239 Conn. 375 | Conn. | 1996
The dispositive issue of this certified appeal is whether a definite, unappealed sanctions order by a trial judge, addressed to an attorney and based on the attorney’s bad faith pleading, is a final judgment for purposes of res judicata and, therefore, precludes a subsequent trial judge in the same case from vacating that order. Following our grant of certification to appeal, the sanctioned attorney, John Timbers, appealed
Judge Holzberg aptly described the case as a “legal quagmire” out of which has grown “a tangled thicket of motions, claims and counterclaims.” The following are the pertinent facts and procedural history, gleaned from a record that includes seven thick manila trial court folders.
The plaintiff is CFM of Connecticut, Inc. (CFM). The defendants are Taufiqul Chowdhury, 5 C’s Corporation (5 C’s), a partnership known as 294 Farmington Realty (294 Farmington) whose trade name is Sielev Associates (Sielev), and Barry L. Siegal. Chowdhury owns the stock of 5 C’s, and Siegal is a partner in 294 Farmington. CFM is in the business of franchising mini-marts under the name of Express Marts. In November, 1988, CFM entered into a franchise agreement with Chowdhury and 5 C’s for the operation of an Express Mart at 302
In April, 1989, 294 Farmington brought a summary process action against CFM for nonpayment of rent. CFM was defaulted for failure to appear for trial in that action, and that judgment was sustained on appeal.
In August, 1989, CFM, represented by Timbers, brought this action in the Hartford judicial district claiming that Chowdhury had breached the franchise agreement, and that Chowdhury, 294 Farmington and Siegal had unlawfully conspired to evict CFM. In connection with this action, CFM filed a motion for a preliminary injunction and a motion for a prejudgment remedy, which were heard before Judge Susco on February 28, March 1 and 2, May 10, 11 and 29, 1990, with additional hearing dates scheduled for August 9, 16 and 17, 1990. After the fourth hearing day, CFM filed a motion to add two other parties as plaintiffs, namely, TM of Connecticut, Inc. (TM), and Total Food Mart Corporation, and also filed a request to amend its complaint by adding six additional counts. This motion and request were heard before Judge Susco on July 17, and a decision on them was pending when, on August 3, CFM filed a motion for recusal or disqualification of Judge Susco for alleged bias, and for a mistrial on CFM’s pending motions for a preliminary injunction and a prejudgment remedy.
The filing of this motion necessitated the postponement of the scheduled August 9 hearing before Judge Susco.
In support of this motion, Chowdhury and 5 C’s alleged that the withdrawal was a “blatant, last ditch attempt [by CFM] to forum shop in order to relitigate [in the Windham judicial district] its motion for aprelim
In response to this motion, CFM filed, on August 24, a “cross motion for sanctions and other relief,” and on August 30, an amended version of the same motion. In the amended motion, CFM moved for sanctions against Chowdhury and 5 C’s on the ground that their motion for sanctions had been made in bad faith, without color, and for reasons of harassment. CFM also represented
Thereafter, Judge Susco ruled on these motions and cross motions. She granted Chowdhury’s motion for sanctions and assessed $10,000 in attorney’s fees against both CFM and Timbers.
Meanwhile, further legal maneuvering was taking place. In February, 1990, James F. Schmidt and Janice Schmidt, who owned all of the 1000 outstanding shares
Although the Schmidts had owned all of the issued shares of CFM, they had not owned all of the authorized shares. In fact, there were 4000 additional authorized shares. On July 23,1991, one day before the bankruptcy auction
Thus, there was a dispute over the ownership and control of CFM between, on the one hand, 294 Farmington and Siegal, who were represented by Tarlow, and, on the other hand, Feigenbaum, Cote, and TM, who were represented by Timbers. Consequently, on August 2, 1991, Timbers filed a motion to strike both
Thereafter, on January 6, 1992, Tarlow, on behalf of 294 Farmington, filed an “Application for Quo Warranto and a Determination of Interests,” requesting a ruling that 294 Farmington was the sole shareholder of CFM. On January 15, 1992, Timbers withdrew his motion to strike the appearance and withdrawal of action that Tarlow had filed. On January 27, 1992, Chowdhury moved to hold Timbers in contempt for failure to pay Chowdhury both the $3251 in attorney’s fees ordered by Judge Miaño, and the $10,000 in attorney’s fees ordered by Judge Susco. Both the application for quo warranto and the motion for contempt came before Judge Holzberg for hearing in July, 1992.
