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DOCKET NO. UWY-X06-CV17-5023922-S : SUPERIOR COURT
JAMES E. BARBARA and : JUDICIAL DISTRICT OF
: WATERBURY
LINA T. BARBARA : COMPLEX LITIGATION DOCKET
v. : AT WATERBURY
COLONIAL SURETY COMPANY : JANUARY 19, 2024
MEMORANDUM IN SUPPORT OF DEFENDANT
COLONIAL SURETY COMPANY’S MOTION FOR SUMMARY JUDGMENT
Pursuant to P.B. §§ 17-44 et seq., the Defendant, Colonial Surety Company,
submits this Memorandum of Law in support of its Motion for Summary Judgment as
to all four counts of the Revised Complaint. There are no genuine issues of material
fact in this case in light of this Court’s judgment in Colonial Surety v. Phoenix, Docket
No. UWY-CV-106045128 (“Indemnity Action”), and the Appellate Court’s affirmance of
that judgment in Barbara v. Colonial Surety Co., 221 Conn. App. 337 (2023).1 As the
Appellate Court noted, “because the Barbaras’ bad faith claims were litigated and decided
adversely to the Barbaras in the indemnity action, on remand, Colonial may move for
summary judgment in the Barbaras’ action on the basis of the preclusive effect of the
judgment in the indemnity action.” Barbara, 221 Conn. App. at 386 n. 26. The claims set
forth in all four counts of the Revised Complaint are precluded by res judicata and/or
1 In order to make it clear which action is being cited, where this Memorandum refers to
Colonial Surety v. Phoenix, Docket No. UWY-CV-106045128 (“Indemnity Action”), the
citation will be to Colonial Surety, with applicable docket citations. This Memorandum will
refer to the Appellate Court’s decision as Barbara, with the full citation to 221 Conn. App.
References to this matter will refer to Barbara v. Colonial Surety, with applicable docket
citations.
1
collateral estoppel.2
I. Statement of Facts and Proceedings
A. Underlying Facts
Plaintiffs James and Lina Barbara (“the Barbaras”) are the owners of Phoenix
Contracting Company (“Phoenix”). Barbara, 221 Conn. App. at 341. Defendant Colonial
Surety Company (“Colonial”) “is a commercial surety company that issues payment and
performance bonds on behalf of contractors and subcontractors for construction projects.”
Barbara, 221 Conn. App. at 342.
In 2007, Phoenix entered into a subcontract with Gotham Greenwich Construction
Co., LLC (“Gotham”) to provide and install window walls for a hotel project in New York.
Barbara, 221 Conn. App. at 340-42. On May 1, 2008, the Barbaras and Phoenix executed
a General Indemnity Agreement (the “Indemnity Agreement”) in favor of Colonial.
Barbara, 221 Conn. App. at 342. On May 20, 2008, Colonial issued performance and
payment bonds on behalf of Phoenix to Gotham. Barbara, 221 Conn. App. at 342.
Pursuant to the indemnity agreement, Phoenix and the Barbaras (1)
agreed to indemnify Colonial for any losses that Colonial might incur from
issuing the Gotham bonds on behalf of Phoenix, (2) granted Colonial the
authority to settle any claims on the Gotham bonds and assigned to Colonial
all their rights in and to the subcontract, and (3) appointed Colonial as their
attorney-in-fact “with the right but not the obligation, to exercise all of the
rights assigned” to Colonial in the indemnity agreement.
Barbara, 221 Conn. App. at 343. See also Barbara, 221 Conn. App. at 343 n. 6.
In the present case, the indemnity agreement includes the following
right-to-settle and prima facie evidence provisions: “[Colonial] shall have the
2For the convenience of the Court, Colonial has attached the trial court’s decision in
Colonial Surety (Ex. A) and the Appellate Court decision (Ex. B). “Section 17-45 does
not mandate that an affidavit be attached in all cases. In this case, an affidavit was not
necessary because the relevant facts were not being challenged and already were
available to the court.” Davis v. Family Dollar Store, 78 Conn. App. 235, 238 n.3 (2003).
2
right in its sole discretion to determine whether any claims should be paid,
compromised, defended, prosecuted or appealed. . . . [Colonial] shall have
the right to incur such expenses in handling such a claim as it deems
necessary or advisable . . . and [Colonial’s] good faith determination as to
the necessity or advisability of any such expense shall be final and
conclusive upon Indemnitor. [Colonial] shall have the foregoing rights,
irrespective of the fact that Indemnitor may have assumed, or offered to
assume, the defense of [Colonial] upon such claim. . . . In any claim or suit
hereunder, an itemized statement of the aforesaid loss and expense, sworn
to by an office of [Colonial], or the vouchers or other evidence of
disbursement by [Colonial], shall be prima facie evidence of the fact and
extent of the liability hereunder of Indemnitor.
Barbara, 221 Conn. App. at 360.
Phoenix began work on the hotel project but from the start there were issues which
ultimately resulted in litigation. Barbara, 221 Conn. App. at 344-45.
The general contractor of the hotel project made claims on the bonds
against Colonial in New York based on Phoenix’s alleged failure to perform
(New York action), and Colonial brought an action against Phoenix and the
Barbaras in Connecticut to enforce the indemnity agreement (indemnity
action). Colonial ultimately settled all claims in the New York action over
Phoenix’s objection, and the Barbaras brought an action against Colonial in
Connecticut, asserting breach of contract and bad faith claims against
Colonial in connection with its handling of the New York action and seeking
to invalidate the indemnity agreement (Barbaras’ action).
Barbara, 221 Conn. App. at 341. This matter is the Barbaras’ action.
B. The Indemnity Action
In the Indemnity Action, Colonial moved for summary judgment against the
Barbaras on the first count of the amended complaint, breach of contract. Colonial Surety
v. Phoenix, Docket No. UWY-CV-106045128, Doc. No. 141.00. In support of its Motion
for Summary Judgment, Colonial filed affidavits from Wayne Nunziata and Attorney
Steven Lapp, in addition to 29 exhibits. See Colonial Surety, Doc. No. 142. See also
Colonial Surety, Doc. No. 167, pp. 6-8.
James and Lina Barbara filed oppositions to the Motion for Summary Judgment in
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the form of affidavits. See Colonial Surety, Doc. Nos. 158.00 and 159.00. The Barbaras
each attached 18 exhibits to their opposition affidavits. Colonial Surety, Doc. Nos. 158.00
and 159.00. Colonial filed a reply memorandum which included an affidavit by Attorney
Lapp and the 32 exhibits which had been filed in this matter. Colonial Surety, Doc. No.
160.00. The court heard oral arguments on March 8, 2021.
This Court (Bellis, J.) granted summary judgment in favor of Colonial on the first
count of the amended complaint.3 Colonial Surety, Doc. No. 167.00. This Court held that
Colonial “satisfied the prima facie evidence clause in the indemnity agreement. The
burden now shifts to the defendants to raise a genuine issue of material fact as to
Colonial’s lack of good faith in making the payments for which it seeks indemnification.”
Colonial Surety, Doc. No. 167.00, at 15. This Court noted that:
the defendants’ claim of bad faith is based on Colonial’s alleged failure to
raise several potential defenses against Gotham in a pre-answer motion to
dismiss or motion for summary judgment rather than in its verified answer
to Gotham’s complaint as affirmative defenses. By going forward with
litigation and settling the Gotham lawsuit, the defendants argue, Colonial
incurred additional unnecessary losses, costs, and expenses. The
defendants also argue that Colonial settled the Gotham lawsuit in bad faith
so that it could have future business with Gotham.
Colonial Surety, Doc. No. 167.00, at 15-16. The decision set forth the potential defenses
which the Barbaras claimed should have been raised in the New York action. Colonial
Surety, Doc. No. 167.00, at 16.
This Court addressed the Barbaras’ claims of bad faith in detail. This Court held
that
3 Phoenix was defaulted for failure to appear. Colonial Surety, Doc. No. 102.10.
Therefore the motion for summary judgment in the indemnity matter was directed only at
the individual defendants in that action, Lina and James Barbara, who are the plaintiffs in
this action. Colonial Surety, Doc. No. 167.00, p. 1 n. 1.
4
The defendants have not provided admissible evidence substantiating their
assertion that Colonial, in bad faith, failed to file a pre-answer motion to
dismiss and settled the Gotham lawsuit to obtain future business with
Gotham, other than conclusory and speculative statements in their
affidavits. Further, this assertion is not based on the defendants’ personal
knowledge as required by Practice Book § 17-46. The defendants,
therefore, have failed to submit evidence to demonstrate a genuine issue of
material fact that Colonial acted with an improper motive or dishonest
purpose in its handling of the claims in the Gotham lawsuit. Accordingly,
the defendants have failed to raise a genuine issue of material fact as to
Colonial’s good faith determination of the advisability and necessity of
expenses it incurred in connection with the Gotham bonds.
Colonial Surety, Doc. No. 167.00, at 28. This Court granted summary judgment on the
first count of the indemnity action’s amended complaint. Colonial Surety, Doc. No.
167.00, at 28. Colonial subsequently withdrew the remaining counts and moved for
judgment against the Barbaras and Phoenix. Colonial Surety, Doc. No. 176.00. On
January 10, 2022, judgment entered against the Barbaras in the amount of
$2,946,959.26, which included 10% prejudgment interest. Colonial Surety, Doc. 199.00,
pp. 10-11.4 The judgment also awarded post-judgment interest at 10%. Colonial Surety,
Doc. 199.00, p. 11. The Barbaras appealed that judgment to the Appellate Court. The
Appellate Court affirmed that judgment in Barbara, 221 Conn. App. at 373.
The Appellate Court agreed that “Colonial satisfied the prima facie evidence and
right-to-settle provisions. . . .” Barbara, 221 Conn. App. at 361.
Accordingly, the burden shifted to the Barbaras to raise a genuine
issue of material fact as to whether Colonial acted in bad faith in incurring
those expenses and/or settling the New York action. In opposing summary
judgment, the Barbaras conceded that they failed to post collateral in
accordance with paragraph 10 (V) of the indemnity agreement but claimed
4 Judgment entered against Phoenix pursuant to the default in the amount of
$2,946,959.26, which included 10% prejudgment interest, and an award of 10% post-
judgment interest. Colonial Surety, Doc. No. 194.10.
