due to the unavailability of facts at the time of the prior
action since Gabriel Couloute would not speak in any
details as to the events that occurred during the football
practice on October 20, 2016.
In Tirozzi v. Shelby Ins. Co., 50 Conn. App. 680, 719
A.2d 62, cert. denied, 247 Conn. 945, 723 A.2d 323 (1998),
the plaintiff brought the same claims against the same
parties in two separate causes of actions. The first
action was disposed of by a motion to strike. The Appel-
late Court concluded that the second action was barred
by the doctrine of res judicata. The court reasoned that
‘‘[t]he motion to strike required the trial court to decide
the merits of the plaintiff’s claim. The parties had the
opportunity to fully litigate the matter. The motion to
strike was contested, and both parties participated in
oral argument. . . . After the trial court granted the
motion to strike, the plaintiff neither repleaded pursu-
ant to Practice Book § 10-44 nor took an appeal. The
plaintiff, therefore, had an adequate opportunity to liti-
gate the matter in the first action and to seek appellate
review.’’ Id., 686–87.
In the first action, the plaintiffs brought a twenty-
four count complaint against the defendants. The court
granted the motion to strike the entire complaint, which
included a negligence claim. The plaintiffs filed a
motion in opposition and supporting memorandum of
law. After the ruling, the plaintiffs filed a request for
reconsideration on the motion to strike. The plaintiffs
further filed an appeal. Similar to Tirozzi, in the present
action, the defendants contend that the plaintiffs had
the opportunity to fully litigate the matter because the
plaintiffs prepared a memorandum of law in opposition
to the motion to strike, attended oral argument on the
motion, filed a motion for reconsideration, and had
the opportunity to replead the causes of action. The
defendants further point out that the plaintiffs subse-
quently filed an appeal in the first action, regardless of
the fact that it was later withdrawn.
As for the recklessness claims, our Supreme Court
has emphasized that it is a ‘‘well settled rule that [a]
judgment is final not only as to every matter which was
offered to sustain the claim, but also as to any other
admissible matter which might have been offered for
that purpose . . . . The rule of claim preclusion pre-
vents reassertion of the same claim regardless of what
additional or different evidence or legal theories might
be advanced in support of it.’’ (Citations omitted; empha-
sis in original; internal quotation marks omitted.) Powell
v. Infinity Ins. Co., 282 Conn. 594, 607–608, 922 A.2d
1073 (2007). More recently, our Supreme Court, again,
reiterated this proposition, stating that, ‘‘[u]nder claim
preclusion analysis, a claim—that is, a cause of 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. . . . Moreover, claim preclu-
sion prevents the pursuit of any claims relating to the
cause of action which were actually made or might have
been made.’’ (Emphasis in original; internal quotation
marks omitted.) Ventres v. Goodspeed Airport, LLC,
301 Conn. 194, 205–206, 21 A.3d 709 (2011).
Accordingly, the plaintiffs had an adequate opportu-
nity to fully litigate the claims in the first action and
to seek appellate review. The recklessness claims are
identical to the negligence claims, except for the lan-
guage providing that the actions were done ‘‘con-
sciously’’ or ‘‘knowingly.’’ Although the plaintiffs did
not make a claim for recklessness in the first action, it
could have been asserted in the first action; thus, it is
also extinguished under the doctrine of res judicata. As
such, the third element is satisfied.
4
Element Four
‘‘To determine whether claims are the same for res
judicata purposes, this court has adopted the transac-
tional test. . . . Under the transactional test, res judi-
cata extinguishes 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 consti-
tute 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’ expecta-
tions or business understanding or usage. . . . [E]ven
though a single group of facts may give rise to rights
for several different kinds of relief, it is still a single
cause of action. . . . In applying the transactional test,
we compare the complaint in the [present] action with
the pleadings and the judgment in the earlier action.’’
(Citations omitted; internal quotation marks omitted.)
Wheeler v. Beachcroft, LLC, 320 Conn. 146, 159–60, 129
A.3d 677 (2016).
The defendants argued in support of their motion
that these are the same claims. They argued that ‘‘[t]he
central transactions to all of the claims in the first action
was the purported inadequacy of and lack of establish-
ing/following rules and procedures concerning head
injuries, the failure to provide information concerning
the dangers of concussions caused by repeated or
severe head blows in the sport of high school football,
and the mishandling of young Gabriel Couloute’s foot-
ball related injuries by school administrators and the
coaches.’’ See Defendants’ Memorandum of Law (#105)
p. 17. The plaintiffs countered that ‘‘[t]he first action
[was] predicated on repeated physical contact generally
occurring at unspecified and undetermined times dur-
ing the 2016–2017 football season, and cumulatively
leading to injury. There was no specific factual event
or events identified as to place, date or time as causing
a specific injury.’’ See Plaintiffs’ Memorandum of Law
(#106) p. 5. They contend that the second action is
based on a very specific set of facts detailing the date,
time, place, manner and precise injury causing event.