At this hearing, Timbers claimed that because Tarlow had withdrawn the case and he was no longer objecting to that withdrawal, there was no longer any case before the court. He argued, therefore, that in the absence of an antecedent motion to restore the case to the docket, the court had no jurisdiction to take further action in the case, with respect to either the application for quo warranto or the motion for contempt.
With respect to the application for quo warranto, Judge Holzberg noted that Timbers refused “to concede
Judge Holzberg then observed: “The court, therefore, is faced with the curious situation of both parties agreeing that the withdrawal filed by [Tarlow] on behalf of CFM is valid, but disagreeing as to who owns the stock of CFM and who is its duly authorized attorney. Although superficially this would appear to render the case moot, the court will determine who is the rightful owner of the stock of CFM and, therefore, whose appearance should be recognized by the court because of its conclusion that all other issues in this case are subordinate to and dependent on a resolution of the question of which person or persons own the stock of CFM and which counsel represents CFM. Failure to answer those questions will invite this litigation to proceed in perpetuo.”
Relying on the court’s inherent power to take all steps that are reasonably necessary for the administration of justice, including the powers to fashion remedies to enforce its judgments and to impose sanctions in order to enforce its orders, Judge Holzberg proceeded to adjudicate the matters before him. With respect to 294 Farmington’s application for quo warranto, he determined that (1) 294 Farmington was the sole shareholder of CFM, (2) the appearance and withdrawal filed by Tar-low were valid, and (3) the action was no longer pending and was deemed terminated by virtue of the withdrawal filed on July 29, 1991, by Tarlow. He also determined that the purported assignment of the cause of action
With respect to Chowdhury’s motion for contempt, Judge Holzberg made a bifurcated determination. Regarding Judge Miano’s order, he ordered Timbers to appear before him for an evidentiary hearing to show cause why he should not be held in contempt for refusing to comply. Regarding Judge Susco’s order, Judge Holzberg determined that, because no hearing had been held in support of the motion for sanctions, the order should be vacated.
Timbers, purporting to act on behalf of CFM and, implicitly, on his own behalf,
The Appellate Court dismissed CFM’s and Timbers’ appeal “on the grounds of untimeliness pursuant to Practice Book § 4009
I
We first address the question of who and what are properly before us. We conclude that only the propriety of Judge Holzberg’s conclusion regarding Judge Susco’s order, insofar as it applies to Timbers personally rather than to CFM, is before us.
Judge Holzberg decided that 294 Farmington, and not Feigenbaum and Cote, owned CFM, and that, therefore, Tarlow, rather than Timbers, represented CFM. The propriety of those determinations was involved only in CFM’S appeal, which was ultimately dismissed, and not in Chowdhury’s cross appeal. Therefore, those determinations must stand for purposes of this appeal to this
We consider this appeal, therefore, as involving only a sanctions order issued against an attorney by one trial judge that was subsequently vacated by another trial judge. We turn next to the merits of Timbers’ appeal from the judgment of the Appellate Court.
II
Timbers makes three claims: (1) once the case was withdrawn, the trial court had no jurisdiction to take further action in the case, including considering Chowdhury’s motion for contempt;
We first consider Timbers’ jurisdictional challenge. Relying on Lusas v. St. Patrick’s Roman Catholic Church Corp., 123 Conn. 166, 193 A. 204 (1937), he argues that Judge Holzberg had no jurisdiction over the parties to act further in the case once Tarlow had filed a withdrawal of the casein July, 1991. Timbers contends that, because by the time Chowdhury’s motion for contempt came before Judge Holzberg in July, 1992, Timbers had withdrawn his objection to that withdrawal, and because no motion to restore the case to the docket had been filed or granted, the court had no jurisdiction. We are unpersuaded.
In Lusas, we considered an appeal from an order of the trial court restoring to the docket, on the motion of one party, a case that had been withdrawn jointly by both parties. Id., 167. We first addressed whether the trial court had jurisdiction over the parties to restore the case to the docket. This court stated that when a case has been voluntarily withdrawn, although the case “has not gone entirely beyond the jurisdiction of the court to act in it”; id., 170; the court is without jurisdiction to act in the case unless it has been first restored to the docket pursuant to a motion, the parties have stipulated to its restoration, or there has been a waiver, express or implied, of any objection to the court’s acting in the case. Id., 170-72. We conclude that Lusas does not require a conclusion that Judge Holzberg lacked personal jurisdiction over Timbers to consider Chowdhury’s motion for contempt.