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that Colonial acted in bad faith by unreasonably incurring expenses in the
New York action and by settling Gotham’s claims and Phoenix’s affirmative
claims out of self-interest for the sole purpose of garnering future business
from Gotham.
Barbara, 221 Conn. App. at 362.5 The Appellate Court then held that:
During oral argument before this court, however, counsel for the Barbaras
acknowledged that there is no evidence in the record suggesting, as they
had argued in the trial court, that Colonial settled the New York action to
garner future business from Gotham. For that reason, the Barbaras have
abandoned their claim as to that alleged improper motive and, instead,
argue that “[a] fair and reasonable fact finder” could find “that it was
unreasonable for Colonial to incur [almost $1.5 million in expenses] without
first testing [Gotham’s] claims through a motion to dismiss for failure to
satisfy the [performance] bond’s conditions precedent” and “that Colonial
settled the New York [action] solely to protect its own self-interest because
it surrendered claims to Phoenix and then later took them back solely
because [Gotham] told Colonial that it would not settle its performance bond
claim without them.”
Barbara, 221 Conn. App. at 364.6
The Appellate Court considered this case in light of PSE Consulting, Inc. v. Frank
Mercede & Sons, Inc., 267 Conn. 279 (2004), as did this Court. Barbara, 221 Conn. App.
5 The Appellate Court noted that:
[a]lthough Colonial is afforded broad discretion in handling any claims
against Gotham bonds, the Barbaras had the right to assert control over the
litigation pursuant to paragraph 10 (V) of the indemnity agreement. . . .
Accordingly, the Barbaras had the option of notifying Colonial that they
wanted Colonial to defend the claims against the Gotham bonds and
simultaneously deposit collateral with Colonial sufficient to cover those
claims, but they failed to do so.
Barbara, 221 Conn. App. at 360-61.
6 The Appellate Court noted that Colonial challenged this new claim as unpreserved and
therefore unreviewable. However, the Appellate Court held that “[w]e need not decide
whether the Barbaras’ claim is properly characterized as a claim or argument because
we conclude that they cannot prevail on the merits of it.” Barbara, 221 Conn. App. at 364
n. 19 (emphasis added).
6
at 365-67; Colonial Surety, Doc. No. 167, pp. 21-25. The Appellate Court first addressed
the Barbaras’ claim that Colonial acted in bad faith in litigating the New York action without
filing a preemptive motion to dismiss. Barbara, 221 Conn. App. at 367-370. The
Appellate Court held that:
Given the existence of issues of fact surrounding the performance
bond conditions, and in light of the Barbaras’ admitted insolvency in their
letter refusing Colonial’s demand for collateral, the Barbaras have failed to
demonstrate that Colonial’s decision to settle the New York action, rather
than moving to dismiss it, was an unreasonable exercise of the discretion
Colonial is afforded under the indemnity agreement.
Barbara, 221 Conn. App. at 370. Thus, both this Court and the Appellate Court held that
Colonial was not unreasonable in litigating and settling the New York action.
The Appellate Court then turned to the Barbaras’ claims that Colonial acted with
an improper motive or a dishonest purpose. The Appellate Court held that
Further undermining the Barbaras’ claim is the fact that they failed to
present any evidence of a possible motivation that Colonial had to incur
hundreds of thousands of dollars in unnecessary defense costs in the New
York action is it thought a preemptive motion to dismiss would have been
successful. Likewise, with regard to Colonial’s self-interested settlement,
there is no evidence of an improper motive or a dishonest purpose.
Barbara, 221 Conn. App. at 371 (emphasis added). The Appellate Court held that
“Colonial’s settlement of the performance bond claim protected both itself and Phoenix
from the possibility of a substantially larger judgment and further litigation costs.”
Barbara, 221 Conn. App. at 371. “Furthermore, unlike the principal in PSE Consulting,
Inc., the Barbaras had the option of posting collateral and instructing Colonial to defend
the claims in the New York action but failed to do so.” Barbara, 221 Conn. App. at 372.
On the claim that Colonial entered into the settlement in the New York action in its
own self-interest, the Appellate Court held that “the Barbaras fail to recognize that self-
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interest is not itself evidence of an improper motive.” Barbara, 221 Conn. App. at 372.
Thus, although Colonial’s decision to exercise its rights under the indemnity
agreement was motivated by self-interest, “it does not follow that the self-
interested exercise of rights under a contract necessarily constitutes a per
se violation of the implied covenant of good faith and fair dealing. Indeed,
there must be something more than a self-interested settlement, but the
“other evidence of improper motive” presented in PSE Consulting, Inc., is
absent in the present case.
Barbara, 221 Conn. App. at 372-73 (citations and quotations omitted) (emphasis in
original).
The Appellate Court held that this Court properly rendered summary judgment for
Colonial.
[T]he Barbaras introduced no evidence to support their allegations that
Colonial acted with an improper motive or dishonest purpose in the New
York action. The Barbaras presented no evidence that Colonial’s decision
to settle the New York action, rather than attempting to have it dismissed,
was made in bad faith.
Barbara, 221 Conn. App. at 373. The Barbaras petitioned for certification to the
Connecticut Supreme Court, which was denied. Colonial Surety v. Phoenix Contracting
Group, 348 Conn. 924 (2023).
C. Proceedings in this Case
The Revised Complaint dated November 20, 2018 is the operative complaint in
this case. In the First Count, Breach of Contract – Indemnity Agreement, the Barbaras
claim that
21. Colonial should have filed a pre answer motion for dismissal in
the New York action instead of answering because it would have been
dismissed and Phoenix would not have incurred substantial expenses.
22. By doing this Colonial materially breached the [indemnity
agreement] by electing the course of action that would incur substantial
expenses that would neither be necessary or advisable.
Barbaras v. Colonial Surety, Doc. No. 129.00, p. 4. The Barbaras allege that “[b]y doing
8
this Colonial could cut a deal with Gotham on future work or at least earn their
appreciation.” Barbaras v. Colonial Surety, Doc. No. 129, p. 4, ¶ 24. The Barbaras further
claim that “Colonial had the option of moving for summary judgment based upon
[Gotham’s] failure to meet the preconditions of the Bond instead of engaging in years of
discovery practice which were not necessary or advisable.” Colonial Surety, Doc. No.
129, p. 4, ¶ 25. The Barbaras claim that Colonial ultimately settled the underlying cases
“for the promise of future business.” Barbaras v. Colonial Surety, Doc. No. 129, p. 5, ¶
32. The Barbaras specifically plead the following claims of breach of the indemnity
agreement:
34. Colonial materially breached section 4(B) of the [Indemnity
Agreement] by answering in the New York action rather than by a pre
answer motion for dismissal which would have been the advisable and
economical action.
35. Colonial materially breached section 4(B) of the [Indemnity
Agreement] by continuing to engage in substantial discovery which was
unnecessary and inadvisable instead of moving for summary judgment on
the action in New York.
36. Colonial materially breached section 4(B) of the [Indemnity
Agreement] by settling the New York litigation for $100,000 and dismissal
of Phoenix’s affirmative claims after it became evident that it’s [sic] case had
become stronger.
Barbaras v. Colonial Surety, Doc. No. 129, p. 6.
The Barbaras incorporate all of the allegations of the First Count into the Second
Count, Breach of Implied Contract of Good Faith of [Indemnity Agreement]. Colonial
Surety, Doc. No. 129, p. 6, ¶ 41. They allege that Colonial engaged in the New York
litigation and incurred fees in order to retain the right to settle Phoenix’s claims in order
to obtain an advantage with Gotham. Colonial Surety, Doc. No. 129, pp. 6-7, ¶¶ 44-51.
The Barbaras then specifically plead the following claims of breach of the implied
covenant of good faith and fair dealing:
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54. Colonial breached the implied covenant of good faith by failing
to make a pre answer motion to dismiss the New York litigation. I [sic]
wanted to remain in the New York litigation so that it could make a back
door deal with Gotham.
55. Colonial breached the implied covenant of good faith by
engaging in substantial discovery for years instigated by its attorneys
instead of moving for summary judgment to ensure that it would be able to
make a back door deal with Gotham in the New York litigation.
56. Colonial breached the implied covenant of good faith by settling
the New York litigation paying Gotham $100,000 and dismissing Phoenix’s
over $5 million of affirmative claims instead of moving for summary
judgment.
Barbaras v. Colonial Surety, Doc. No. 129, p. 8.
The Barbaras incorporate all of the allegations of the First and Second Counts into
the Third Count, Breach of the Performance Bond. Colonial Surety, Doc. No. 129, p. 9,
¶64. The Barbaras once again allege that “the New York litigation should have been
dismissed against Colonial had they made a pre answer motion to dismiss or motion for
summary judgment.” Barbaras v. Colonial Surety, Doc. No. 129, p. 10, ¶ 72. They then
specifically allege that “Colonial breached the terms of the Bond by not moving for
dismissal of the New York litigation against Colonial.” Barbaras v. Colonial Surety, Doc.
No. 129, p. 10, ¶ 74.
The Barbaras incorporate all of the allegations of the First, Second, and Third
Counts into the Fourth Count, seeking declaratory judgment. Barbaras v. Colonial Surety,
Doc. No. 129, p. 11, ¶ 85. Specifically, the Barbaras allege that “Colonial materially
breached the [Indemnity Agreement] by expending so much money on litigation in New
York it could have gotten out of.” Barbaras v. Colonial Surety, Doc. No. 129, p. 12, ¶ 91.
The Barbaras further allege that “Colonial breached the [Indemnity Agreement] so that it
could use another portion of the [Indemnity Agreement] to settle Phoenix’s claim with
GGS for future business.” Barbaras v. Colonial Surety, Doc. No. 129, p. 12, ¶ 93. The
10
Barbaras ask that the Indemnity Agreement be declared void due to their allegations of
Colonial’s bad faith and breaches of the Indemnity Agreement. Barbaras v. Colonial
Surety, Doc. No. 129, p. 13, ¶ 98.
