Town of Glastonbury v. Sakon , 172 Conn. App. 646 ( 2017 )

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TOWN OF GLASTONBURY v. JOHN ALAN
SAKON ET AL.
(AC 38413)
Alvord, Prescott and Bear, Js.
Argued February 8, 2017—officially released May 2, 2017
(Appeal from Superior Court, judicial district of
Hartford, Robaina, J. [motion to strike]; Vacchelli, J.
[motion to strike and judgment of nonsuit])
John Alan Sakon, self-represented, the appellant
(named defendant).
Latonia C. Williams, with whom, on the brief, was
Eric S. Goldstein, for the appellee (plaintiff).
Opinion
PER CURIAM. The defendant John Alan Sakon
appeals from the orders of the trial court striking his
special defenses and from the judgment of nonsuit
entered with respect to his counterclaims.1 On appeal,
the defendant claims that the court improperly granted
the plaintiff’s motion to strike his original and his substi-
tute special defenses and counterclaims. The appeal is
dismissed in part, and the judgment of the trial court
is affirmed in part.
The defendant is the record owner of two properties
in Glastonbury. The defendant failed to pay the property
taxes on his properties for the years 2009, 2010, 2011,
2012, and 2013. As a result, the plaintiff, the town of
Glastonbury, assessed tax liens against the defendant’s
properties for the unpaid real property taxes (tax liens).
On November 6, 2012, the plaintiff commenced this
action to foreclose on the 2009, 2010, and 2011 tax liens
for the defendant’s two properties by filing a two count
complaint, in which each count pertained to one of the
defendant’s two properties. On August 27, 2013, the
plaintiff filed a motion for default for failure to plead,
which was granted on September 4, 2013. On December
10, 2013, the plaintiff filed a motion for judgment of
foreclosure by sale. On December 18, 2013, the defen-
dant filed his answer to the plaintiff’s complaint, which
contained six special defenses and seven counterclaims
(original special defenses and counterclaims). On Janu-
ary 29, 2014, the defendant filed a motion to open the
default, which was granted on February 10, 2014. On
March 12, 2014, the plaintiff filed a motion to strike
the original special defenses and counterclaims (first
motion to strike).
On August 13, 2014, the plaintiff filed an amended
two count complaint, in which it additionally sought
to foreclose on the 2012 and 2013 tax liens for the
defendant’s two properties and clarified its description
of the defendant’s properties (operative complaint).
On November 21, 2014, the court, Robaina, J.,
granted the plaintiff’s first motion to strike. On Decem-
ber 10, 2014, the defendant filed a revised motion for
reconsideration of the court’s order granting the plain-
tiff’s first motion to strike. On December 11, 2014, the
defendant filed an amended answer in response to the
operative complaint, which contained special defenses
and counterclaims that were substantially similar to
those raised in his original answer (amended special
defenses and counterclaims). On December 24, 2014,
the plaintiff filed a motion to strike the defendant’s
amended special defenses and counterclaims (second
motion to strike).
On December 29, 2014, the court denied the defen-
dant’s revised motion for reconsideration of the court’s
order granting the plaintiff’s first motion to strike. On
January 5 and 6, 2015, and February 4, 2015, the defen-
dant filed motions for extension of time to file a substi-
tute pleading pursuant to Practice Book § 10-44.2 On
February 11, 2015, the defendant filed a substitute
answer, in which he raised four special defenses and
two counterclaims (substitute special defenses and
counterclaims). On March 16, 2015, the court concluded
that the second motion to strike was moot because
‘‘[t]he operative substitute special defenses and coun-
terclaims are those filed on February 11, 2015.’’
On March 31, 2015, the plaintiff filed a motion to
strike the substitute special defenses and counterclaims
(third motion to strike) and a motion for judgment of
nonsuit as to the counterclaims. On July 9, 2015, the
court, Vacchelli, J., applying the law of the case doc-
trine, granted the third motion to strike because the
substitute special defenses and counterclaims ‘‘all
attempt the exact same challenges previously ruled to
be legally insufficient’’ by the court on November 11,
2014. The court also entered a default against the defen-
dant as to his special defenses and a judgment of nonsuit
against the defendant and in favor of the plaintiff with
respect to the defendant’s counterclaims.