First, to the extent that Lusas requires an antecedent motion to restore a case to the docket in order for the court to reassert jurisdiction over the parties before taking further action with regard to their case, we do not think the same rule should apply to the sanctions order levied against Timbers by Judge Susco. He was
Chowdhury was the party for whose benefit the sanctions order against Timbers operated. The withdrawal of the case by CFM could not benefit Timbers personally to the detriment of Chowdhury. A different conclusion would give too great an incentive to an attorney who has been sanctioned for bad faith pleading to avoid the sanction by 'withdrawing the underlying action before it is sought to be enforced.
Judge Holzberg had before him two matters. The first was the application by Tarlow for quo warranto, seeking a determination of the proper ownership of the stock of CFM. That was an issue that had already surfaced significantly in the case and that, according to Timbers’ own representation, would reappear in a subsequent action that Timbers assured Judge Holzberg he intended to file. Indeed, this issue would be determinative of whether Timbers had the authority to file the subsequent action at all, and would, therefore, determine whether this incredibly prolix course of litigation would continue or cease. The second matter was Chowdhury’s motion for contempt for Timbers’ failure to comply with Judge Susco’s and Judge Miaño’s sanctions orders.
It is clear from Judge Holzberg’s opinion that he considered it necessary to the due administration of justice that he decide all of these issues. It is also clear from this record that, had he been formally presented with a motion to restore the case to the docket, he would have exercised his discretion to grant that motion as a precursor to his assumption of jurisdiction over the parties and Timbers in order to accomplish that necessity. He was confronted with a case that had already consumed heroic amounts of resources of the judiciary, the parties and their counsel. Although now formally withdrawn, the validity of that withdrawal depended on the resolution of the question of who represented CFM — a question that Timbers in effect promised Judge Holzberg would surface again quickly upon Timbers’ contemplated new action and would, therefore, con
To read the record any other way would be to blink at reality. Under the unique circumstances of this case, therefore, Judge Holzberg’s action on the motions that were before him must be deemed to be the equivalent of restoring the case to the docket for the purpose of exercising the court’s inherent powers to enforce its orders and to provide for the due administration of justice.
Moreover, Timbers has not been prejudiced in any concrete way by this reading of the record. He had full opportunity before Judge Holzberg to object to the court’s assumption of jurisdiction over him and to argue the merits of Chowdhury’s attempt to enforce Judge Susco’s order.
B
Timbers also claims that Judge Holzberg’s judgment vacating Judge Susco’s sanctions order was correct because, contrary to the Appellate Court’s conclusion, General Statutes § 52-212aand Practice Book § 326; see footnotes 15 and 16; did not preclude Judge Holzberg from vacating the sanctions order. Chowdhury responds that: (1) as he argued in the Appellate Court, Judge Holzberg improperly vacated Judge Susco’s order under principles of res judicata; and (2) in the alternative, the Appellate Court was correct in its analysis of the case under § 52-212a and § 326. We need not consider his second claim, however, because we agree with Chowdhury that the propriety of Judge Holzberg’s judg
1
We first consider the nature of Judge Susco’s order. That order was entered under the authority of Fattibene v. Kealey, 18 Conn. App. 344, 558 A.2d 677 (1989). We agree with the conclusion of the Appellate Court in Fattibene, which Timbers does not challenge, that, subject to certain limitations, a trial court in this state “has the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct,” even in the absence of a specific rule or order of the court that is claimed to have been violated. Id., 359-60. We also agree with the general principles stated by the Appellate Court in Fattibene.
As a procedural matter, before imposing any such sanctions, the court must afford the sanctioned party or attorney “a proper hearing on the . . . motion” for sanctions. Id., 352. There must be “fair notice and an opportunity for a hearing on the record.” (Internal quotation marks omitted.) Id., 353. This limitation, like the substantive limitations stated in the following discussion, is “particularly appropriate with respect to a claim of bad faith or frivolous pleading by an attorney, which implicates his professional reputation.” Id.