Colonial previously moved for summary judgment in this action, claiming that this
action was precluded by collateral estoppel and/or res judicata based upon the decision
in the New York action that approved the settlement. Barbaras v. Colonial Surety, Doc.
No. 155. This Court denied that motion. Barbaras v. Colonial Surety, Doc. No. 171.
Colonial appealed and the Appellate Court affirmed that decision on the grounds that the
Barbaras did not have an adequate opportunity to litigate their claims in the New York
action. Barbara, 221 Conn. App. at 385-86.
Of note, in affirming the denial of the motion for summary judgment in this case on
the basis of res judicata and/or collateral estoppel based upon the New York action, the
Appellate Court observed that “[o]f course, we recognize that, because the Barbaras’ bad
faith claims were litigated and decided adversely to the Barbaras in the indemnity action,
on remand, Colonial may move for summary judgment in the Barbaras’ action on the
basis of the preclusive effect of the judgment in the indemnity action.” Barbara, 221 Conn.
App. at 386 n. 26.
II. Argument
Summary judgment is proper where “there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.” P.B. § 17-49.
“The party seeking summary judgment has the burden of showing the absence of any
genuine issue [of] material facts which, under applicable principles of substantive law,
entitle him to a judgment as a matter of law. . . .” Buell Industries v. Greater New York
11
Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002).
Summary judgment is a proper forum for resolving res judicata and collateral
estoppel claims. “Because res judicata or collateral estoppel, if raised, may be dispositive
of a claim, summary judgment was the appropriate method for resolving a claim of res
judicata.” Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 712 (1993). See also Stein v.
Horton, 99 Conn. App. 477 (2007) (affirming summary judgment on res judicata basis);
Joe's Pizza v. Aetna Life & Casualty Co., 236 Conn. 863, (1996) (same); Virgo v. Lyons,
209 Conn. 497 (1988) (same).
There are no genuine issues of material fact. Colonial is entitled to judgment on
all four counts of the revised complaint as a matter of law based on res judicata and/or
collateral estoppel.
A. Res Judicata Bars Plaintiffs’ Claims.
“[R]es judicata provides that a valid, final judgment rendered on the merits by a
court of competent jurisdiction is an absolute bar to a subsequent action between the same
parties upon the same claim or demand.” Weiss v. Weiss, 297 Conn. 446, 459 (2010)
(citations, quotations and alterations omitted) (affirming summary judgment on basis of res
judicata). “Res judicata or claim preclusion expresses no more than the fundamental
principle that once a matter has been fully and fairly litigated, and finally decided, it comes
to rest.” Wheeler v. Beachcroft, LLC, 320 Conn. 146, 156-58 (2016) (citations and
quotations omitted).
The doctrine is but a manifestation of the recognition that endless litigation
leads to confusion or chaos. . . . If the same cause of action is again sued
on, the judgment is a bar to any claims relating to the cause of action which
were actually made or might have been made.
Wade's Dairy, Inc. v. Town of Fairfield, 181 Conn. 556, 559 (1980) (citations omitted).
12
See also Powell v. Infinity Insurance Co., 282 Conn. 594, 600 (2007). “Where a party has
fully and fairly litigated his claims, he may be barred from future actions on matters not
raised in the prior proceeding.” Weiss, 297 Conn. at 459-60 (citation, quotations and
alterations omitted; emphasis in original).
“Res judicata bars the relitigation of claims actually made in the prior action as well
as claims that might have been made. . . . Thus res judicata prevents reassertion of the
prior claim regardless of what additional or different evidence or legal theories might be
advanced in support of it.” Wheeler, 320 Conn. at 157 (citations and quotations omitted;
emphasis added).
[F]or res judicata to apply, four elements must be met: (1) the judgment
must have been rendered on the merits by a court of competent jurisdiction;
(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.
Wheeler, supra, at 156–57 (citations omitted).
1. The Colonial Surety judgment was rendered on the merits by courts of
competent jurisdiction.
The Barbaras did not contest the jurisdiction of the Trial Court or Appellate Court
to determine the issues in the Indemnity Action. Nor can they.
The judgment in the Indemnity Action in favor of Colonial was rendered on the
merits of both Colonial’s claims and the Barbaras’ defenses. “Traditionally, a judgment
is on the merits when it amounts to a decision as to the respective rights and liabilities of
the parties, based on the ultimate fact or state of facts disclosed by the pleadings or
evidence, or both, and on which the right of recovery depends. . . .” Santorso v. Bristol
Hospital, 308 Conn. 338, 348 (2013) (citation and quotations omitted). In Colonial Surety,
this Court adjudicated Defendant’s rights under the Indemnity Agreement.
13
In order to resolve the question of the enforcement of the Indemnity Agreement,
this Court, and the Appellate Court, necessarily had to review and resolve the defenses
raised by the Barbaras contesting the enforceability of the Indemnity Agreement. The
judgment was based on the parties’ briefing, affidavits, and voluminous exhibits. This
Court’s judgment, and the Appellate Court affirmance of that decision, expressly
addressed on the merits the defenses raised by the Barbaras. The Colonial Surety v.
Phoenix matter adjudicated the claims made in defense of the Motion for Summary
Judgment on the merits.
2. Plaintiffs were parties in the Colonial Surety matter.
The Barbaras, plaintiffs here, were defendants in the Colonial Surety v. Phoenix
matter.
3. Plaintiffs had an adequate opportunity to fully litigate their claims in the
Colonial Surety matter.
In the Colonial Surety matter, the Barbaras had more than an adequate opportunity
to litigate their claims. The Barbaras fully litigated their claims and arguments in their
oppositions to the Motion for Summary Judgment. As discussed above, and as detailed
by this Court, the Barbaras’ affidavits in opposition included legal authorities and
voluminous documentary evidence. See Colonial Surety, Doc. Nos.158.00 and 159.00.
The Barbaras directly and fully participated in the presentation of their claims and
defenses. As the Barbaras fully litigated their claims in opposition to the Motion for
Summary Judgment and on appeal, they necessarily had an adequate opportunity to do
so. See Couloute v. Board of Education of Town of Glastonbury, 204 Conn. App. 120,
131-32, cert. denied, 336 Conn. 946 (2021).
14
4. Plaintiffs allege the same claims and demands in this action as they raised
in the Colonial Surety matter.
Res judicata applies to the resolution of all of the claims addressed in the judgment,
as well as claims that could have been raised.
The doctrine of res judicata holds that an existing final judgment rendered
upon the merits without fraud or collusion, by a court of competent
jurisdiction, is conclusive of causes of action and of facts or issues thereby
litigated as to the parties and their privies in all other actions in the same or
any other judicial tribunal of concurrent jurisdiction.
Wade's Dairy, 181 Conn. at 559.
A cause of action is that single group of facts which is claimed to have
brought about an unlawful injury to the plaintiff and which entitles the plaintiff
to relief. Even 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.
Wade's Dairy, 181 Conn. at 560 (citations omitted). “Thus, it is generally held that a
matter which is available as a defense to an action at law becomes res judicata by the
judgment rendered therein, and may not be made the predicate of equitable relief.”
Wade's Dairy, 181 Conn. at 560. See also DeMilo & Co. v. Commissioner of Motor
Vehicles, 233 Conn. 281 (1995) (holding res judicata barred plaintiff’s claims where
plaintiff could have raised the same claims as defenses in a separate action by defendant
to enforce its rights under a judgment; plaintiff’s prosecution of the claims was barred as,
if successful, it would nullify the prior judgment or impair defendant’s rights); Krondes v.
Norwalk Savings Society, 53 Conn. App. 102, 119-20 (1999) (affirming directed verdict
for defendant on res judicata grounds where plaintiff’s bad faith claim was previously
raised as a defense and unsuccessfully litigated in a prior action).
Applying the transactional test, the Barbaras’ claims in this action arise from the
15
same “factual underpinnings” as the Barbaras’ claims which were fully and fairly litigated
in Colonial Surety. There is no difference in the alleged facts, events, and transactions
underlying Plaintiffs’ oppositions to Colonial’s claim indemnification in the Motion for
Summary Judgment and Plaintiffs’ claims in their Revised Complaint. When opposing the
Motion for Summary Judgment in the Colonial Surety matter, the Barbaras expressly
alleged that Colonial acted in bad faith and in breach of the Indemnity Agreement. They
aggressively litigated those claims, seeking denial of the Motion for Summary Judgment
on the same bases that are claimed in this action.
For instance, in Lina Barbara’s Opposition to Colonial’s Motion for Summary
Judgment in the Colonial Surety matter, Ms. Barbara stated that:
Basically, in this action Colonial Surety Company (“Colonial”) is suing
Phoenix and the Barbaras under the indemnity agreement to recover
monies it expended in bad faith, with improper motive by remaining in a
lawsuit in New York City (“New York litigation”) litigating the New York
litigation and settling it paying money and dismissing Phoenix’s affirmative
claims when it could have gotten out and had the case dismissed against it
at the New York litigation’s inception. Colonial spent in excess of $1.6
million unnecessarily and in bad faith so that Colonial could obtain a
promise of future business from a top construction manager in the New York
City market.
Colonial Surety, Doc. No. 159.00, pp. 1-2, ¶ 3. See also James Barbara’s Opposition to
Colonial’s Motion for Summary Judgment. Colonial Surety, Doc. No. 158.00, pp. 1-2, ¶ 3
(setting forth identical claims).
Ms. Barbara’s Opposition further argued that:
Colonial’s motion should be denied as there are questions of fact that
remain which should preclude the granting of summary judgment in
Colonial’s favor, such as whether the fees incurred by Colonial were in it’s
[sic] good faith belief, “necessary” or “advisable”. If they were not, Colonial
should not be granted summary judgment. The Barbaras also claim that
there is a triable issue of fact as to whether or not Colonial had an improper
motive in the way it handled the New York litigation.
16
Colonial Surety, Doc. No. 159.00, p. 4, ¶ 4. See also James Barbara’s Opposition to
Colonial’s Motion for Summary Judgment. Colonial Surety, Doc. No. 158.00, p. 4, ¶ 4
(setting forth identical claims). Ms. Barbara further claimed that:
Colonial knew right from the start of the New York litigation that it had no
liability to GGC under the performance bond yet it remained in the New York
litigation instead of making a pre answer motion for dismissal because it
wanted to cut a deal with Gotham for future business.