On July 24, 2015, the plaintiff moved for summary
judgment as to liability on both counts of the operative
complaint. On July 27, 2015, the defendant filed a
motion for reconsideration of the court’s order granting
the plaintiff’s third motion to strike, which was denied
on August 12, 2015. On September 25, 2015, the defen-
dant filed the present appeal, in which he challenges the
orders of the court striking the original and substitute
special defenses and counterclaims.3
On January 4, 2016, the court granted the plaintiff’s
motion for summary judgment as to liability. On July
13, 2016, the plaintiff filed a motion for judgment of
foreclosure by sale, which the court granted on August
8, 2016.
I
We first consider the portion of the defendant’s
appeal that pertains to the court’s granting of the plain-
tiff’s motions to strike the original and substitute special
defenses, which we dismiss for lack of a final judgment.
‘‘The lack of a final judgment implicates the subject
matter jurisdiction of an appellate court to hear an
appeal. A determination regarding . . . subject matter
jurisdiction is a question of law . . . [and, therefore]
our review is plenary.’’ (Internal quotation marks omit-
ted.) Canty v. Otto, 304 Conn. 546, 554, 41 A.3d 280
(2012).
‘‘The jurisdiction of the appellate courts is restricted
to appeals from judgments that are final. . . . The pol-
icy concerns underlying the final judgment rule are
to discourage piecemeal appeals and to facilitate the
level. . . . The appellate courts have a duty to dismiss,
even on [their] own initiative, any appeal that [they
lack] jurisdiction to hear.’’ (Citations omitted; internal
quotation marks omitted.) Liberty Mutual Ins. Co. v.
Lone Star Industries, Inc., 290 Conn. 767, 793–94, 967
A.2d 1 (2009). ‘‘[T]he measuring point for determining
if an appeal is from a final judgment is when the appeal
is filed.’’ Tyler v. Tyler, 163 Conn. App. 594, 617, 133
A.3d 934 (2016); see also Zamstein v. Marvasti, 240
Conn. 549, 554–557, 692 A.2d 781 (1997).
‘‘The granting of a motion to strike a special defense
is not a final judgment and is therefore not appealable.
. . . The striking of special defenses neither terminates
a separate proceeding nor so concludes the rights of the
parties that further proceedings cannot affect them.’’
(Internal quotation marks omitted.) JP Morgan Chase
Bank, Trustee v. Rodrigues, 109 Conn. App. 125, 129–30,
952 A.2d 56 (2008); accord Egri v. Foisie, 83 Conn. App.
243, 249, 848 A.2d 1266, cert. denied, 271 Conn. 931,
859 A.2d 930 (2004). In the present case, the defendant
filed his appeal before the court rendered a final judg-
ment in the plaintiff’s tax lien foreclosure action.
Accordingly, we cannot consider the portion of the
defendant’s appeal that pertains to the striking of his
special defenses.
The defendant nevertheless contends that this court
has jurisdiction over these claims because the judgment
of nonsuit entered after the court struck his special
defenses constitutes a final judgment. The defendant
is correct that a judgment of nonsuit is an appealable
final judgment. Null v. Jacobs, 165 Conn. App. 339, 354,
139 A.3d 709 (2016). In its July 9, 2015 order, however,
the court did not enter a judgment of nonsuit with
respect to the defendant’s special defenses. Instead,
the court entered a default against the defendant with
respect to his special defenses and a judgment of non-
suit only with respect to his counterclaims.
The defendant also argues that this court has jurisdic-
tion over his claims pertaining to his special defenses
because his first special defense in the substitute
answer4 challenged the subject matter jurisdiction of
the court. The defendant is correct that the parties
or the court may raise the question of subject matter
jurisdiction at any time. Fairfield Merrittview Ltd.
Partnership v. Norwalk, 320 Conn. 535, 548, 133 A.3d
140 (2016). Nevertheless, to hear and to determine the
defendant’s claim that the trial court lacked subject
matter jurisdiction over the tax lien foreclosure action,
this court must first have subject matter jurisdiction
over the defendant’s appeal. As we previously stated,
however, we do not have subject matter jurisdiction
over that portion of the defendant’s appeal that pertains
to the court’s granting of the plaintiff’s motions to strike
his special defenses.
