Cadle Co. v. Ogalin , 175 Conn. App. 1 ( 2017 )

 THE CADLE COMPANY v. FRANK F. OGALIN
(AC 38635)
DiPentima, C. J., and Beach and Westbrook, Js.*
Syllabus
The plaintiff, the assignee of a judgment rendered against the defendant in
1994, brought this action in 2013 seeking, in a two count complaint, to
enforce the 1994 judgment, which remained unsatisfied. After the trial
court granted in part the plaintiff’s motion to strike the defendant’s
special defenses directed at count one of the complaint, it granted the
plaintiff’s motion for summary judgment as to the first count of the
complaint. Thereafter, the court issued an amended memorandum of
decision rendering judgment in favor of the plaintiff as to count one
and awarding the plaintiff postjudgment interest. Subsequently, the court
granted the plaintiff’s motion to withdraw the second count of the
complaint, and the defendant appealed to this court. Held:
1. The defendant could not prevail on his claim that the trial court improperly
granted the plaintiff’s motion to strike his second special defense to
count one of the complaint, which alleged that because the plaintiff
already had taken steps in 2013 to collect on the 1994 judgment via
weekly payments, wage executions and property executions, the present
action was duplicative, unfair, inequitable, vexatious and oppressive:
although an action on a judgment is not favored as being generally
vexatious and oppressive, our Supreme Court has determined previously
that the weight of authority is that an allegation of nonpayment is
sufficient reason for initiating an action, and the plaintiff here alleged
nonpayment of the 1994 judgment; moreover, the defendant failed to
provide any authority in support of his claim that the present action was
unfair and duplicative due to the fact that active collection proceedings
remained pending before the trial court.
2. The trial court properly granted the plaintiff’s motion for summary judg-
ment as to count one of the complaint; that court properly determined
that the defendant’s special defense of laches, an equitable defense, was
not applicable to the plaintiff’s action for monetary damages, which was
filed within the relevant limitations period pursuant to statute (§ 52-
598), and that even if the doctrine of laches applied, the defendant had
not alleged facts other than the mere lapse of time that would create
a genuine issue of material fact as to whether he was prejudiced by any
delay in enforcement, especially given that the action was brought within
the period authorized by § 52-598, and, thus, it was presumed that there
was no prejudice, and the doctrine of laches was not imputed to the
plaintiff’s claim.
3. This court declined to consider the defendant’s claim, raised for the first
time on appeal, that the trial court improperly awarded the plaintiff
postjudgment interest; although the defendant claimed on appeal that
because the 1994 judgment did not award postjudgment interest, it was
res judicata as to the issue of postjudgment interest, the defendant failed
to specifically plead the issue of res judicata as a special defense, nor
was it mentioned in his opposition to the motion for summary judgment.
Argued March 9—officially released July 25, 2017
Procedural History
Action, inter alia, to enforce a judgment, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield, where the court, Kamp, J., granted
in part the plaintiff’s motion to strike the defendant’s
special defenses; thereafter, the court, Hon. Richard
P. Gilardi, judge trial referee, granted the plaintiff’s
motion for summary judgment; subsequently, the court,
Hon. Richard P. Gilardi, judge trial referee, issued a
corrected memorandum of decision and rendered sum-
mary judgment for the plaintiff; thereafter, the plaintiff
withdrew the complaint in part, and the defendant
appealed to this court. Affirmed.
Roy W. Moss, for the appellant (defendant).
Paul N. Gilmore, with whom, on the brief, was Chris-
topher A. Klepps, for the appellee (plaintiff).
Opinion
DiPENTIMA, C. J. The defendant, Frank F. Ogalin,
appeals from the judgment of the trial court rendered
in favor of the plaintiff, The Cadle Company. On appeal,
the defendant claims that the court improperly (1)
granted the plaintiff’s motion to strike his second spe-
cial defense, (2) granted the plaintiff’s motion for sum-
mary judgment and (3) awarded postjudgment interest
to the plaintiff. We disagree, and, accordingly, affirm
the judgment of trial court.