As a substantive matter, “[t]his state follows the general rule that, except as provided by statute or in certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975); Ernst Steel Corporation v.
“We agree, furthermore, with certain principles articulated by the Second Circuit Court of Appeals in determining whether the bad faith exception applies. To ensure . . . that fear of an award of attorneys’ fees against them will not deter persons with colorable claims from pursuing those claims, we have declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes . . . and a high degree of specificity in the factual findings of [the] lower courts. (Citations omitted.) Dow Chemical Pacific Ltd. v. Rascator Maritime S.A., supra, [782 F.2d 344], quoting Weinberger v. Kendrick, 698 F. 2d 61, 80 (2d Cir. 1982). Whether a claim is color-
Had Timbers sought to appeal from Judge Susco’s order or, as he did with respect to Judge Miano’s order, had he challenged it by further trial court proceedings; see footnote 3; he could have argued that the order was flawed for failure to observe these procedural and substantive limitations. The fact that a prior judicial determination may be flawed, however, is ordinarily insufficient, in and of itself, to overcome a claim that otherwise applicable principles of res judicata preclude it from being collaterally attacked. See Gennarini Construction Co. v. Messina Painting & Decorating Co., 15 Conn. App. 504, 512, 545 A.2d 579 (1988). The general rules of res judicata, although not jurisdictional in nature; see Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994); “are applicable to a valid . . . and final . . . judgment, even if it is erroneous and subject to reversal. If the judgment is erroneous, the unsuccessful party’s remedy is to have it set aside or reversed in the original proceedings. Such a remedy
2
Timbers and Chowdhury do not disagree about the general principles of res judicata. The term “res judicata” is often used generically to refer to the general concept of former adjudication, namely, that once a question has been finally and authoritatively decided it should not be relitigated. See, e.g.,Advest, Inc. v. Wachtel, 235 Conn. 559, 565, 668 A.2d 367 (1995). Although the term “res judicata” also has a more specific meaning, which differentiates it from “issue preclusion,”
Chowdhury asserts that Judge Susco’s order was a final judgment for purposes of res judicata because it fits within the standards for such a judgment. Timbers contends that it was not such a final judgment because: (1) res judicata does not operate within the same case, as opposed to a separate, subsequent action; and (2) the order “was not a final judgment ending the case in the trial court.” Thus, Timbers argues, Judge Susco’s order falls within the doctrine of the law of the case, rather than res judicata, and was not binding on Judge Holzberg. We agree with Chowdhury.
As Timbers’ argument suggests, ordinarily the doctrine of res judicata operates to preclude the relitigation in one action of a claim or issue that has been determined in a previous, separate action. See, e.g., Advest, Inc. v. Wachtel, supra, 235 Conn. 565-66; Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 713, 627 A.2d 374 (1993). This does not mean, however, that the doctrine cannot operate within the same case.
“A judgment may be final in a res judicata sense as to a part of an action although litigation continues as to the rest. 1 Restatement (Second), [supra] § 13, comment (e).” State v. Aillon, 189 Conn. 416, 425, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983). In Aillon, we applied the doctrine to bar the relitigation of the defendant’s double jeopardy claim, which had been decided adversely to him on a somewhat different theoiy at an earlier stage of the criminal
As these cases suggest, one of the critical factors in determining whether a judicial determination is a final judgment for purposes of res judicata is whether it is also a final judgment for purposes of appeal. Although the standards for the two forms of finality are not necessarily congruent; State v. Aillon, supra, 189 Conn. 425; 1 Restatement (Second), supra, § 13, comment (b); that does not mean that finality for purposes of appeal will never constitute finality for purposes of preclusion.
Thus, the Restatement provides that, although certain interlocutory appellate mechanisms may not provide finality for purposes of res judicata, the traditional standard of finality for purposes of appeal will generally also provide the standard of finality for purposes of preclusion. 1 Restatement (Second), supra, § 13, comment (b). Thus, for purposes of res judicata, a judgment
State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), provides the standard by which to gauge the finality, for purposes of appeal, of an order like that of Judge Susco. “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id., 31. This doctrine “is not an exception to but simply an application of the final judgment rule embodied in [General Statutes] § 52-263. ”
Applying those principles to the facts of this case, we conclude that Judge Susco’s sanctions order against Timbers was a final judgment for purposes of res judicata because it so concluded the rights of Chowdhury and Timbers that further proceedings could not affect them. The order required Timbers to pay Chowdhury $10,000 by a certain date. That order was not dependent on further proceedings in the underlying action between CFM and Chowdhury and 5 C’s, because this sum was due and owing by Timbers to Chowdhury irrespective of any further proceedings in that action and irrespective of its eventual outcome. The parties to that order were Timbers and Chowdhury. Their rights, and concomitant obligations, were, with respect to Timbers, to pay the sum ordered, and, with respect to Chowdhury, to receive the payment. No further proceedings could affect those rights and obligations.