Colonial Surety, Doc. No. 159.00, p. 6, ¶ 19. Colonial Surety, Doc. No. 158.00, p. 6, ¶ 19
(setting forth identical claims). See also Colonial Surety, Doc. Nos. 158.00 and 159.00,
¶¶ 17- 18, 22, 28-29, 32-33, 34-39, 48-49, n. 6. The Barbaras claimed that “Colonial’s
motion for summary judgment should be denied as there remain questions of fact as to
whether the damages being sought constitute necessary or advisable expenses in
Colonial’s good faith belief. It is the Barbaras’ contention that the damages were not
necessary or advisable.” Colonial Surety, Doc. No. 159.00, pp. 11-12, ¶ 53. See also
Colonial Surety, Doc. No. 159.00, pp. 11-12, ¶ 53.
These are the same claims and demands that are made in this action. See above
at pp. 8-10. These are also the same claims and demands which were resolved by this
Court. See above at pp. 4-5. And these are the same claims and demands which were
also resolved by the Appellate Court when it affirmed this Court’s grant of summary
judgment. See above at pp. 5-7.
The judgment in Colonial Surety satisfies all four requirements for the application
of res judicata to preclude this action.
Unlike collateral estoppel, under which preclusion occurs only if a claim
actually has been litigated, under the doctrine of res judicata, or claim
preclusion, a former judgment on a claim, if rendered on the merits, is an
absolute bar to a subsequent action on the same claim or any claim based
17
on the same operative facts that might have been made.
Smith v. Bl Companies, 185 Conn. App. 656, 663-64 (2018) (citations, quotations and
alterations omitted; emphasis added). “Thus, when the facts underlying the claims are
the same, res judicata may apply.” Smith, 185 Conn. App. at 668. Here the facts
underlying the claims are the same, and the claims are the same. As the claims alleged
here are the same as those necessarily resolved after full litigation by this Court and the
Appellate Court, res judicata applies and precludes this action.
5. Policy favors preclusion
The policies underlying res judicata favor preclusion in this matter. “The purposes
of res judicata are promoting judicial economy, minimizing repetitive litigation, preventing
inconsistent judgments and providing repose to parties.” Smith, 185 Conn. App. at 669
(quotations omitted) (finding the policies underlying res judicata favor preclusion where
litigation had been pending six years). “[T]he counter-vailing interest in bringing litigation
to a close is strong.” Smith, 185 Conn. App. at 670.
Application of res judicata to this action will promote judicial economy and minimize
repetitive litigation. The Colonial Surety action was commenced in 2010. The settlement
of the New York litigation was in 2015. This action was commenced six years ago.7 The
Barbaras raised these claims before the court in the New York action and the settlement
7 Phoenix has an action pending against Colonial in New York Supreme Court, Phoenix
Contracting Group, Inc. v. Colonial Surety Co., Index No. 651271/2017, which was
commenced in March of 2017 by Attorney Tang, also known as Ms. Barbara, who is
licensed to practice law in New York. That action makes the same claims of breach of
the Indemnity Agreement against Colonial, including breach for failure to file a pre answer
dismissal and engaging in discovery, and for settling the New York action and dismissing
Phoenix’s affirmative claims. Colonial will be filing a motion for summary judgment in
New York on the basis of res judicata and/or collateral estoppel.
18
was enforced anyway. The Barbaras raised and actively litigated their claims in Colonial
Surety. This Court and the Appellate Court held that there was no basis for the claims.
It is time for the litigation between these parties to be brought to a close.
Application of res judicata to this action through this Motion for Summary Judgment
is necessary to prevent inconsistent judgments. This Court, as affirmed by the Appellate
Court, found no basis for the claims of bad faith made by the Barbaras. Permitting this
action to continue, which raises the same claims, raises the possibility of inconsistent
judgments on those same claims. Policy favors application of res judicata in this matter.
Res judicata also precludes a party from pursuing claims in a second action which
are premised on a cause of action which that party could have raised as a counterclaim
or defenses in a prior action, if the successful prosecution of the second action would
nullify the judgment in the prior action or impair rights established in that action. DeMilo
& Co. v. Commissioner of Motor Vehicles, 233 Conn. 281, 293–94 (1995) (applying res
judicata to defenses that should have been raised). The claims plead in the Revised
Complaint are the same as those raised in Colonial Surety. Even if the form of the claims
were different, res judicata bars the Barbaras from relitigating the same claims in this
action.
Summary judgment should enter for Colonial on all counts
B. Collateral Estoppel Also Bars Plaintiffs’ Claims.
Collateral estoppel also precludes the Barbaras from relitigating claims actually
and necessarily decided by this Court and the Appellate Court in Colonial Surety. As all
of the claims alleged in this matter were actually and necessarily decided by this Court
and the Appellate Court, summary judgment should enter for Colonial on all counts.
19
Collateral estoppel precludes a party from relitigating issues
and facts actually and necessarily determined in an earlier
proceeding between the same parties or those in privity with
them upon a different claim. An issue is actually litigated if it
is properly raised in the pleadings or otherwise, submitted for
determination, and in fact determined. An issue is necessarily
determined if, in the absence of a determination of the issue,
the judgment could not have been validly rendered.
Elder v. Kauffman, 204 Conn. App. 818, 826 (2021) (citation and alterations omitted). “[A]
party may assert the doctrine of collateral estoppel successfully when three requirements
are met: [1] [t]he issue must have been fully and fairly litigated in the first action, [2] it
must have been actually decided, and [3] the decision must have been necessary to the
judgment.” Wiacek Farms, LLC v. City of Shelton, 132 Conn. App. 163, 169 (2011). The
claims raised in this case were fully and fairly litigated, and necessarily and actually
decided by this Court in Colonial Surety.
As discussed above, the legal and factual issues underlying Plaintiffs’ claims in
this action are the same as those raised in the Barbaras’ oppositions to the Motion for
Summary Judgment. The Barbaras’ oppositions to the Motion for Summary Judgment
argued that Colonial was not entitled to enforce the Indemnity Agreement because
Colonial litigated and then settled the New York action in bad faith. Specifically, as
detailed above, the Barbaras claimed that Colonial failed to have pursued its claims in the
New York action by a pre answer motion to dismiss or a motion for summary judgment,
instead of engaging in discovery, and then entered into the Settlement Agreement in bad
faith because they were seeking to obtain favor with Gotham. See above at pp. 4-5.
Those claims were fully and fairly litigated. The Barbaras presented affidavits and
extensive evidence to the Court for its consideration. Colonial Surety, Doc. Nos. 158.00
and 159.00; 167.00, pp. 8-9. In order to determine whether Colonial was entitled to its
20
expenses in the indemnity action, this Court necessarily resolved the Barbaras’ question
of whether Colonial acted in good faith when it litigated and settled the New York litigation.
This Court held that:
The defendants, therefore, have failed to submit evidence to demonstrate
a genuine issue of material fact that Colonial acted with an improper motive
or dishonest purpose in its handling of the claims in the Gotham lawsuit.
Accordingly, the defendants have failed to raise a genuine issue of material
fact as to Colonial’s good faith determination of the advisability and
necessity of expenses it incurred in connection with the Gotham bonds.
Colonial Surety, Doc. No 167.00, p. 28. The Appellate Court affirmed this Court’s grant
of summary judgment, also addressing in detail the defenses raised by the Barbaras to
Colonial’s Motion for Summary Judgment. The Appellate Court noted that the Barbaras
“claimed that Colonial acted in bad faith by unreasonably incurring expenses in the New
York action and by settling Gotham’s claims and Phoenix’s affirmative claims out of self-
interest for the sole purpose of garnering future business from Gotham.” Barbara, 221
Conn. App. at 362. “During oral argument before [the Appellate] court, however, counsel
for the Barbaras acknowledged that there is no evidence in the record suggesting, as they
had argued in the trial court, that Colonial settled the New York action to garner future
business from Gotham.” Barbara, 221 Conn. App. at 364. The Appellate Court then held
that “the Barbaras have failed to demonstrate that Colonial’s decision to settle the New
York action, rather than moving to dismiss it, was an unreasonable exercise of the
discretion Colonial is afforded under the indemnity agreement.” Barbara, 221 Conn. App.
at 370. Finally, the Appellate Court held that “with regard to Colonial’s self-interested
settlement, there is no evidence of an improper motive or a dishonest purpose.” Barbara,
221 Conn. App. at 371.
As all four counts of the Barbaras’ Revised Complaint rely on issues which have
21
been fully and fairly litigated, and actually and necessarily decided, summary judgment is
properly granted on all four counts on the basis of collateral estoppel.
CONCLUSION
As the Appellate Court noted, as “the Barbaras’ bad faith claims were litigated and
decided adversely to the Barbaras in the indemnity action, on remand, Colonial may move
for summary judgment in the Barbaras’ action on the basis of the preclusive effect of the
judgment in the indemnity action.” Barbara, 221 Conn. App. at 386 n. 26. All four counts
of the Barbaras’ claims in this action are barred by both the doctrine of res judicata and/or
the doctrine of collateral estoppel.
DEFENDANT,
COLONIAL SURETY COMPANY
By: /s/ Karen L. Dowd (Juris No. 404685)
Karen L. Dowd
McElroy, Deutsch, Mulvaney & Carpenter, LLP
One State Street - 14th Floor
Hartford, CT 06103-3102
Tel. No. (860) 241-2635
Fax No. (860) 522-2796
kdowd@mdmc-law.com
22
CERTIFICATION
The undersigned herby certified that a copy of the foregoing was served via first
class mail, postage prepaid, and via electronic mail, pursuant to P.B. 10-13 on January
19, 2024, to all counsel and self-represented parties of record as follows:
Lina T. Barbara
420 Gulf Street
Milford CT 06460
James E. Barbara
420 Gulf Street
Milford CT 06460
/s/ Karen L. Dowd (Juris No. 404685)
Karen L. Dowd
23
EXHIBIT A
EXHIBIT B
Barbara v. Colonial Sur. Co.
Appellate Court of Connecticut
April 3, 2023, Argued; August 22, 2023, Officially Released.