Accordingly, the portion of the defendant’s appeal
that pertains to the court’s granting of the plaintiff’s
motions to strike his special defenses is dismissed.
II
We next address the defendant’s claim that the court
abused its discretion by striking the original and substi-
tute counterclaims. The plaintiff argues that the defen-
dant waived his right to challenge the court’s decision to
strike his original counterclaims by filing the substitute
counterclaims. Additionally, the plaintiff argues that
the court did not abuse its discretion by striking the
substitute counterclaims because they challenge the
enactment and enforcement of the plaintiff’s zoning
regulations rather than the making, validity, or enforce-
ment of the tax liens. We agree with the plaintiff.
A
The defendant first claims that the court, Robaina,
J., improperly granted the plaintiff’s first motion to
strike his original counterclaims. We conclude that the
defendant waived his right to challenge the court’s strik-
ing of the original counterclaims by filing the substi-
tute counterclaims.
Practice Book § 10-44 provides in relevant part:
‘‘Within fifteen days after the granting of any motion
to strike, the party whose pleading has been stricken
may file a new pleading . . . .’’ ‘‘This court has stated
that [a]fter a court has granted a motion to strike, [a
party] may either amend his pleading or, on the render-
ing of judgment, file an appeal. . . . The choices are
mutually exclusive [as] [t]he filing of an amended plead-
ing operates as a waiver of the right to claim that there
was error in the sustaining of the [motion to strike] the
original pleading. . . . Stated another way: When an
amended pleading is filed, it operates as a waiver of
the original pleading. The original pleading drops out
of the case and although it remains in the file, it cannot
serve as the basis for any future judgment, and previous
rulings on the original pleading cannot be made the
subject of appeal.’’ (Citation omitted; internal quotation
marks omitted.) Ed Lally & Associates, Inc. v. DSBNC,
LLC, 145 Conn. App. 718, 745–46, 78 A.3d 148, cert.
denied, 310 Conn. 958, 82 A.3d 626 (2013).
In the present case, the defendant filed his original
answer, special defenses, and counterclaims. The plain-
tiff thereafter filed its first motion to strike, which the
court subsequently granted. In response, the defendant
filed a motion for reconsideration. While the motion
for reconsideration was pending, the defendant filed
an amended answer in response to the operative com-
plaint, in which he alleged special defenses and counter-
claims that were substantially similar to those raised
in the original answer. Approximately two weeks later,
the court denied the defendant’s motion for reconsider-
ation. Thereafter, the defendant filed motions for exten-
sion of time specifically to file a substitute pleading
pursuant to Practice Book § 10-44.5 The motions were
granted and the defendant subsequently filed the substi-
tute answer, in which he reformulated his special
defenses and counterclaims.
By exercising his right pursuant to Practice Book
§ 10-44 to file the substitute counterclaims in response
to the court’s denial of his revised motion for reconsid-
eration of the plaintiff’s first motion to strike, the defen-
dant waived his right to claim that the court erred in
granting the first motion to strike.
B
The defendant also claims that the court, Vacchelli,
J., improperly granted the plaintiff’s third motion to
strike his substitute counterclaims. In particular, the
defendant argues that the court misapplied the law of
the case doctrine. We disagree.
The following additional facts are relevant to this
claim. In his original answer, the defendant raised seven
counterclaims. The essence of those claims was that
the plaintiff’s enactment and enforcement of its zoning
regulations deprived him of the ability to use his proper-
ties, thereby violating his state and federal constitu-
tional rights.6 On November 21, 2014, the court,
Robaina, J., granted the first motion to strike, in which
the plaintiff argued that the original counterclaims were
legally insufficient. The court in its memorandum of
decision agreed with the plaintiff that the original coun-
terclaims were legally insufficient because, although
‘‘the plaintiff’s enforcement of the zoning regulations
relates to the properties it seeks to foreclose upon, it
does not relate to the making, validity, or enforcement
of the tax liens themselves. The ability of the plaintiff
to enforce the tax liens is not dependent on the alleged
wrongful enforcement of the zoning regulations.’’
