DocketNumber: No. CV94 04 71 24S
Citation Numbers: 1995 Conn. Super. Ct. 12183
Judges: CURRAN, J.
Filed Date: 10/31/1995
Status: Non-Precedential
Modified Date: 4/18/2021
On August 17, 1994, the Andresakis' filed a motion to dismiss and request for stay along with a supporting memorandum of law and supporting documents. By memorandum of decision dated December 20, 1994, this court denied the defendants' motion to dismiss and request for stay.
On June 19, 1995, the defendants filed a motion to strike based on the ground that the additional parties named in the foreclosure complaint have been improperly joined. The defendants argue that a ruling in federal court, in Andresakis v. City ofMilford, Civil No. 3:93-CV-98 (JAC), regarding the joinder of these same parties has collateral estoppel or res judicata effect on the present foreclosure action. The plaintiff in the present action filed a memorandum in opposition on July 5, 1995. In a supplemental memorandum of law filed July 25, 1995 (entitled "Affirmation and Exhibits in Support of Motion to Strike"), the defendants raise additional grounds in support of their motion to strike; the defendants move to strike the fourth count of the plaintiff's complaint, and as far as this court can gather, the motion is based on res judicata and collateral estoppel grounds regarding dismissal of a counterclaim and a stipulation of dismissal in the federal case. The plaintiff also filed a supplemental memorandum of law on August 4, 1995, in reply to the CT Page 12184 defendants' supplemental memorandum of law.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff. . . . A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Novametrix Medical Systems, Inc. v. BOC Group, Inc.,
In contrast, a motion for summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 384; Suarez v. Dickmont Plastics Corp. ,
The defendants' motion to strike (# 131), dated June 9, 1995, raises the issue of misjoinder of additional parties. "The exclusive remedy for misjoinder of parties is by motion to strike." Practice Book § 198; Korzen v. Southbury,
Furthermore, the determination that these same additional parties were not "necessary" in the prior federal action does not have collateral estoppel effect in this foreclosure proceeding. Taking judicial notice of Judge Cabranes' ruling in the federal case on the City of Milford's motion to join, this court notes that the federal court dismissed the foreclosure counterclaim of the defendant City of Milford because
For the reasons set forth above, the defendants' motion to strike based on the ground of misjoinder of the additional parties to the foreclosure action is denied.
The defendants' supplemental memorandum of law (#132) (entitled "Affirmation and Exhibits in Support of Motion to Strike"), dated July 14, 1995, raises additional grounds not apparent on the face of the motion to strike (#131) dated June 9, 1995.1 It appears, however, that the defendants' have continued their motion to strike in the supplemental filing and have fused together their motion and memoranda of law.2
Nevertheless, the defendants' additional grounds of collateral estoppel and res judicata have been improperly raised by this motion to strike. "Res judicata does not provide the basis for a judgment of dismissal; it is a special defense that is considered after any jurisdictional thresholds are passed." Labbe v. PensionCommission,
A motion to strike is not the proper method by which to raise CT Page 12186 the issue of res judicata and collateral estoppel. StatewideGrievance Committee,
In addition, the motion to strike in this case is not proper because it is a "speaking" motion to strike. "The motion to strike cannot be opposed by facts outside the attacked pleadings."Gildersleeve v. Trumbull, 12 Conn. L. Trib. 31 (December 20, 1985, Maiocco, J.). The court, "cannot be aided by the assumption of any facts not therein alleged [in the complaint]." Liljedahl Bros., v.Grigsby,
The defendants' motion to strike based on collateral estoppel or res judicata is denied based on procedural grounds.3
Even if this court were to consider the motion to strike4 based on the claims of res judicata and collateral estoppel the court nevertheless denies the motion to strike. This is so becauseAndresakis v. City of Milford was brought in federal court for breach of contract, fraud and negligence, and the present foreclosure action was brought to recover monies owed for nonpayment of property taxes. This court's prior ruling, dated December 20, 1995, on the defendants' motion to dismiss and stay of proceedings found that the present foreclosure action and the defendants' prior action against the city of Milford were not "sufficiently similar." (Memorandum of Decision, p. 7). The court still finds that the two actions are not sufficiently similar.
"Under Connecticut law, collateral estoppel, or issue CT Page 12187 preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Citations omitted; emphasis added; internal quotation marks omitted.) Mulligan v. Rioux,
Furthermore, in the prior action in federal court the City of Milford's counterclaim for foreclosure was dismissed. Hence, the counterclaim was not actually litigated in the prior action and could not be the basis for collateral estoppel. State v. Ball,
Likewise, the "General Release" does not purport to release the Andresakis' for any claims against them for any unpaid property taxes. Therefore, the "General Release" has no collateral estoppel effect.
The motion to strike is denied in its entirety.
The Court
By Curran, J.