The following facts and procedural history are rele-
vant to our discussion. On September 25, 2013, the
plaintiff commenced the present action via a two count
complaint alleging a common-law action on a judgment
and an action on a judgment under principles of unjust
enrichment.1 Specifically, the complaint alleged that the
plaintiff was the assignee of a judgment rendered
against the defendant in the amount of $137,055.17 in
a case titled Great Country Bank v. Ogalin, Superior
Court, judicial district of Fairfield Docket No. CV-93-
0303908-S, (March 15, 1994) (1994 judgment). The plain-
tiff claimed that the 1994 judgment remained unsatisfied
and fully enforceable. The plaintiff sought the entry of
a new judgment for the outstanding amount from the
1994 judgment, as well as postjudgment interest.
The defendant filed an answer and raised three spe-
cial defenses with respect to the first count of the com-
plaint. First, he claimed that the first count failed to
state a cognizable cause of action. Second, he alleged
that ‘‘[i]n 2013 [the] plaintiff obtained an order of weekly
payments and wage and property executions in the
action referred to in the first count. By virtue of pending
postjudgment motions and proceedings, [the] plaintiff
is seeking to collect the prior judgment. Under the fore-
going circumstances, this action is duplicative, unfair,
inequitable, vexatious, and oppressive against [the]
defendant.’’ Third, the defendant claimed that the plain-
tiff had not sought an order of payment or execution
on the 1994 judgment until more than eighteen years
had passed, and, therefore, the doctrine of laches barred
the present action.
The plaintiff moved to strike the special defenses
directed at count one of the complaint. The defendant
filed a memorandum of law in opposition to the motion
to strike. The court, Kamp, J., held a hearing on Septem-
ber 15, 2014, on the plaintiff’s motion to strike and
granted the plaintiff’s motion with respect to the first
and second special defenses to count one. It denied the
motion as to the third special defense alleging laches.
On April 23, 2014, the plaintiff filed a motion for
summary judgment as to the first count of the com-
plaint. The court denied this motion, without prejudice,
on July 7, 2014. The plaintiff filed a second motion for
summary judgment as to the first count on December
22, 2014. The defendant filed a memorandum in opposi-
tion to this motion on February 11, 2015. On June 10,
2015, the court, Hon. Richard P. Gilardi, judge trial
referee, issued a memorandum of decision granting the
plaintiff’s motion for summary judgment.
The court first concluded that General Statutes § 52-
598 authorized the present action on the 1994 judgment
and that the plaintiff had commenced it timely. Next, the
court considered the question of whether the present
action was vexatious and oppressive. It reasoned that
while a separate action on a judgment may be consid-
ered vexatious and oppressive, this type of action con-
stituted a viable option for the plaintiff under our law.
Additionally, the defendant had failed ‘‘to provide, nor
has there been found, any support for the proposition
that an action on a judgment is permitted only where
a plaintiff establishes that the action is neither vexatious
nor oppressive. To require otherwise would miscon-
strue the nature of an action on a judgment and place
an additional burden on plaintiffs not contemplated by
the law.’’ Additionally, the court determined that the
defense of laches did not apply to the present action
because it was not a case brought in equity; further,
even if laches did apply, the defendant failed to demon-
strate an issue of fact as to whether he had been preju-
diced by the lapse of time.
Finally, the court addressed the claim that postjudg-
ment interest accrued from the 1994 judgment at the
original contract rate of 9.75 percent. The defendant had
countered that genuine issues of material fact existed as
to whether the plaintiff was entitled to such interest.
Relying on General Statutes § 37-1 and our Supreme
Court’s decision in Sikorsky Financial Credit Union,
Inc. v. Butts, 315 Conn. 433, 438–45, 108 A.3d 228 (2015),
the trial court concluded that postjudgment interest
was mandatory at the statutory default rate of 8 percent.