The defendant thereafter filed the substitute answer,
in which he alleged two counterclaims. The first substi-
tute counterclaim alleges that the plaintiff ‘‘sought to,
under the color or authority of its regulations . . . dis-
criminate between developments similarly situated’’
and, in violation of his constitutional rights, prevented
him from using his properties. The second substitute
counterclaim alleges that the plaintiff ‘‘abused the pro-
cess’’ by ‘‘prosecuting [him] for the tax(es) and creating
the lien(s) after depriving [him] of his property rights
guaranteed by the Constitution and laws.’’ In response,
the plaintiff filed its third motion to strike, arguing that
the substitute counterclaims, like the original counter-
claims, were legally insufficient. On July 9, 2015, the
court, applying the law of the case doctrine, granted the
third motion to strike. The court reasoned that although
‘‘[t]he new special defenses and counterclaims contain
new language and, in part, arguably different legal theo-
ries . . . they all attempt the exact same challenges
previously ruled to be legally insufficient. Judge Robai-
na’s decision was not clearly erroneous, nor would it
work a manifest injustice if followed. Therefore, it is
the law of the case.’’
We begin with the law and standards of review that
govern our analysis. Practice Book § 10-10 provides in
relevant part that ‘‘[i]n any action for legal or equitable
relief, any defendant may file counterclaims against any
plaintiff . . . provided that each such counterclaim
. . . arises out of the transaction or one of the transac-
tions which is the subject of the plaintiff’s complaint
. . . .’’ ‘‘This section is a common-sense rule designed
to permit the joinder of closely related claims where
such joinder is in the best interests of judicial econ-
omy.’’ (Internal quotation marks omitted.) JP Morgan
Chase Bank, Trustee v. Rodrigues, supra, 109 Conn.
App. 131.
‘‘While courts have recognized equitable defenses in
foreclosure actions, they have generally only been con-
sidered proper when they attack the making, validity
or enforcement of the lien, rather than some act or
procedure of the lienholder. . . . The rationale behind
this is that counterclaims and special defenses which
are not limited to the making, validity or enforcement of
the [lien] fail to assert any connection with the subject
matter of the foreclosure action and as such do not
arise out of the same transaction as the foreclosure
action.’’ (Internal quotation marks omitted.) CitiMort-
gage, Inc. v. Rey, 150 Conn. App. 595, 600, 92 A.3d 278,
cert. denied, 314 Conn. 905, 99 A.3d 635 (2014).
‘‘[A] trial court’s determination of whether a particu-
lar counterclaim fits within the parameters of Practice
Book § 10-10 requires a reviewing court only to assess
whether, in coming to its conclusions, the court abused
its discretion.’’ Id., 601.
Conversely, ‘‘[t]he application of the law of the case
doctrine involves a question of law, over which our
review is plenary. . . . The law of the case doctrine
expresses the practice of judges generally to refuse to
reopen what [already] has been decided . . . . New
pleadings intended to raise again a question of law
which has been already presented on the record and
determined adversely to the pleader are not to be
favored. . . . [When] a matter has previously been
ruled [on] interlocutorily, the court . . . may treat that
[prior] decision as the law of the case, if it is of the
opinion that the issue was correctly decided, in the
absence of some new or overriding circumstance. . . .
A judge should hesitate to change his own rulings in a
case and should be even more reluctant to overrule
those of another judge.’’ (Internal quotation marks omit-
ted.) Brown v. Otake, 164 Conn. App. 686, 702–703, 138
A.3d 951 (2016).
In the present case, the defendant in his original coun-
terclaims alleged that the plaintiff’s enactment and
enforcement of its zoning regulations violated his con-
stitutional rights. The plaintiff moved to strike the origi-
nal counterclaims because they did not relate to the
making, validity, or enforcement of the tax liens at issue
in its complaint. The court, on that basis, granted the
first motion to strike. The defendant thereafter filed
the substitute counterclaims. As the court correctly
observed when ruling on the third motion to strike, the
substitute counterclaims substantively presented the
same legal issues as the original counterclaims that
were previously stricken for being legally insufficient.
