Legassey v. Shulansky

611 A.2d 930, 28 Conn. App. 653, 1992 Conn. App. LEXIS 320
CourtConnecticut Appellate Court
DecidedAugust 18, 1992
Docket10828
StatusPublished
Cited by43 cases

This text of 611 A.2d 930 (Legassey v. Shulansky) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Legassey v. Shulansky, 611 A.2d 930, 28 Conn. App. 653, 1992 Conn. App. LEXIS 320 (Colo. Ct. App. 1992).

Opinion

Lavery, J.

The plaintiffs, Paul Legassey and Roger Morgan, bring this appeal challenging the dismissal of [654]*654their motions to quash subpoenas served on their banks by the defendant commissioner of banking (commissioner). The commissioner sought the disclosure of the plaintiffs’ financial records in furtherance of an investigation into the plaintiffs’ possible violations of the Connecticut Uniform Securities Act, General Statutes § 36-470 et seq. The trial court found that the plaintiffs had filed their applications to quash in an untimely manner, and were therefore barred from maintaining a cause of action to quash in accordance with General Statutes § 36-9Z (b).1 We take judicial notice of the file in Morgan v. Brown, 219 Conn. 204, 592 A.2d 925 (1991), and sua sponte2 hold that the plaintiffs’ applications to quash, that gave rise to this appeal, were barred by the doctrine of res judicata.3

The record and briefs reveal the following relevant facts and procedural history of this case. General Statutes § 36-495 (a) grants the banking commissioner the authority to conduct investigations into possible violations of the Connecticut Uniform Securities Act [655]*655(CUSA), General Statutes § 36-470 et seq. Section 36-495 (b) confers on the commissioner the authority to subpoena witnesses and to require the production of books, papers, correspondence, memoranda, agreements, and other records or documents that may be relevant to his investigation.

Acting on a complaint, the commissioner began an investigation into the sale of units in four limited partnerships to determine whether there had been, or would be, any violations of CUSA. The investigative trail led to the plaintiffs’ bank accounts, to a financial entity known as Omni Group, Inc., and to Paul J. Legassey client’s fund accounts. On April 24,1990, the commissioner ordered that four subpoenas duces tecum be served on four different banks, requiring the banks to produce certain financial records of the plaintiffs. On May 16, 1990, the plaintiffs’ separately filed applications to quash the subpoenas. The plaintiffs challenged the subpoenas in accordance with General Statutes § 36-9Í, which gives bank customers the right to file an application to quash a subpoena served on the customer’s bank.4 After a short trial, the court granted the plaintiffs’ motions to quash because of certain defects in the service of the subpoenas. The commissioner appealed the decision of the trial court, and the Supreme Court reversed the granting of the plaintiffs’ motions to quash on June 18,1991, in Morgan v. Brown, supra. On July 31, 1991, the trial court dismissed the applications to quash in accordance with the Supreme Court decision.

On July 19,1991, each plaintiff filed a second application to quash the subpoenas. The trial court dismissed the second applications to quash as untimely in November, 1991. The plaintiffs appeal from the trial court’s dismissal of the second applications, contending that they were indeed timely.

[656]*656Despite the plaintiffs’ claim that their second applications were timely, and that their cause of action was preserved by General Statutes § 52-592 (a), the dismissal of the first applications was a judgment on the merits, and, therefore, the plaintiffs’ second applications were barred by the doctrine of res judicata.

Res judicata is a doctrine grounded in public policy. Its primary function is to prevent the relitigation of issues already decided in a court of competent jurisdiction. Dunham v. Dunham, 221 Conn. 384, 391, 604 A.2d 347 (1992); In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983); Corey v. Avco Lycoming Division, 163 Conn. 309, 316-17, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); Brady v. Anderson, 110 Conn. 432, 435, 148 A. 365 (1930). The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action that were actually made or that might have been made. Gagne v. Norton, 189 Conn. 29, 32, 453 A.2d 1162 (1983).

Connecticut’s res judicata rules are derived from the theory of merger and the transactional test set out in the Restatement (Second) of Judgments. Dunham v. Dunham, supra, 392-93 n.10; Vakalis v. Kagan, 18 Conn. App. 363, 557 A.2d 1285 (1989). Merger, or the extinguishing of the plaintiffs’ original claims through the rendering of final judgment, has its roots in early case law. Fisher, Brown & Co. v. Fielding, 67 Conn. 91, 118-19, 34 A. 714 (1895) (Hammersley, J., dissenting). “When the plaintiff recovers a valid and final personal judgment, his original claim is extinguished and rights upon the judgment are substituted for it. The plaintiff’s original claim is said to be ‘merged’ in the judgment.” 1 Restatement (Second), Judgments § 18.

[657]*657“The transactional test measures the preclusive effect of a prior judgment, which includes any claims relating to the cause of action that were actually made or might have been made.” Vakalis v. Kagan, supra, 367. A cause of action for the purpose of the transactional test is “ ‘the group of facts which is claimed to have brought about an unlawful injury to the plaintiff; Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 197, 91 A.2d 778 (1952) . . . .” Dunham v. Dunham, supra.

The present case presents a clear example of the type of relitigation that the doctrine of res judicata is designed to prevent. In May, 1990, the plaintiffs brought their first applications to quash the subpoenas on the following six grounds:

“A. The attempted service of the subpoenas did not comply with the requirements of the statutes and other legal authority governing said service.
“B. The respondent attempted to induce the . . . banks to provide financial records in violation of the governing statutory provisions.
“C. The respondent attempted service of said subpoenas while concurrently proceeding with his appeal of a prior pending action involving the same facts and circumstances.
“D. Compliance with said subpoenas would violate the applicant’s right of privacy and his rights under the 4th, 5th, and 14th amendments of the United States Constitution, as well as provisions of the Connecticut Constitution.
“E. The attempted service of said subpoenas is intended to harass the applicant.
“F. The disclosure sought is overbroad, unnecessarily burdensome, irrelevant, immaterial and not calculated to lead to the discovery of relevant or material information.”

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Cite This Page — Counsel Stack

Bluebook (online)
611 A.2d 930, 28 Conn. App. 653, 1992 Conn. App. LEXIS 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/legassey-v-shulansky-connappct-1992.