On July 14, 2015, the court issued an ‘‘amended’’
memorandum of decision. It awarded the plaintiff
$369,957.57, which consisted of the principal owed from
the 1994 judgment in the amount of $137,055.17 and
$232,902.40 in postjudgment interest, calculated from
March 15, 1994 through June 15, 2015, at the statutory
rate of 8 percent. Approximately five weeks later, the
plaintiff moved for permission to withdraw count two
of its complaint, which the court granted on October
29, 2015.2 This appeal followed. Additional facts will be
set forth as necessary.
I
The defendant first claims that the court improperly
granted the plaintiff’s motion to strike his second spe-
cial defense. This defense alleged that the plaintiff had
taken steps, in 2013, to collect on the 1994 judgment
via weekly payments, wage executions and property
executions; the present action, therefore, was duplica-
tive, unfair, inequitable, vexatious and oppressive. The
plaintiff counters that the court properly struck the
second special defense. We agree with the plaintiff.
We begin by setting forth our standard of review.
‘‘Because a motion to strike challenges the legal suffi-
ciency of a pleading and, consequently, requires no
factual findings by the trial court, our review of the
court’s ruling on [a motion to strike] is plenary. . . .
A party wanting to contest the legal sufficiency of a
special defense may do so by filing a motion to strike.
The purpose of a special defense is to plead facts that
are consistent with the allegations of the complaint
but demonstrate, nonetheless, that the plaintiff has no
cause of action. . . . In ruling on a motion to strike,
the court must accept as true the facts alleged in the
special defenses and construe them in the manner most
favorable to sustaining their legal sufficiency.’’ (Cita-
tions omitted; internal quotation marks omitted.) Bara-
sso v. Rear Still Hill Road, LLC, 64 Conn. App. 9, 12–13,
779 A.2d 198 (2001); see also Doe v. Hartford Roman
Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d
462 (2015); R.S. Silver Enterprises, Inc. v. Pascarella,
163 Conn. App. 1, 20, 134 A.3d 662, cert. denied, 320
Conn. 929, 133 A.3d 460 (2016).
The defendant’s second special defense alleged that
‘‘[i]n 2013 [the] plaintiff obtained an order of weekly
payments and wage and property executions in the
action referred to in the first count. By virtue of pending
postjudgment motions and proceedings, [the] plaintiff
is seeking to collect the prior judgment. Under the fore-
going circumstances, this action is duplicative, unfair,
inequitable, vexatious, and oppressive against the
defendant.’’ In the memorandum of law opposing the
motion to strike, the defendant argued that a second
action on a judgment generally is considered vexatious
and oppressive.
The plaintiff, in its motion to strike, claimed that
this special defense was legally insufficient and was
contrary to the controlling precedent from our Supreme
Court. Specifically, the plaintiff alleged that the present
case was not duplicative, vexatious, oppressive, unfair
or inequitable, and that the passage of time statutorily
had barred it from obtaining an execution on the 1994
judgment. The plaintiff also alleged that any pending
motions from that case did not impact the propriety of
the present action.
The sum of the defendant’s appellate argument with
respect to this issue is as follows: ‘‘The foregoing
defense alleges facts that exemplify why a second
action on a money judgment is generally considered
vexatious and oppressive. Garguilo v. Moore, 156 Conn.
359 [242 A.2d 716] (1968). In the present case, as alleged
in the second special defense, the action is duplicative
and unfair, if for no other reason than the prior action
remains pending with active collection proceedings
before the court. For the foregoing reason, [the defen-
dant’s] second [special] defense as to the first count
state[s] a valid defense. It was error to strike said
defense.’’
The defendant’s reliance on Garguilo is misplaced.
