Southport Manor Convalescent Center, Inc. v. Foley

568 A.2d 795, 213 Conn. 811, 1990 Conn. LEXIS 18

• Court: Supreme Court of Connecticut
• Decided: January 2, 1990
• Status: Published

Opinion

The plaintiffs Southport Manor Convalescent Center, Inc., and Albert A. Garofalo’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 223, is granted, limited to the following issues:

Dwight F. Fanton, James T. Shearin and Dion W. Moore, in support of the petition. James G. Green, Jr., in opposition. Decided January 2, 1990

“1. Did the Appellate Court err in concluding that a prior dismissal of a suit raising the same claims as those asserted in the present action had resulted in a judgment having ‘the same effect as if the case had been tried on the merits’ (20 Conn. App. 223, 228) for the purpose of invoking the defense of res judicata, when the dismissal of the prior suit was based upon a motion to dismiss for improper venue and the pen-dency of a prior action, to the granting of which the plaintiff was deemed to have consented because of its failure to file a memorandum opposing the motion within the time allowed by Practice Book § 143?

“2. Did the Appellate Court err in affirming a judgment of dismissal based upon the defense of res judicata when Practice Book § 164 expressly includes such a defense among those to be specially pleaded?”