Indeed, compliance with the order would have required Timbers to pay the sum ordered to Chowdhury. It is difficult to see how there can be anything less than final about the payment of money by an attorney to his client’s adversary. In this respect, such an order is akin to an order of temporary alimony or child support in a marital dissolution case, which has long been considered a final judgment for purposes of appeal. See, e.g., Bryant v. Bryant, 228 Conn. 630, 636, 637 A.2d 1111 (1994).
Strong policy considerations also support the conclusion that a sanctions order is a final judgment for purposes of appeal and, therefore, res judicata. An outstanding sanctions order against an attorney in a case that has yet to run its course could very well have deleterious effects on efforts to settle the case. It carries a significant risk of placing the attorney in a potential conflict of interest in negotiating a settlement, because if the sanctions order “is linked to settlement negotiations, [the] lawyer may be placed in an ethical dilemma; his view of any settlement proposal would almost certainly be colored by its handling of the attomeyfs] fee issue.” Cheng v. GAF Corp., 713 F.2d 886, 889-90 (2d Cir. 1983) (sanctions order of attorney’s fees imposed on litigant’s attorney appealable under collateral order doctrine).
Furthermore, although the appellate final judgment rule is based partly on the policy against piecemeal
This discussion highlights the dividing line between the general doctrines of res judicata, relied on by Chowdhury, and the law of the case, relied on by Timbers, insofar as this case is concerned. Whereas a decision of one trial judge that is res judicata is binding on the second judge who confronts it, a decision of one trial judge that declares the law of the case is not a limitation on the power of the second judge in the case to decide otherwise, under appropriate circumstances. Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). The dividing line is not, however, as Timbers argues, whether the two decisions are made in the same or different actions; the dividing line is in the nature of the first decision.
If the first decision was final, in the res judicata sense, it cannot be disregarded under the doctrine of the law of the case. If, however, the first decision was not final, but was merely interlocutory, it falls within the doctrine of the law of the case. We strongly suggested as much
One final matter remains for consideration. The rescript of the Appellate Court in this case provided that the “portion of the judgment vacating the August 31,1990 sanctions order is reversed.” CFM of Connecticut, Inc. v. Chowdhury, supra, 38 Conn. App. 750. Judge Holzberg did not rule, on the merits of Chowdhury’s motion for contempt, however, because of his ruling that Judge Susco’s order was invalid. The Appellate Court’s rescript, although correct insofar as it went, was incomplete because it did not remand the case to the trial court for further proceedings on Chowdhury’s motion to hold Timbers in contempt of court. We, therefore, supply that omission.
The judgment of the Appellate Court is affirmed and the case is remanded to that court with direction to remand it to the trial court for further proceedings on Chowdhury’s motion for contempt of court.
In this opinion the other justices concurred.
Although Timbers purports to present this appeal on behalf of both himself and the plaintiff, CFM of Connecticut, Inc., as we explain in part I
We granted certification limited to the following issue: “Under the circumstances of this case, did the Appellate Court properly conclude that, on March 18,1993, the trial court, Holzberg, J., lacked jurisdiction to vacate the contempt order of the trial court, Susco, J., dated August 31, 1990?” CFM of Connecticut, Inc. v. Chowdhury, 235 Conn. 933, 667 A.2d 1270 (1995). As we explain in part II of this opinion, this question is inaccurately phrased in two respects. First, under our view of the case, the flaw in Judge Holzberg’s judgment is not jurisdictional. Second, Judge Susco’s order was not an order of contempt, but rather, was a sanctions order for bad faith pleading. We nonetheless affirm the judgment of the Appellate Court, albeit on grounds different from those on which it relied.