In that case, our Supreme Court stated: ‘‘Although an
action on a judgment is not favored as being generally
vexatious and oppressive, the weight of authority is to
the effect that an allegation of nonpayment is suffi-
cient reason for instituting suit. Denison v. Williams,
4 Conn. 402, 404 [(1822)] . . . .’’ (Emphasis added.)
Garguilo v. Moore, supra, 156 Conn. 361. The plaintiff
alleged nonpayment of the 1994 judgment; Garguilo,
therefore, does not support the defendant’s appellate
argument herein.
With respect to the issue of the effect of the ‘‘active
collection proceedings,’’ the defendant failed to provide
this court with any authority in support of his argument.
We will not reverse the trial court on the basis of a
party’s bald assertion. ‘‘We consistently have held that
[a]nalysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly. . . . [F]or this court judi-
ciously and efficiently to consider claims of error raised
on appeal . . . the parties must clearly and fully set
forth their arguments in their briefs. We do not reverse
the judgment of a trial court on the basis of challenges
to its rulings that have not been adequately briefed.
. . . The parties may not merely cite a legal principle
without analyzing the relationship between the facts of
the case and the law cited. . . . It is not enough merely
to mention a possible argument in the most skeletal
way, leaving the court to do counsel’s work, create the
ossature for the argument, and put flesh on its bones.’’
(Internal quotation marks omitted.) NRT New England,
LLC v. Jones, 162 Conn. App. 840, 856, 134 A.3d 632
(2016); see Bernhard-Thomas Bluilding Systems, LLC
v. Dunican, 100 Conn. App. 63, 69–70 n.6, 918 A.2d 889
(2007), aff’d, 286 Conn. 548, 944 A.2d 329 (2008); see
also Quickpower International Corp. v. Danbury, 69
Conn. App. 756, 759–60, 796 A.2d 622 (2002) (minds of
appellate judges are swayed by thorough and rigorous
legal analysis supported by citation to competent
authority and, therefore, in order to prevail, appellant
must do more than assert unsubstantiated claims).
Accordingly, we conclude that the defendant failed to
persuade us that the court improperly granted the
motion to strike his second special defense.3
II
The defendant next claims that the court improperly
granted the plaintiff’s motion for summary judgment.
Specifically, he argues that a genuine issue of material
fact existed with respect to his special defense of laches.
We agree with the trial court that laches, an equitable
defense, is inapplicable to the plaintiff’s action for mon-
etary damages, which was filed timely pursuant to the
relevant statute of limitations, and that the defendant
had failed to establish a genuine issue of material fact
that he was prejudiced by the delay. The court, there-
fore, properly granted the plaintiff’s motion for sum-
mary judgment.
As a preliminary matter, we set forth our standard
of review and the relevant legal principles. ‘‘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. . . . As the
burden of proof is on the movant, the evidence must
be viewed in the light most favorable to the opponent.
. . . When documents submitted in support of a motion
for summary judgment fail to establish that there is no
genuine issue of material fact, the nonmoving party
has no obligation to submit documents establishing the
existence of such an issue. . . . Once the moving party
has met its burden, however, the opposing party must
present evidence that demonstrates the existence of
some disputed factual issue. . . . It is not enough, how-
ever, for the opposing party merely to assert the exis-
tence of such a disputed issue. Mere assertions of fact
. . . are insufficient to establish the existence of a
material fact and, therefore, cannot refute evidence
properly presented to the court under Practice Book
§ [17-45]. . . . Our review of the trial court’s decision
to grant [a] motion for summary judgment is plenary.’’