AC 44836, AC 45267
Reporter
221 Conn. App. 337 *; 2023 Conn. App. LEXIS 201 **
June 23, 2021)
JAMES E. BARBARA ET AL. v. COLONIAL
SURETY COMPANY;COLONIAL SURETY Disposition: Affirmed.
COMPANY v. PHOENIX CONTRACTING
GROUP ET AL. Syllabus
Subsequent History: Appeal denied by Colonial
Sur. Co. v. Phx. Contr. Grp., 2023 Conn. LEXIS
In two separate actions arising out of a hotel
258 (Conn., Nov. 28, 2023)
construction project in New York, C Co., a
Prior History: [**1] Action, in the first case, to commercial surety company, in one action, sought
recover damages for, inter alia, breach of contract, to enforce an indemnity agreement against P Co.
and for other relief, brought to the Superior Court and its individual principals, J and L, and, in a
in the judicial district of Ansonia-Milford, and second action, the individual principals sought to
action, in the second case, for, inter alia, invalidate [**2] the indemnity agreement,
indemnification, and for other relief, brought to the asserting breach of contract and bad faith claims. P
Superior Court in the judicial district of New Co., as a subcontractor, executed a trade
Haven, where the named defendant was defaulted subcontract with G Co., the general contractor for
for failure to appear; thereafter, both cases were the hotel project, to supply and install exterior
transferred to the Superior Court in the judicial window
Preview
DOCKET NO. UWY-X06-CV17-5023922-S : SUPERIOR COURT JAMES E. BARBARA and : JUDICIAL DISTRICT OF : WATERBURY LINA T. BARBARA : COMPLEX LITIGATION DOCKET v. : AT WATERBURY COLONIAL SURETY COMPANY : JANUARY 19, 2024 MEMORANDUM IN SUPPORT OF DEFENDANT COLONIAL SURETY COMPANY’S MOTION FOR SUMMARY JUDGMENT Pursuant to P.B. §§ 17-44 et seq., the Defendant, Colonial Surety Company, submits this Memorandum of Law in support of its Motion for Summary Judgment as to all four counts of the Revised Complaint. There are no genuine issues of material fact in this case in light of this Court’s judgment in Colonial Surety v. Phoenix, Docket No. UWY-CV-106045128 (“Indemnity Action”), and the Appellate Court’s affirmance of that judgment in Barbara v. Colonial Surety Co., 221 Conn. App. 337 (2023).1 As the Appellate Court noted, “because the Barbaras’ bad faith claims were litigated and decided adversely to the Barbaras in the indemnity action, on remand, Colonial may move for summary judgment in the Barbaras’ action on the basis of the preclusive effect of the judgment in the indemnity action.” Barbara, 221 Conn. App. at 386 n. 26. The claims set forth in all four counts of the Revised Complaint are precluded by res judicata and/or 1 In order to make it clear which action is being cited, where this Memorandum refers to Colonial Surety v. Phoenix, Docket No. UWY-CV-106045128 (“Indemnity Action”), the citation will be to Colonial Surety, with applicable docket citations. This Memorandum will refer to the Appellate Court’s decision as Barbara, with the full citation to 221 Conn. App. References to this matter will refer to Barbara v. Colonial Surety, with applicable docket citations. 1 collateral estoppel.2 I. Statement of Facts and Proceedings A. Underlying Facts Plaintiffs James and Lina Barbara (“the Barbaras”) are the owners of Phoenix Contracting Company (“Phoenix”). Barbara, 221 Conn. App. at 341. Defendant Colonial Surety Company (“Colonial”) “is a commercial surety company that issues payment and performance bonds on behalf of contractors and subcontractors for construction projects.” Barbara, 221 Conn. App. at 342. In 2007, Phoenix entered into a subcontract with Gotham Greenwich Construction Co., LLC (“Gotham”) to provide and install window walls for a hotel project in New York. Barbara, 221 Conn. App. at 340-42. On May 1, 2008, the Barbaras and Phoenix executed a General Indemnity Agreement (the “Indemnity Agreement”) in favor of Colonial. Barbara, 221 Conn. App. at 342. On May 20, 2008, Colonial issued performance and payment bonds on behalf of Phoenix to Gotham. Barbara, 221 Conn. App. at 342. Pursuant to the indemnity agreement, Phoenix and the Barbaras (1) agreed to indemnify Colonial for any losses that Colonial might incur from issuing the Gotham bonds on behalf of Phoenix, (2) granted Colonial the authority to settle any claims on the Gotham bonds and assigned to Colonial all their rights in and to the subcontract, and (3) appointed Colonial as their attorney-in-fact “with the right but not the obligation, to exercise all of the rights assigned” to Colonial in the indemnity agreement. Barbara, 221 Conn. App. at 343. See also Barbara, 221 Conn. App. at 343 n. 6. In the present case, the indemnity agreement includes the following right-to-settle and prima facie evidence provisions: “[Colonial] shall have the 2For the convenience of the Court, Colonial has attached the trial court’s decision in Colonial Surety (Ex. A) and the Appellate Court decision (Ex. B). “Section 17-45 does not mandate that an affidavit be attached in all cases. In this case, an affidavit was not necessary because the relevant facts were not being challenged and already were available to the court.” Davis v. Family Dollar Store, 78 Conn. App. 235, 238 n.3 (2003). 2 right in its sole discretion to determine whether any claims should be paid, compromised, defended, prosecuted or appealed. . . . [Colonial] shall have the right to incur such expenses in handling such a claim as it deems necessary or advisable . . . and [Colonial’s] good faith determination as to the necessity or advisability of any such expense shall be final and conclusive upon Indemnitor. [Colonial] shall have the foregoing rights, irrespective of the fact that Indemnitor may have assumed, or offered to assume, the defense of [Colonial] upon such claim. . . . In any claim or suit hereunder, an itemized statement of the aforesaid loss and expense, sworn to by an office of [Colonial], or the vouchers or other evidence of disbursement by [Colonial], shall be prima facie evidence of the fact and extent of the liability hereunder of Indemnitor. Barbara, 221 Conn. App. at 360. Phoenix began work on the hotel project but from the start there were issues which ultimately resulted in litigation. Barbara, 221 Conn. App. at 344-45. The general contractor of the hotel project made claims on the bonds against Colonial in New York based on Phoenix’s alleged failure to perform (New York action), and Colonial brought an action against Phoenix and the Barbaras in Connecticut to enforce the indemnity agreement (indemnity action). Colonial ultimately settled all claims in the New York action over Phoenix’s objection, and the Barbaras brought an action against Colonial in Connecticut, asserting breach of contract and bad faith claims against Colonial in connection with its handling of the New York action and seeking to invalidate the indemnity agreement (Barbaras’ action). Barbara, 221 Conn. App. at 341. This matter is the Barbaras’ action. B. The Indemnity Action In the Indemnity Action, Colonial moved for summary judgment against the Barbaras on the first count of the amended complaint, breach of contract. Colonial Surety v. Phoenix, Docket No. UWY-CV-106045128, Doc. No. 141.00. In support of its Motion for Summary Judgment, Colonial filed affidavits from Wayne Nunziata and Attorney Steven Lapp, in addition to 29 exhibits. See Colonial Surety, Doc. No. 142. See also Colonial Surety, Doc. No. 167, pp. 6-8. James and Lina Barbara filed oppositions to the Motion for Summary Judgment in 3 the form of affidavits. See Colonial Surety, Doc. Nos. 158.00 and 159.00. The Barbaras each attached 18 exhibits to their opposition affidavits. Colonial Surety, Doc. Nos. 158.00 and 159.00. Colonial filed a reply memorandum which included an affidavit by Attorney Lapp and the 32 exhibits which had been filed in this matter. Colonial Surety, Doc. No. 160.00. The court heard oral arguments on March 8, 2021. This Court (Bellis, J.) granted summary judgment in favor of Colonial on the first count of the amended complaint.3 Colonial Surety, Doc. No. 167.00. This Court held that Colonial “satisfied the prima facie evidence clause in the indemnity agreement. The burden now shifts to the defendants to raise a genuine issue of material fact as to Colonial’s lack of good faith in making the payments for which it seeks indemnification.” Colonial Surety, Doc. No. 167.00, at 15. This Court noted that: the defendants’ claim of bad faith is based on Colonial’s alleged failure to raise several potential defenses against Gotham in a pre-answer motion to dismiss or motion for summary judgment rather than in its verified answer to Gotham’s complaint as affirmative defenses. By going forward with litigation and settling the Gotham lawsuit, the defendants argue, Colonial incurred additional unnecessary losses, costs, and expenses. The defendants also argue that Colonial settled the Gotham lawsuit in bad faith so that it could have future business with Gotham. Colonial Surety, Doc. No. 167.00, at 15-16. The decision set forth the potential defenses which the Barbaras claimed should have been raised in the New York action. Colonial Surety, Doc. No. 167.00, at 16. This Court addressed the Barbaras’ claims of bad faith in detail. This Court held that 3 Phoenix was defaulted for failure to appear. Colonial Surety, Doc. No. 102.10. Therefore the motion for summary judgment in the indemnity matter was directed only at the individual defendants in that action, Lina and James Barbara, who are the plaintiffs in this action. Colonial Surety, Doc. No. 167.00, p. 1 n. 1. 4 The defendants have not provided admissible evidence substantiating their assertion that Colonial, in bad faith, failed to file a pre-answer motion to dismiss and settled the Gotham lawsuit to obtain future business with Gotham, other than conclusory and speculative statements in their affidavits. Further, this assertion is not based on the defendants’ personal knowledge as required by Practice Book § 17-46. The defendants, therefore, have failed to submit evidence to demonstrate a genuine issue of material fact that Colonial acted with an improper motive or dishonest purpose in its handling of the claims in the Gotham lawsuit. Accordingly, the defendants have failed to raise a genuine issue of material fact as to Colonial’s good faith determination of the advisability and necessity of expenses it incurred in connection with the Gotham bonds. Colonial Surety, Doc. No. 167.00, at 28. This Court granted summary judgment on the first count of the indemnity action’s amended complaint. Colonial Surety, Doc. No. 167.00, at 28. Colonial subsequently withdrew the remaining counts and moved for judgment against the Barbaras and Phoenix. Colonial Surety, Doc. No. 176.00. On January 10, 2022, judgment entered against the Barbaras in the amount of $2,946,959.26, which included 10% prejudgment interest. Colonial Surety, Doc. 199.00, pp. 10-11.4 The judgment also awarded post-judgment interest at 10%. Colonial Surety, Doc. 199.00, p. 11. The Barbaras appealed that judgment to the Appellate Court. The Appellate Court affirmed that judgment in Barbara, 221 Conn. App. at 373. The Appellate Court agreed that “Colonial satisfied the prima facie evidence and right-to-settle provisions. . . .” Barbara, 221 Conn. App. at 361. Accordingly, the burden shifted to the Barbaras to raise a genuine issue of material fact as to whether Colonial acted in bad faith in incurring those expenses and/or settling the New York action. In opposing summary judgment, the Barbaras conceded that they failed to post collateral in accordance with paragraph 10 (V) of the indemnity agreement but claimed 4 Judgment entered against Phoenix pursuant to the default in the amount of $2,946,959.26, which included 10% prejudgment interest, and an award of 10% post- judgment interest. Colonial Surety, Doc. No. 194.10. 