CFM’s motion for recusal, disqualification and a mistrial was heard by Judge Miaño on August 10, 1990. Judge Miaño denied CFM’s motion on August 31 and, in response to Chowdhury’s request in opposition to the motion, awarded Chowdhury attorney’s fees in the amount of $3251 for bad faith pleading, to be paid by December 31,1990. After unsuccessfully seeking
In addition, as part of the same motion, Chowdhury and 5 C’s moved to disqualify Timbers from continuing to represent CFM on grounds involving certain affidavits that Timbers had filed.
As far as we can see, this representation and motion sought to postpone the completion of the hearing and the decision on the issues that the parties had already spent six days litigating before Judge Susco.
Judge Susco also denied without prejudice the motion to disqualify Timbers from continuing to represent CFM. See footnote 4. Although Judge Susco's sanctions order was in favor of both Chowdhury and 5 C’s, the parties and the Appellate Court have treated it as benefiting only Chowdhury. We, therefore, do the same, and consider only Chowdhury as the appellee in this appeal.
By contrast, however, on December 26,1990, CFM moved for reaxgument and vacating of Judge Miano’s orders awarding sanctions against CFM and Timbers and claimed in support of that motion that no hearing had been held prior to the sanctions order. See footnote 3.
The record does not disclose whether the bankruptcy trustee knew of the additional 4000 authorized shares.
In 1989, Feigenbaum, Cote and the Schmidts had formed a joint venture, namely, TM, which took by assignment CFM’s interest in its franchise agreements and trademark. Thus, although CFM had been the nominal franchisor of the Express Mart located on 294 Farmington’s property, the beneficial owners of the franchise were TM and its shareholders, namely, Feigenbaum, Cote and the Schmidts. Timbers was counsel to both CFM and TM during this entire period.
We also note that despite Timbers’ representation to us during oral argument that the lack oí a hearing before Judge Susco was argued before Judge Holzberg, we can find no support for such a representation, either in the transcript or in CFM’s and Timbers’ trial brief filed in connection with that proceeding.
The record is unclear regarding (1) the precise date of Judge Susco’s sanctions order, and (2) whether Judge Susco had held a hearing on Chowdhury’s motion for sanctions. With respect to the date, the record discloses both a “Revised Judgment,” dated August 31, 1990, but filed on September 9, 1990, and a notice from the clerk to the parties and counsel, dated September 11, 1990. With respect to the hearing, although Judge Holzberg stated in his decision that Judge Susco had not held such a hearing, Judge Susco’s August 31, 1990 revised .judgment, after referring to the motion for sanctions, states: “On August 31,1990, this court, having heard the parties, finds that Chowdhury’s motion for sanctions should be and the same is granted. CFM and Attorney Timbers personally are ordered to pay attorneys fees of S10,000 to Chowdhury.” (Emphasis added.)
Moreover, insofar as the record indicates, at no time did either CFM or Timbers request Judge Holzberg to vacate Judge Susco’s order for reasons having to do with tire merits — either procedural or substantive — of that order. Rather, they objected to the motion for contempt on the ground that the withdrawal of the action by CFM had deprived Judge Holzberg of jurisdiction to act on the motion for contempt, and requested, somewhat anomalously, that Judge Holzberg “vacate” Judge Susco’s order on the basis of the same withdrawal. In our view, however, it is not necessary to resolve these procedural questions, because Chowdhury does not claim that Judge Holzberg’s judgment was flawed for lack of a request to vacate and because we have concluded that principles of res judicata prevented Judge Holzberg from revisiting the validity of Judge Susco’s order.
The appeal filed by Timbers noted only CFM as the appellant and did not name himself as an appellant as well. Despite this technical defect, however, it is apparent from the preliminary statement of issues filed with the appeal that he also intended 1o challenge the order of Judge Miaño imposing sanctions on him personally. Chowdhury has never disputed this characterization of the appeal.
Practice Book § 4013 provides in relevant part: “ — Additional Papers To Be Filed By Appellant and Appellee
“(a) At the time the appellant sends a copy of the endorsed appeal form and the docket sheet to the appellate clerk, the appellant shall also send the appellate clerk an original and one copy of the following:
“(1) A preliminary statement of the issues intended for presentation on appeal. . . .”
At all times pertinent to this appeal, Practice Book § 4009 provided in relevant part: “Time to Appeal
“The party appealing shall, within twenty days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal in the manner prescribed by Sec. 4012 . . . .”