That is, the substitute counterclaims, like the original
counterclaims, raised constitutional challenges to the
plaintiff’s enactment and enforcement of its zoning reg-
ulations rather than claims related to the making, valid-
ity, or enforcement of the tax liens at issue in the
plaintiff’s complaint.
Accordingly, we reject the defendant’s arguments
that the court improperly applied the law of the case
doctrine when striking the substitute counterclaims.7
We further conclude that the court did not abuse its
discretion by granting the plaintiff’s third motion to
strike because the substitute counterclaims did not
relate to the making, validity, or enforcement of the tax
liens at issue in in the plaintiff’s complaint.
The defendant’s appeal is dismissed with respect to
his special defenses. The judgment is affirmed in all
other respects.
1
Several additional parties were named as defendants in this action, but
they have not participated in this appeal. We therefore refer in this opinion
to John Alan Sakon as the defendant.
2
Practice Book § 10-44 states in relevant part: ‘‘Within fifteen days after
the granting of any motion to strike, the party whose pleading has been
stricken may file a new pleading . . . .’’
3
After the parties filed their briefs in this appeal, the defendant amended
the appeal twice. On December 7, 2016, this court sua sponte ordered that
the issues raised in the defendant’s amendments to this appeal be briefed
and considered separately from this appeal. See Practice Book § 61-9. As a
result, the only issues addressed in this opinion are the defendant’s chal-
lenges to the court’s granting of the first motion to strike and the third
motion to strike.
4
The defendant’s first special defense alleged: ‘‘The plaintiff’s liens . . .
for taxes, if due at all, are due on other properties and/or differently described
properties, and therefore, are unenforceable and/or void.’’
5
The defendant argues that the operative answer ‘‘was an answer to the
[operative] complaint’’ and ‘‘was not a substituted answer to correct the
deficiencies noted in [Judge] Robaina’s decision . . . .’’ The defendant’s
argument, however, is contradicted by his assertions in his motion for an
extension of time to file a substitute answer.
6
The first and second counterclaims alleged unlawful taking in violation of
the state and federal constitutions. The third, fourth, and fifth counterclaims
alleged equal protection violations under the state and federal constitutions.
The sixth and seventh counterclaims alleged civil rights violations under
state and federal law.
7
The defendant alleges that if he is not permitted to bring his counter-
claims in the present case, he will never have the opportunity to challenge the
constitutionality of the plaintiff’s zoning regulations, which have allegedly
deprived him of any legal use of his properties. He argues, therefore, as a
matter of equity, this court should permit his counterclaims to proceed so
that he can vindicate his constitutional rights, ‘‘[e]ven though they do not
have any connection with the making, validity, or enforcement of the tax
liens . . . .’’
‘‘[A] counterclaim is a cause of action existing in favor of the defendant
against the plaintiff and on which the defendant might have secured affirma-
tive relief had he sued the plaintiff in a separate action.’’ (Internal quotation
marks omitted.) Fairfield Lease Corp. v. Romano’s Auto Service, 4 Conn.
App. 495, 496, 495 A.2d 286 (1985). Simply because a defendant could raise
a claim in a separate cause of action, however, does not mean that a defen-
dant is permitted to raise that same claim as a counterclaim. Practice Book
§ 10-10 provides that a counterclaim must arise ‘‘out of the transaction or
one of the transactions which is the subject of the plaintiff’s complaint
. . . .’’ The purpose of this rule ‘‘is to enhance judicial economy, [to avoid]
multiplicity of litigation, and [to avoid] piecemeal disposition of what is
essentially one action . . . .’’ (Internal quotation marks omitted.) Ceci Bros.,
Inc. v. Five Twenty-One Corp., 81 Conn. App. 419, 423 n.3, 840 A.2d 578,
cert. denied, 268 Conn. 922, 846 A.2d 881 (2004).
In the present case, the defendant’s counterclaims do not arise out of the
same transaction as this tax lien foreclosure action. As a result, it does not
advance the interests of judicial economy to litigate the defendant’s causes
of action together with the plaintiff’s.