(Internal quotation marks omitted.) Rieffel v. Johnston-
Foote, 165 Conn. App. 391, 400, 139 A.3d 729, cert.
denied, 322 Conn. 904, 138 A.3d 289 (2016); see Capasso
v. Christmann, 163 Conn. App. 248, 257, 135 A.3d 733
(2016). Finally, we note that ‘‘because any valid special
defense raised by the defendant ultimately would pre-
vent the court from rendering judgment for the plaintiff,
a motion for summary judgment should be denied when
any [special] defense presents significant fact issues
that should be tried.’’ (Internal quotation marks omit-
ted.) Ulster Savings Bank v. 28 Brynwood Lane, Ltd.,
134 Conn. App. 699, 704, 41 A.3d 1077 (2012).
The following additional facts are necessary for our
discussion. The third special defense alleged that the
doctrine of laches barred the first count of the com-
plaint.4 The trial court rejected this defense for two
reasons: ‘‘The plaintiff here is not seeking equitable
relief from the court, but rather a judgment for money
damages. The doctrine of laches is, therefore, inapplica-
ble. Even assuming arguendo that the doctrine of laches
was applicable, the defendant had not alleged facts
other than the mere lapse of time which would create
an issue of fact as to whether the defendant was preju-
diced by any delay in enforcement. In fact, since the
action was brought within the statutory period author-
ized by § 52-598, presumptively there is no prejudice
and the doctrine should not be imputed to the plaintiff’s
claim. See John H. Kolb & Sons, Inc. v. G & L Excavat-
ing, Inc., [76 Conn App. 599, 613, 821 A.2d 774, cert.
denied, 264 Conn. 919, 828 A.2d 617 (2003)].’’
We recently explained that ‘‘[t]he defense of laches,
if proven, bars a plaintiff from seeking equitable relief
in a case in which there has been an inexcusable delay
that has prejudiced the defendant. First, there must
have been a delay that was inexcusable, and, second,
that delay must have prejudiced the defendant. . . .
We further noted that there must be unreasonable, inex-
cusable and prejudicial delay for the defense to apply.
. . . [A] laches defense is not . . . a substantive right
that can be asserted in both legal and equitable proceed-
ings. Laches is purely an equitable doctrine, is largely
governed by the circumstances, and is not to be imputed
to one who has brought an action at law within the
statutory period. . . . It is an equitable defense
allowed at the discretion of the trial court in cases
brought in equity.’’ (Citation omitted; emphasis in origi-
nal; internal quotation marks omitted.) Wiblyi v.
McDonald’s Corp., 168 Conn. App. 92, 103–104, 144 A.3d
530 (2016).
These statements from Wiblyi echoed those of our
Supreme Court in Doe v. Hartford Roman Catholic
Diocesan Corp., supra, 317 Conn. 398–99. Two points
from Doe and Wiblyi apply and directly control the
present appeal; first, laches does not apply to an action
at law brought within the statutory time period and
second, for laches to apply, there must be an unduly
prejudicial delay in bringing the action. Id.; Wiblyi v.
McDonald’s Corp., supra, 168 Conn. App. 103–104. The
trial court correctly applied these maxims in rejecting
the defendant’s special defense of laches in the present
case. The defendant’s appellate brief fails to address
how the trial court misapplied these principles regard-
ing laches. Accordingly, we reject this claim.5
III
The defendant’s final claim is that the court improp-
erly awarded the plaintiff postjudgment interest
because genuine issues of material fact existed as to
whether the plaintiff was entitled to interest. Specifi-
cally, he claimed that because the 1994 judgment did
not award postjudgment interest, that judgment, devoid
of such an award, ‘‘was res judicata as to the postjudg-
ment interest.’’ The plaintiff counters that the defendant
failed to raise the issue of res judicata as a special
defense and is barred from doing so for the first time
on appeal. It further contends that the court properly
awarded postjudgment interest from the 1994 judg-
ment.6 We agree with the plaintiff.
‘‘[R]es judicata and collateral estoppel are affirmative
defenses that may be waived if not properly pleaded.’’
Singhaviroj v. Board of Education, 124 Conn. App. 228,
233, 4 A.3d 851 (2010); see also Red Buff Rita, Inc. v.
Moutinho, 151 Conn. App. 549, 558, 96 A.3d 581 (2014);
Practice Book § 10-50. The defendant did not specifi-
cally plead the special defense of res judicata, nor was it
mentioned in his opposition to the motion for summary
judgment. We decline, therefore, to consider this argu-
ment that was raised for the first time on appeal.