Applying the transactional test, the actions are clearly
related in time. Specifically, the first action alleged neg-
ligence that occurred in the time frame of the 2016–2017
school year. In the present action, the plaintiffs alleged
negligence and recklessness claims for injuries that
occurred on October 20, 2016. Further, these head injur-
ies in the current action have the same origin as in the
first action, to wit, the participation in playing high
school football. Additionally, the defendants argued
that the plaintiffs have the same motivation, which is
the recovery of damages from head trauma resulting in
brain injuries in 2016, and the rectification of inadequate
protocols and procedures related to concussions.
Although the plaintiffs argued that the current action
alleged narrower claims that are factually different from
the claims in the first action, due to new information
provided by Gabriel Couloute, and facts regarding exac-
erbation of his injury and/or impediment to his recovery
resulting from the failure and/or delay in implementing
educational accommodations, these arguments, never-
theless, fail. ‘‘The rule of claim preclusion prevents reas-
sertion of the same claim regardless of what additional
or different evidence or legal theories might be
advanced in support of it.’’ (Internal quotation marks
omitted.) New England Estates, LLC v. Branford, 294
Conn. 817, 842, 988 A.2d 229 (2010). Similarly, the Appel-
late Court has stated that ‘‘[t]he plaintiffs cannot reas-
sert their claim by proffering additional or new evi-
dence.’’ Honan v. Dimyan, 63 Conn. App. 702, 709,
778 A.2d 989, cert. denied, 258 Conn. 942, 786 A.2d
430 (2001).
Viewing the complaint in the light most favorable to
the plaintiffs and assuming that the plaintiffs truthfully
did not have certain factual information surrounding a
specific incident within that 2016–2017 football year
time frame available to them, Connecticut law does not
allow for the plaintiffs to circumvent the doctrine of
res judicata by the reassertion of the same claims even
after new information or evidence has been discovered.
B
Recognized Exceptions to Res Judicata
‘‘In establishing exceptions to the general application
of the preclusion doctrines, we have identified several
factors to consider, including: (1) whether another pub-
lic policy interest outweighs the interest of finality
served by the preclusion doctrines . . . (2) whether
the incentive to litigate a claim or issue differs as
between the two forums . . . (3) whether the opportu-
nity to litigate the claim or issue differs as between the
two forums . . . and (4) whether the legislature has
evinced an intent that the doctrine should not apply.’’
(Citations omitted.) Powell v. Infinity Ins. Co., supra,
282 Conn. 603. As discussed previously, the plaintiffs’
motivation to litigate the claim was the same in the
first action, the plaintiffs had an opportunity to litigate
the claims in the prior action, and there has been no
argument that the legislature has evinced an intent that
the doctrine should not apply. Therefore, the only argua-
bly applicable exception concerns whether another
public policy interest outweighs the interest of finality.
‘‘Because [the] doctrines [of res judicata and collat-
eral estoppel] are judicially created rules of reason that
are enforced on public policy grounds . . . whether to
apply either doctrine in any particular case should be
made based upon a consideration of the doctrine’s
underlying policies, namely, the interests of the defen-
dant and of the courts in bringing litigation to a close
. . . and the competing interest of the plaintiff in the
vindication of a just claim. . . . These [underlying] pur-
poses are generally identified as being (1) to promote
judicial economy by minimizing repetitive litigation; (2)
to prevent inconsistent judgments which undermine the
integrity of the judicial system; and (3) to provide
repose by preventing a person from being harassed by
vexatious litigation. . . . Stability in judgments grants
to parties and others the certainty in the management
of their affairs which results when a controversy is
finally laid to rest . . . . [T]he application of either
doctrine has dramatic consequences for the party
against whom it is applied, and . . . we should be care-
ful that the effect of the doctrine does not work an
injustice. . . . Thus, [t]he doctrines of preclusion . . .
should be flexible and must give way when their
mechanical application would frustrate other social pol-
icies based on values equally or more important than the
convenience afforded by finality in legal controversies.’’
(Citations omitted; internal quotation marks omitted.)
Id., 601–602.
Balancing the public policy considerations of the
interests of the defendants and the judicial system in
bringing litigation to a close, and the plaintiffs in vindi-
cation of a just claim, the evidence of these repetitive
claims provides support for bringing litigation to an
end. Granting the motion for summary judgment in this
case is in conformity with the exact purpose for which
the doctrine of res judicata exists. This case does not
present itself as one that would frustrate social policies
that are based on values equally or more important than
that which is afforded by finality in legal controversies.
CONCLUSION
For the reasons stated previously, there is no genuine
issue as to any material fact. The defendants have dem-
onstrated that they are entitled to judgment as a matter
of law. The defendants’ motion for summary judgment
is granted on the ground of res judicata.3
* Affirmed. Couloute v. Board of Education, 203 Conn. App. 120,
A.3d (2021).
1
Gabriel Couloute and April Couloute are identified collectively as the
plaintiffs and individually by name where appropriate.
2
In the first action, Scott Daniels, varsity football coach, was a defendant
in the action instead of Mark Alexander.
3
During argument at short calendar on July 8, 2019, on the record, the
defendants stated their intention to go forward on the theory of res judicata
and stated that the court could consider the previously raised issue of
collateral estoppel waived. As such, the collateral estoppel issue has not
been addressed in this memorandum.