5 that Colonial acted in bad faith by unreasonably incurring expenses in the New York action and by settling Gotham’s claims and Phoenix’s affirmative claims out of self-interest for the sole purpose of garnering future business from Gotham. Barbara, 221 Conn. App. at 362.5 The Appellate Court then held that: During oral argument before this court, however, counsel for the Barbaras acknowledged that there is no evidence in the record suggesting, as they had argued in the trial court, that Colonial settled the New York action to garner future business from Gotham. For that reason, the Barbaras have abandoned their claim as to that alleged improper motive and, instead, argue that “[a] fair and reasonable fact finder” could find “that it was unreasonable for Colonial to incur [almost $1.5 million in expenses] without first testing [Gotham’s] claims through a motion to dismiss for failure to satisfy the [performance] bond’s conditions precedent” and “that Colonial settled the New York [action] solely to protect its own self-interest because it surrendered claims to Phoenix and then later took them back solely because [Gotham] told Colonial that it would not settle its performance bond claim without them.” Barbara, 221 Conn. App. at 364.6 The Appellate Court considered this case in light of PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279 (2004), as did this Court. Barbara, 221 Conn. App. 5 The Appellate Court noted that: [a]lthough Colonial is afforded broad discretion in handling any claims against Gotham bonds, the Barbaras had the right to assert control over the litigation pursuant to paragraph 10 (V) of the indemnity agreement. . . . Accordingly, the Barbaras had the option of notifying Colonial that they wanted Colonial to defend the claims against the Gotham bonds and simultaneously deposit collateral with Colonial sufficient to cover those claims, but they failed to do so. Barbara, 221 Conn. App. at 360-61. 6 The Appellate Court noted that Colonial challenged this new claim as unpreserved and therefore unreviewable. However, the Appellate Court held that “[w]e need not decide whether the Barbaras’ claim is properly characterized as a claim or argument because we conclude that they cannot prevail on the merits of it.” Barbara, 221 Conn. App. at 364 n. 19 (emphasis added). 6 at 365-67; Colonial Surety, Doc. No. 167, pp. 21-25. The Appellate Court first addressed the Barbaras’ claim that Colonial acted in bad faith in litigating the New York action without filing a preemptive motion to dismiss. Barbara, 221 Conn. App. at 367-370. The Appellate Court held that: Given the existence of issues of fact surrounding the performance bond conditions, and in light of the Barbaras’ admitted insolvency in their letter refusing Colonial’s demand for collateral, the Barbaras have failed to demonstrate that Colonial’s decision to settle the New York action, rather than moving to dismiss it, was an unreasonable exercise of the discretion Colonial is afforded under the indemnity agreement. Barbara, 221 Conn. App. at 370. Thus, both this Court and the Appellate Court held that Colonial was not unreasonable in litigating and settling the New York action. The Appellate Court then turned to the Barbaras’ claims that Colonial acted with an improper motive or a dishonest purpose. The Appellate Court held that Further undermining the Barbaras’ claim is the fact that they failed to present any evidence of a possible motivation that Colonial had to incur hundreds of thousands of dollars in unnecessary defense costs in the New York action is it thought a preemptive motion to dismiss would have been successful. Likewise, with regard to Colonial’s self-interested settlement, there is no evidence of an improper motive or a dishonest purpose. Barbara, 221 Conn. App. at 371 (emphasis added). The Appellate Court held that “Colonial’s settlement of the performance bond claim protected both itself and Phoenix from the possibility of a substantially larger judgment and further litigation costs.” Barbara, 221 Conn. App. at 371. “Furthermore, unlike the principal in PSE Consulting, Inc., the Barbaras had the option of posting collateral and instructing Colonial to defend the claims in the New York action but failed to do so.” Barbara, 221 Conn. App. at 372. On the claim that Colonial entered into the settlement in the New York action in its own self-interest, the Appellate Court held that “the Barbaras fail to recognize that self- 7 interest is not itself evidence of an improper motive.” Barbara, 221 Conn. App. at 372. Thus, although Colonial’s decision to exercise its rights under the indemnity agreement was motivated by self-interest, “it does not follow that the self- interested exercise of rights under a contract necessarily constitutes a per se violation of the implied covenant of good faith and fair dealing. Indeed, there must be something more than a self-interested settlement, but the “other evidence of improper motive” presented in PSE Consulting, Inc., is absent in the present case. Barbara, 221 Conn. App. at 372-73 (citations and quotations omitted) (emphasis in original). The Appellate Court held that this Court properly rendered summary judgment for Colonial. [T]he Barbaras introduced no evidence to support their allegations that Colonial acted with an improper motive or dishonest purpose in the New York action. The Barbaras presented no evidence that Colonial’s decision to settle the New York action, rather than attempting to have it dismissed, was made in bad faith. Barbara, 221 Conn. App. at 373. The Barbaras petitioned for certification to the Connecticut Supreme Court, which was denied. Colonial Surety v. Phoenix Contracting Group, 348 Conn. 924 (2023). C. Proceedings in this Case The Revised Complaint dated November 20, 2018 is the operative complaint in this case. In the First Count, Breach of Contract – Indemnity Agreement, the Barbaras claim that 21. Colonial should have filed a pre answer motion for dismissal in the New York action instead of answering because it would have been dismissed and Phoenix would not have incurred substantial expenses. 22. By doing this Colonial materially breached the [indemnity agreement] by electing the course of action that would incur substantial expenses that would neither be necessary or advisable. Barbaras v. Colonial Surety, Doc. No. 129.00, p. 4. The Barbaras allege that “[b]y doing 8 this Colonial could cut a deal with Gotham on future work or at least earn their appreciation.” Barbaras v. Colonial Surety, Doc. No. 129, p. 4, ¶ 24. The Barbaras further claim that “Colonial had the option of moving for summary judgment based upon [Gotham’s] failure to meet the preconditions of the Bond instead of engaging in years of discovery practice which were not necessary or advisable.” Colonial Surety, Doc. No. 129, p. 4, ¶ 25. The Barbaras claim that Colonial ultimately settled the underlying cases “for the promise of future business.” Barbaras v. Colonial Surety, Doc. No. 129, p. 5, ¶ 32. The Barbaras specifically plead the following claims of breach of the indemnity agreement: 34. Colonial materially breached section 4(B) of the [Indemnity Agreement] by answering in the New York action rather than by a pre answer motion for dismissal which would have been the advisable and economical action. 35. Colonial materially breached section 4(B) of the [Indemnity Agreement] by continuing to engage in substantial discovery which was unnecessary and inadvisable instead of moving for summary judgment on the action in New York. 36. Colonial materially breached section 4(B) of the [Indemnity Agreement] by settling the New York litigation for $100,000 and dismissal of Phoenix’s affirmative claims after it became evident that it’s [sic] case had become stronger. Barbaras v. Colonial Surety, Doc. No. 129, p. 6. The Barbaras incorporate all of the allegations of the First Count into the Second Count, Breach of Implied Contract of Good Faith of [Indemnity Agreement]. Colonial Surety, Doc. No. 129, p. 6, ¶ 41. They allege that Colonial engaged in the New York litigation and incurred fees in order to retain the right to settle Phoenix’s claims in order to obtain an advantage with Gotham. Colonial Surety, Doc. No. 129, pp. 6-7, ¶¶ 44-51. The Barbaras then specifically plead the following claims of breach of the implied covenant of good faith and fair dealing: 9 54. Colonial breached the implied covenant of good faith by failing to make a pre answer motion to dismiss the New York litigation. I [sic] wanted to remain in the New York litigation so that it could make a back door deal with Gotham. 55. Colonial breached the implied covenant of good faith by engaging in substantial discovery for years instigated by its attorneys instead of moving for summary judgment to ensure that it would be able to make a back door deal with Gotham in the New York litigation. 56. Colonial breached the implied covenant of good faith by settling the New York litigation paying Gotham $100,000 and dismissing Phoenix’s over $5 million of affirmative claims instead of moving for summary judgment. Barbaras v. Colonial Surety, Doc. No. 129, p. 8. The Barbaras incorporate all of the allegations of the First and Second Counts into the Third Count, Breach of the Performance Bond. Colonial Surety, Doc. No. 129, p. 9, ¶64. The Barbaras once again allege that “the New York litigation should have been dismissed against Colonial had they made a pre answer motion to dismiss or motion for summary judgment.” Barbaras v. Colonial Surety, Doc. No. 129, p. 10, ¶ 72. They then specifically allege that “Colonial breached the terms of the Bond by not moving for dismissal of the New York litigation against Colonial.” Barbaras v. Colonial Surety, Doc. No. 129, p. 10, ¶ 74. The Barbaras incorporate all of the allegations of the First, Second, and Third Counts into the Fourth Count, seeking declaratory judgment. Barbaras v. Colonial Surety, Doc. No. 129, p. 11, ¶ 85. Specifically, the Barbaras allege that “Colonial materially breached the [Indemnity Agreement] by expending so much money on litigation in New York it could have gotten out of.” Barbaras v. Colonial Surety, Doc. No. 129, p. 12, ¶ 91. The Barbaras further allege that “Colonial breached the [Indemnity Agreement] so that it could use another portion of the [Indemnity Agreement] to settle Phoenix’s claim with GGS for future business.” Barbaras v. Colonial Surety, Doc. No. 129, p. 12, ¶ 93. The 10 Barbaras ask that the Indemnity Agreement be declared void due to their allegations of Colonial’s bad faith and breaches of the Indemnity Agreement. Barbaras v. Colonial Surety, Doc. No. 129, p. 13, ¶ 98. Colonial previously moved for summary judgment in this action, claiming that this action was precluded by collateral estoppel and/or res judicata based upon the decision in the New York action that approved the settlement. Barbaras v. Colonial Surety, Doc. No. 155. This Court denied that motion. Barbaras v. Colonial Surety, Doc. No. 171. Colonial appealed and the Appellate Court affirmed that decision on the grounds that the Barbaras did not have an adequate opportunity to litigate their claims in the New York action. Barbara, 221 Conn. App. at 385-86. Of note, in affirming the denial of the motion for summary judgment in this case on the basis of res judicata and/or collateral estoppel based upon the New York action, the Appellate Court observed that “[o]f course, we recognize that, because the Barbaras’ bad faith claims were litigated and decided adversely to the Barbaras in the indemnity action, on remand, Colonial may move for summary judgment in the Barbaras’ action on the basis of the preclusive effect of the judgment in the indemnity action.” Barbara, 221 Conn. App. at 386 n. 26. II. Argument Summary judgment is proper where “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” P.B. § 17-49. “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . .” Buell Industries v. Greater New York 11 Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002). Summary judgment is a proper forum for resolving res judicata and collateral estoppel claims. “Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment was the appropriate method for resolving a claim of res judicata.” Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 712 (1993). See also Stein v. Horton, 99 Conn. App. 477 (2007) (affirming summary judgment on res judicata basis); Joe's Pizza v. Aetna Life & Casualty Co., 236 Conn. 863, (1996) (same); Virgo v. Lyons, 209 Conn. 497 (1988) (same). There are no genuine issues of material fact. Colonial is entitled to judgment on all four counts of the revised complaint as a matter of law based on res judicata and/or collateral estoppel. A. Res Judicata Bars Plaintiffs’ Claims. “[R]es judicata provides that a valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties upon the same claim or demand.” Weiss v. Weiss, 297 Conn. 446, 459 (2010) (citations, quotations and alterations omitted) (affirming summary judgment on basis of res judicata). “Res judicata or claim preclusion expresses no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.” Wheeler v. Beachcroft, LLC, 320 Conn. 146, 156-58 (2016) (citations and quotations omitted). The doctrine is but a manifestation of the recognition that endless litigation leads to confusion or chaos. . . . If the same cause of action is again sued on, the judgment is a bar to any claims relating to the cause of action which were actually made or might have been made. Wade's Dairy, Inc. v. Town of Fairfield, 181 Conn. 556, 559 (1980) (citations omitted). 12 See also Powell v. Infinity Insurance Co., 282 Conn. 594, 600 (2007). “Where a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding.” Weiss, 297 Conn. at 459-60 (citation, quotations and alterations omitted; emphasis in original). “Res judicata bars the relitigation of claims actually made in the prior action as well as claims that might have been made. . . . Thus res judicata prevents reassertion of the prior claim regardless of what additional or different evidence or legal theories might be advanced in support of it.” Wheeler, 320 Conn. at 157 (citations and quotations omitted; emphasis added). [F]or res judicata to apply, four elements must be met: (1) the judgment must have been rendered on the merits by a court of competent jurisdiction; (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. Wheeler, supra, at 156–57 (citations omitted). 1. The Colonial Surety judgment was rendered on the merits by courts of competent jurisdiction. The Barbaras did not contest the jurisdiction of the Trial Court or Appellate Court to determine the issues in the Indemnity Action. Nor can they. The judgment in the Indemnity Action in favor of Colonial was rendered on the merits of both Colonial’s claims and the Barbaras’ defenses. “Traditionally, a judgment is on the merits when it amounts to a decision as to the respective rights and liabilities of the parties, based on the ultimate fact or state of facts disclosed by the pleadings or evidence, or both, and on which the right of recovery depends. . . .” Santorso v. Bristol Hospital, 308 Conn. 338, 348 (2013) (citation and quotations omitted). In Colonial Surety, this Court adjudicated Defendant’s rights under the Indemnity Agreement. 13 In order to resolve the question of the enforcement of the Indemnity Agreement, this Court, and the Appellate Court, necessarily had to review and resolve the defenses raised by the Barbaras contesting the enforceability of the Indemnity Agreement. The judgment was based on the parties’ briefing, affidavits, and voluminous exhibits. This Court’s judgment, and the Appellate Court affirmance of that decision, expressly addressed on the merits the defenses raised by the Barbaras. The Colonial Surety v. Phoenix matter adjudicated the claims made in defense of the Motion for Summary Judgment on the merits. 2. Plaintiffs were parties in the Colonial Surety matter. The Barbaras, plaintiffs here, were defendants in the Colonial Surety v. Phoenix matter. 3. Plaintiffs had an adequate opportunity to fully litigate their claims in the Colonial Surety matter. In the Colonial Surety matter, the Barbaras had more than an adequate opportunity to litigate their claims. The Barbaras fully litigated their claims and arguments in their oppositions to the Motion for Summary Judgment. As discussed above, and as detailed by this Court, the Barbaras’ affidavits in opposition included legal authorities and voluminous documentary evidence. See Colonial Surety, Doc. Nos.158.00 and 159.00. The Barbaras directly and fully participated in the presentation of their claims and defenses. As the Barbaras fully litigated their claims in opposition to the Motion for Summary Judgment and on appeal, they necessarily had an adequate opportunity to do so. See Couloute v. Board of Education of Town of Glastonbury, 204 Conn. App. 120, 131-32, cert. denied, 336 Conn. 946 (2021). 14 4. Plaintiffs allege the same claims and demands in this action as they raised in the Colonial Surety matter. Res judicata applies to the resolution of all of the claims addressed in the judgment, as well as claims that could have been raised. The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. Wade's Dairy, 181 Conn. at 559. A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. Even 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. Wade's Dairy, 181 Conn. at 560 (citations omitted). “Thus, it is generally held that a matter which is available as a defense to an action at law becomes res judicata by the judgment rendered therein, and may not be made the predicate of equitable relief.” Wade's Dairy, 181 Conn. at 560. See also DeMilo & Co. v. Commissioner of Motor Vehicles, 233 Conn. 281 (1995) (holding res judicata barred plaintiff’s claims where plaintiff could have raised the same claims as defenses in a separate action by defendant to enforce its rights under a judgment; plaintiff’s prosecution of the claims was barred as, if successful, it would nullify the prior judgment or impair defendant’s rights); Krondes v. Norwalk Savings Society, 53 Conn. App. 102, 119-20 (1999) (affirming directed verdict for defendant on res judicata grounds where plaintiff’s bad faith claim was previously raised as a defense and unsuccessfully litigated in a prior action). Applying the transactional test, the Barbaras’ claims in this action arise from the 15 same “factual underpinnings” as the Barbaras’ claims which were fully and fairly litigated in Colonial Surety. There is no difference in the alleged facts, events, and transactions underlying Plaintiffs’ oppositions to Colonial’s claim indemnification in the Motion for Summary Judgment and Plaintiffs’ claims in their Revised Complaint. When opposing the Motion for Summary Judgment in the Colonial Surety matter, the Barbaras expressly alleged that Colonial acted in bad faith and in breach of the Indemnity Agreement. They aggressively litigated those claims, seeking denial of the Motion for Summary Judgment on the same bases that are claimed in this action. For instance, in Lina Barbara’s Opposition to Colonial’s Motion for Summary Judgment in the Colonial Surety matter, Ms. Barbara stated that: Basically, in this action Colonial Surety Company (“Colonial”) is suing Phoenix and the Barbaras under the indemnity agreement to recover monies it expended in bad faith, with improper motive by remaining in a lawsuit in New York City (“New York litigation”) litigating the New York litigation and settling it paying money and dismissing Phoenix’s affirmative claims when it could have gotten out and had the case dismissed against it at the New York litigation’s inception. Colonial spent in excess of $1.6 million unnecessarily and in bad faith so that Colonial could obtain a promise of future business from a top construction manager in the New York City market. Colonial Surety, Doc. No. 159.00, pp. 1-2, ¶ 3. See also James Barbara’s Opposition to Colonial’s Motion for Summary Judgment. Colonial Surety, Doc. No. 158.00, pp. 1-2, ¶ 3 (setting forth identical claims). Ms. Barbara’s Opposition further argued that: Colonial’s motion should be denied as there are questions of fact that remain which should preclude the granting of summary judgment in Colonial’s favor, such as whether the fees incurred by Colonial were in it’s [sic] good faith belief, “necessary” or “advisable”. If they were not, Colonial should not be granted summary judgment. The Barbaras also claim that there is a triable issue of fact as to whether or not Colonial had an improper motive in the way it handled the New York litigation. 