Noonan v. Noonan, 122 Conn. App. 184, 190–91, 998
A.2d 231, cert. denied, 298 Conn. 928, 5 A.3d 490 (2010).
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
‘‘[A] party obtaining a judgment for money damages in Connecticut has
two means to enforce that judgment; it may seek an execution of the judg-
ment or it may initiate an independent action. See General Statutes § 52-
598 (a); see also 30 Am. Jur. 2d 84, Executions and Enforcement of Judgments
§ 47 (2005) (distinguishing between execution and action on judgment). [As
a general matter], under § 52-598 (a), a party has twenty years to execute
the judgment and twenty-five years to enforce it through a separate action.’’
Investment Associates v. Summit Associates, Inc., 309 Conn. 840, 849, 74
A.3d 1192 (2013).
2
See Practice Book §§ 61-1 and 61-2.
3
The plaintiff, of course, is not entitled to recover under both the 1994
judgment and the present action. ‘‘As [our Supreme Court] has stated, [t]he
rule precluding double recovery is a simple and time-honored maxim that
[a] plaintiff may be compensated only once for his just damages for the same
injury. . . . Connecticut courts consistently have upheld and endorsed the
principle that a litigant may recover just damages for the same loss only
once. The social policy behind this concept is that it is a waste of society’s
economic resources to do more than compensate an injured party for a loss
and, therefore, that the judicial machinery should not be engaged in shifting
a loss in order to create such an economic waste.’’ (Citation omitted; internal
quotation marks omitted.) Carlson v. Waterbury Hospital, 280 Conn. 125,
150–51 n.30, 905 A.2d 654 (2006); see also Gionfriddo v. Gartenhaus Cafe,
211 Conn. 67, 73, 557 A.2d 540 (1989) (double recovery foreclosed by rule
that only one satisfaction may be obtained for loss that is subject of two
or more judgments).
4
Specifically, the defendant alleged: ‘‘No order of payments or execution
on the judgment was sought until more than [eighteen] years elapsed from
the date of entry of the judgment. No attempt was made to foreclose judg-
ment liens lodged in connection with the judgment. This action is barred
by [the] plaintiff’s laches or other failure to take prompt action to enforce
the judgment.’’
5
As a result, we need not address the defendant’s arguments regarding
the plaintiff’s purported use, in the proceedings before the trial court, of
hearsay documents or the decision from the United States Bankruptcy Court.
6
We note that our Supreme Court has held that § 37-1 applies to interest
‘‘as compensation for a loan (interest eo nomine) . . . .’’ Sikorsky Financial
Credit Union, Inc. v Butts, supra, 315 Conn. 439. This statute sets a default
rule that a loan of money is subject to interest eo nomine at a rate of 8
percent. Id., 440. ‘‘Under § 37-1 (b), unless the parties agree otherwise,
postmaturity interest will accrue at the legal rate on the unpaid balance of
the loan. Thus, if the parties fail to specify whether interest will accrue
after maturity, or fail to specify the rate of postmaturity interest, § 37-1 (b)
mandates that interest eo nomine shall continue to accrue after maturity
at the legal rate. . . . Furthermore, postmaturity interest under § 37-1
(b) continues to accrue even after the entry of judgment and until the
outstanding balance is paid in full. . . . Consequently, an award of pre-
judgment and postjudgment interest on a loan that carries postmaturity
interest is not discretionary; it is an integral part of enforcing the parties’
bargain. . . . The trial court must, therefore, as part of any judgment enforc-
ing a loan, allow prejudgment and postjudgment interest at the agreed rate,
or the legal rate if no agreed rate is specified. The trial court is relieved of
this obligation only if the parties disclaim any right to interest eo nomine after
maturity.’’ (Citations omitted; emphasis added; internal quotation marks
omitted.) Id., 441–42.