General Statutes § 52-212a provides: “Civil judgment or decree reopened or set aside within four months only. Unless otherwise provided by law and
At all limes pertinent to this appeal, Practice Book § 326 provided in relevant part: “Setting Aside or Opening Judgments
“Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parlies may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court. ...”
In this connection, Timbers also claims — curiously, but candidly — that this withdrawal also deprived the trial court of jurisdiction to vacate Judge Susco’s sanctions order.
These conclusions render it unnecessary to consider the applicability of § 52-212a or of any exceptions to its applicability.
We recognize that as Lusas v. St. Patrick’s Roman Catholic Church Corp., supra, 123 Conn. 169, suggests with respect to parties to a withdrawn action, principles of finality and repose may require some time limit on when, after the underlying case has been withdrawn, a court may nonetheless continue to exert personal jurisdiction over a sanctioned attorney in order to compel him to comply with a sanctions order. We need not address that question in this case, however, because Chowdhury’s motion for contempt was filed on January 27, 1992, just twelve days after Timbers withdrew his objection to Tarlow’s withdrawal of the action. The earliest date on which Timbers could even arguably have considered the case to have been effectively withdrawn was the date on which he withdrew his objection to the withdrawal. Thus, even under that scenario, Timbers was promptly put on notice that Chowdhury was attempting to enforce Judge Susco’s sanctions order.
The prerequisites of a valid, as opposed to a final, judgment for purposes of res judicata involve whether the court had subject matter and personal jurisdiction and whether there had been adequate notice. See 1 Restatement (Second), supra, § 1. Timbers does not claim any flaw in Judge Susco’s order on these bases.
“[T]he terms res judicata and collateral estoppel refer to the concepts of claim preclusion or issue preclusion respectively. Both claim preclusion and issue preclusion express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest. State v. Ellis, 197 Conn. 436, 465, 497 A.2d 974 (1985). Although claim preclusion and issue preclusion often appear to merge into one another in practice, analytically they are regarded as distinct. [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. . . . [I]ssue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit. Scalzo v. Danbury, 224 Conn. 124, 128, 617 A.2d 440 (1992); see also Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 303-304, 596 A.2d 414 (1991).” (Internal quotation marks omitted.) Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 712-13, 627 A.2d 374 (1993).
General Statutes § 52-263 provides: “Appeals from superior court. Exceptions. Upon the trial of all matters of fact in any cause or action in the superior court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and
Timbers argues that Judge Susco’s order was not appealable under Curdo because “CFM only withdrew [its motion for a preliminary injunction] pending Judge Susco’s decision of the then-pending motions (to join additional parties and objections to CFM’s request to amend its complaint). It was always CFM’s intention that the withdrawn Motion be completed and decided after decision of the then-pending motions. The propriety of the sanctions in the August 31, 1990 [o]rder could only be decided after the withdrawn Motion was complete and decided. Therefore, it would have been premature to taire an appeal immediately after August 31, 1990, since all the facts pertinent to the sanctions mandated by that order had not been developed.” This argument is without merit.
First, Timbers does not explain how some unexpressed intention on the part of a party or its attorney — purportedly to complete litigation on the withdrawn motion for preliminary injunction — can affect the legal determination of whether Judge Susco’s order was a final judgment under Curcio.
The Appellate Court has properly recognized the analytical difference between a sanctions order and the case in which it is entered. In Fattibene, the Appellate Court originally had before it an appeal from the judgment in the underlying case and from the sanctions order that had been entered in the course of that case. See Fattibene v. Kealey, 12 Conn. App. 212, 530 A.2d 206 (1987). The court reviewed the underlying judgment but dismissed the appeal regarding the sanctions order because, lacking the amount of the fees to be paid, the sanctions order was not final. Id., 216. Thereafter, the trial court amended the order by setting an amount, and the second Fattibene appeal ensued. See Fattibene v. Kealey, supra, 18 Conn. App. 344.
The sanctions order in this case is different, however, from an order appointing a receiver of rents in a mortgage foreclosure case, which is not a final judgment for appellate purposes. New England Savings Bank v. Nicotra, 230 Conn. 136, 139, 644 A.2d 909 (1994). Such an order is not appealable because, although it temporarily takes from the mortgagor its right to collect and use the rents while tire case is being litigated, the funds are maintained in the control not of the adverse party, but of the court,
