DocketNumber: No. CV 34 93 52 S
Citation Numbers: 1998 Conn. Super. Ct. 13002
Judges: BALLEN, J.
Filed Date: 11/12/1998
Status: Non-Precedential
Modified Date: 7/5/2016
On December 19, 1997, Frank Palumbo filed a counterclaim against the plaintiff, alleging that the plaintiff breached his fiduciary duties, and relied upon erroneous information in denying a claim made by Frank Palumbo. On March 24, 1998, Frank Palumbo filed a cross claim against Peter and Robert Palumbo for additional expenses due to the denial of Frank Palumbo's claims and s because the cross claim defendants have failed to pay their share of after-death taxes.
Before the court is the plaintiff's motion to dismiss Frank Palombo's counter claim and cross claim on the ground that each is a collateral attack on the prior judgment of the court. Frank Palumbo (the defendant) has filed a memorandum in opposition to the plaintiff's motion to dismiss. The matter was heard by the court on October 9, 1998.
"Res judicata does not implicate a court's subject matter jurisdiction. . . The doctrine must be raised as a special defense and may not be raised by a motion to dismiss, which is the appropriate vehicle to assert a lack of jurisdiction."Rosenfeld v. McCann,
Nevertheless, the Appellate Court has on at least one occasion allowed a defendant to proceed with a collateral estoppel claim on a motion to dismiss. "Collateral estoppel, like res judicata, must be specifically pleaded by a defendant as an affirmative defense. . . There is, however, an exception to this general rule. The defendant's failure to file a special defense may be treated as waived where the plaintiff fails to make appropriate objection to the evidence and argument offered in support of that defense. . . We conclude that the failure to file a special defense here was waived because the plaintiff did not object to the dismissal on that ground, even after the defendants claimed that collateral estoppel required a dismissal." (Citations omitted.) Carnese v. Middleton,
Because the defendant did not object to the plaintiffs failure to file his res judicata and collateral estoppel claims as special defenses, the court may find that the defendant has waived the pleading requirement and the plaintiff may proceed with the motion to dismiss. However, it would be unfair for the court to apply the exception because the defendant is a pro se litigant. To do so would ignore the appellate court's holding that pro se parties should be given great latitude regarding procedural rules in order that justice may be done.Lawson v. Whitey's Frame Shop,
The plaintiff s motion to dismiss is denied as the plaintiff may not assert lack of jurisdiction based on res judicata and collateral estoppel on a motion to dismiss.
BALLEN, J.