16 Colonial Surety, Doc. No. 159.00, p. 4, ¶ 4. See also James Barbara’s Opposition to Colonial’s Motion for Summary Judgment. Colonial Surety, Doc. No. 158.00, p. 4, ¶ 4 (setting forth identical claims). Ms. Barbara further claimed that: Colonial knew right from the start of the New York litigation that it had no liability to GGC under the performance bond yet it remained in the New York litigation instead of making a pre answer motion for dismissal because it wanted to cut a deal with Gotham for future business. Colonial Surety, Doc. No. 159.00, p. 6, ¶ 19. Colonial Surety, Doc. No. 158.00, p. 6, ¶ 19 (setting forth identical claims). See also Colonial Surety, Doc. Nos. 158.00 and 159.00, ¶¶ 17- 18, 22, 28-29, 32-33, 34-39, 48-49, n. 6. The Barbaras claimed that “Colonial’s motion for summary judgment should be denied as there remain questions of fact as to whether the damages being sought constitute necessary or advisable expenses in Colonial’s good faith belief. It is the Barbaras’ contention that the damages were not necessary or advisable.” Colonial Surety, Doc. No. 159.00, pp. 11-12, ¶ 53. See also Colonial Surety, Doc. No. 159.00, pp. 11-12, ¶ 53. These are the same claims and demands that are made in this action. See above at pp. 8-10. These are also the same claims and demands which were resolved by this Court. See above at pp. 4-5. And these are the same claims and demands which were also resolved by the Appellate Court when it affirmed this Court’s grant of summary judgment. See above at pp. 5-7. The judgment in Colonial Surety satisfies all four requirements for the application of res judicata to preclude this action. Unlike collateral estoppel, under which preclusion occurs only if a claim actually has been litigated, under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim or any claim based 17 on the same operative facts that might have been made. Smith v. Bl Companies, 185 Conn. App. 656, 663-64 (2018) (citations, quotations and alterations omitted; emphasis added). “Thus, when the facts underlying the claims are the same, res judicata may apply.” Smith, 185 Conn. App. at 668. Here the facts underlying the claims are the same, and the claims are the same. As the claims alleged here are the same as those necessarily resolved after full litigation by this Court and the Appellate Court, res judicata applies and precludes this action. 5. Policy favors preclusion The policies underlying res judicata favor preclusion in this matter. “The purposes of res judicata are promoting judicial economy, minimizing repetitive litigation, preventing inconsistent judgments and providing repose to parties.” Smith, 185 Conn. App. at 669 (quotations omitted) (finding the policies underlying res judicata favor preclusion where litigation had been pending six years). “[T]he counter-vailing interest in bringing litigation to a close is strong.” Smith, 185 Conn. App. at 670. Application of res judicata to this action will promote judicial economy and minimize repetitive litigation. The Colonial Surety action was commenced in 2010. The settlement of the New York litigation was in 2015. This action was commenced six years ago.7 The Barbaras raised these claims before the court in the New York action and the settlement 7 Phoenix has an action pending against Colonial in New York Supreme Court, Phoenix Contracting Group, Inc. v. Colonial Surety Co., Index No. 651271/2017, which was commenced in March of 2017 by Attorney Tang, also known as Ms. Barbara, who is licensed to practice law in New York. That action makes the same claims of breach of the Indemnity Agreement against Colonial, including breach for failure to file a pre answer dismissal and engaging in discovery, and for settling the New York action and dismissing Phoenix’s affirmative claims. Colonial will be filing a motion for summary judgment in New York on the basis of res judicata and/or collateral estoppel. 18 was enforced anyway. The Barbaras raised and actively litigated their claims in Colonial Surety. This Court and the Appellate Court held that there was no basis for the claims. It is time for the litigation between these parties to be brought to a close. Application of res judicata to this action through this Motion for Summary Judgment is necessary to prevent inconsistent judgments. This Court, as affirmed by the Appellate Court, found no basis for the claims of bad faith made by the Barbaras. Permitting this action to continue, which raises the same claims, raises the possibility of inconsistent judgments on those same claims. Policy favors application of res judicata in this matter. Res judicata also precludes a party from pursuing claims in a second action which are premised on a cause of action which that party could have raised as a counterclaim or defenses in a prior action, if the successful prosecution of the second action would nullify the judgment in the prior action or impair rights established in that action. DeMilo & Co. v. Commissioner of Motor Vehicles, 233 Conn. 281, 293–94 (1995) (applying res judicata to defenses that should have been raised). The claims plead in the Revised Complaint are the same as those raised in Colonial Surety. Even if the form of the claims were different, res judicata bars the Barbaras from relitigating the same claims in this action. Summary judgment should enter for Colonial on all counts B. Collateral Estoppel Also Bars Plaintiffs’ Claims. Collateral estoppel also precludes the Barbaras from relitigating claims actually and necessarily decided by this Court and the Appellate Court in Colonial Surety. As all of the claims alleged in this matter were actually and necessarily decided by this Court and the Appellate Court, summary judgment should enter for Colonial on all counts. 19 Collateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim. An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. Elder v. Kauffman, 204 Conn. App. 818, 826 (2021) (citation and alterations omitted). “[A] party may assert the doctrine of collateral estoppel successfully when three requirements are met: [1] [t]he issue must have been fully and fairly litigated in the first action, [2] it must have been actually decided, and [3] the decision must have been necessary to the judgment.” Wiacek Farms, LLC v. City of Shelton, 132 Conn. App. 163, 169 (2011). The claims raised in this case were fully and fairly litigated, and necessarily and actually decided by this Court in Colonial Surety. As discussed above, the legal and factual issues underlying Plaintiffs’ claims in this action are the same as those raised in the Barbaras’ oppositions to the Motion for Summary Judgment. The Barbaras’ oppositions to the Motion for Summary Judgment argued that Colonial was not entitled to enforce the Indemnity Agreement because Colonial litigated and then settled the New York action in bad faith. Specifically, as detailed above, the Barbaras claimed that Colonial failed to have pursued its claims in the New York action by a pre answer motion to dismiss or a motion for summary judgment, instead of engaging in discovery, and then entered into the Settlement Agreement in bad faith because they were seeking to obtain favor with Gotham. See above at pp. 4-5. Those claims were fully and fairly litigated. The Barbaras presented affidavits and extensive evidence to the Court for its consideration. Colonial Surety, Doc. Nos. 158.00 and 159.00; 167.00, pp. 8-9. In order to determine whether Colonial was entitled to its 20 expenses in the indemnity action, this Court necessarily resolved the Barbaras’ question of whether Colonial acted in good faith when it litigated and settled the New York litigation. This Court held that: The defendants, therefore, have failed to submit evidence to demonstrate a genuine issue of material fact that Colonial acted with an improper motive or dishonest purpose in its handling of the claims in the Gotham lawsuit. Accordingly, the defendants have failed to raise a genuine issue of material fact as to Colonial’s good faith determination of the advisability and necessity of expenses it incurred in connection with the Gotham bonds. Colonial Surety, Doc. No 167.00, p. 28. The Appellate Court affirmed this Court’s grant of summary judgment, also addressing in detail the defenses raised by the Barbaras to Colonial’s Motion for Summary Judgment. The Appellate Court noted that the Barbaras “claimed that Colonial acted in bad faith by unreasonably incurring expenses in the New York action and by settling Gotham’s claims and Phoenix’s affirmative claims out of self- interest for the sole purpose of garnering future business from Gotham.” Barbara, 221 Conn. App. at 362. “During oral argument before [the Appellate] court, however, counsel for the Barbaras acknowledged that there is no evidence in the record suggesting, as they had argued in the trial court, that Colonial settled the New York action to garner future business from Gotham.” Barbara, 221 Conn. App. at 364. The Appellate Court then held that “the Barbaras have failed to demonstrate that Colonial’s decision to settle the New York action, rather than moving to dismiss it, was an unreasonable exercise of the discretion Colonial is afforded under the indemnity agreement.” Barbara, 221 Conn. App. at 370. Finally, the Appellate Court held that “with regard to Colonial’s self-interested settlement, there is no evidence of an improper motive or a dishonest purpose.” Barbara, 221 Conn. App. at 371. As all four counts of the Barbaras’ Revised Complaint rely on issues which have 21 been fully and fairly litigated, and actually and necessarily decided, summary judgment is properly granted on all four counts on the basis of collateral estoppel. CONCLUSION As the Appellate Court noted, as “the Barbaras’ bad faith claims were litigated and decided adversely to the Barbaras in the indemnity action, on remand, Colonial may move for summary judgment in the Barbaras’ action on the basis of the preclusive effect of the judgment in the indemnity action.” Barbara, 221 Conn. App. at 386 n. 26. All four counts of the Barbaras’ claims in this action are barred by both the doctrine of res judicata and/or the doctrine of collateral estoppel. DEFENDANT, COLONIAL SURETY COMPANY By: /s/ Karen L. Dowd (Juris No. 404685) Karen L. Dowd McElroy, Deutsch, Mulvaney & Carpenter, LLP One State Street - 14th Floor Hartford, CT 06103-3102 Tel. No. (860) 241-2635 Fax No. (860) 522-2796 kdowd@mdmc-law.com 22 CERTIFICATION The undersigned herby certified that a copy of the foregoing was served via first class mail, postage prepaid, and via electronic mail, pursuant to P.B. 10-13 on January 19, 2024, to all counsel and self-represented parties of record as follows: Lina T. Barbara 420 Gulf Street Milford CT 06460 James E. Barbara 420 Gulf Street Milford CT 06460 /s/ Karen L. Dowd (Juris No. 404685) Karen L. Dowd 23 EXHIBIT A EXHIBIT B Barbara v. Colonial Sur. Co. Appellate Court of Connecticut April 3, 2023, Argued; August 22, 2023, Officially Released. AC 44836, AC 45267 Reporter 221 Conn. App. 337 *; 2023 Conn. App. LEXIS 201 ** June 23, 2021) JAMES E. BARBARA ET AL. v. COLONIAL SURETY COMPANY;COLONIAL SURETY Disposition: Affirmed. COMPANY v. PHOENIX CONTRACTING GROUP ET AL. Syllabus Subsequent History: Appeal denied by Colonial Sur. Co. v. Phx. Contr. Grp., 2023 Conn. LEXIS In two separate actions arising out of a hotel 258 (Conn., Nov. 28, 2023) construction project in New York, C Co., a Prior History: [**1] Action, in the first case, to commercial surety company, in one action, sought recover damages for, inter alia, breach of contract, to enforce an indemnity agreement against P Co. and for other relief, brought to the Superior Court and its individual principals, J and L, and, in a in the judicial district of Ansonia-Milford, and second action, the individual principals sought to action, in the second case, for, inter alia, invalidate [**2] the indemnity agreement, indemnification, and for other relief, brought to the asserting breach of contract and bad faith claims. P Superior Court in the judicial district of New Co., as a subcontractor, executed a trade Haven, where the named defendant was defaulted subcontract with G Co., the general contractor for for failure to appear; thereafter, both cases were the hotel project, to supply and install exterior transferred to the Superior Court in the judicial window