Henderson v. Lagoudis , 148 Conn. App. 330 ( 2014 )

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DANIEL HENDERSON v. VICKI LAGOUDIS ET AL.
(AC 35201)
(AC 35270)
Lavine, Alvord and Schaller, Js.
Argued November 19, 2013—officially released February 25, 2014
(Appeal from Superior Court, judicial district of New
Haven, Young, J. [prejudgment remedy application]; B.
Fischer, J. [summary judgment].)
Daniel Henderson, self-represented, the appellant
(plaintiff).
Steven C. Rickman, for the appellees (defendants).
Opinion
ALVORD, J. In this consolidated appeal, the self-rep-
resented plaintiff, Daniel Henderson, appeals from (1)
the trial court’s rendering of summary judgment in favor
of the defendants, Vicki Lagoudis, Michael Lagoudis
and RJG Realty of Meriden, LLC (AC 35270), and (2)
the trial court’s dismissal of his application for a pre-
judgment remedy (AC 35201). The court, B. Fischer,
J., granted the defendants’ motion for summary judg-
ment on the ground that the plaintiff did not have stand-
ing to bring the action. The court, Young, J., dismissed
the plaintiff’s application for a prejudgment remedy as a
sanction after finding that he ‘‘wilfully and with specific
intent, attempted to tamper with a witness by intimida-
tion and threat of legal proceedings.’’
On appeal, the plaintiff claims that Judge Fischer
improperly granted the defendants’ motion for sum-
mary judgment because (1) he was collaterally estopped
from determining that the plaintiff lacked standing to
bring the action because of a prior ruling by the court,
A. Robinson, J., on the defendants’ motion to dismiss,
and (2) he failed to afford the plaintiff an evidentiary
hearing at the time of the scheduled argument on the
defendants’ motion for summary judgment. The plaintiff
additionally claims that Judge Young improperly dis-
missed his application for a prejudgment remedy
because his ‘‘order was erroneous.’’ Although we con-
clude that the plaintiff’s claims are without merit, Judge
Fischer should have dismissed the plaintiff’s action
instead of rendering summary judgment when he con-
cluded that the plaintiff lacked standing. For that rea-
son, in AC 35270, we reverse the summary judgment
and remand the case with direction to render judgment
dismissing the action for lack of subject matter jurisdic-
tion. Because of this determination, the plaintiff’s
appeal in AC 35201, with respect to the dismissal of his
application for a prejudgment remedy, is moot.
The record reveals the following facts and procedural
history. The plaintiff commenced the present action on
January 3, 2012. It was his fifth action against these
defendants for, inter alia, their alleged trespass onto
adjoining property in Meriden (subject property) in Jan-
uary, 2010. The first action was brought by GMC Land
Holdings, Inc. (corporation), claiming to be the owner
of the subject property allegedly damaged by the defen-
dants. The plaintiff, who is not a member of the bar, filed
an appearance ‘‘pro se’’ on behalf of the corporation,
resulting in the trial court’s sua sponte dismissal of the
action.1 The subsequent actions were brought by the
self-represented plaintiff in his name, wherein he
claimed to be the owner of the subject property. All
of the prior actions have either been withdrawn or
dismissed. On September 30, 2011, the fourth action
was dismissed by Judge Robinson because she deter-
mined that the plaintiff failed to establish that he owned
the property ‘‘with credible evidence’’ and therefore
lacked standing.
Shortly after the plaintiff commenced the present
fifth action, the defendants filed a motion to dismiss
his complaint and his application for a prejudgment
remedy on the grounds that he lacked standing and was
collaterally estopped from claiming that he did have
standing by Judge Robinson’s dismissal of the fourth
action. After an evidentiary hearing, Judge Robinson
denied the defendants’ motion to dismiss.2 One month
later Judge Robinson held a status conference on the
record to discuss scheduling and discovery requests.
At one point during the conference, the plaintiff stated
that Judge Robinson already had determined that he
owned the subject property and had standing to pursue
the action. Judge Robinson responded: ‘‘I do want to
clarify one thing. On the motion to dismiss, all I found
[was] that you presented enough evidence to support
your allegation that you do have standing, because in
a motion to dismiss I am required to look at the—the
facts most favorable to having jurisdiction . . . so
that’s what I did.’’ Later during that status conference,
the defendants’ counsel stated: ‘‘[T]o add, to the court
as much for [the plaintiff], if we cannot agree to . . .
a nonjury trial in a quick way, then this issue of his
standing is still out there, and I can move for summary
judgment.’’ Judge Robinson responded: ‘‘Yeah. Abso-
lutely.’’ The plaintiff responded: ‘‘And I’m prepared to
defend a summary judgment action.’’
The defendants filed a motion for summary judgment
on October 3, 2012. Claiming that the plaintiff did not
own the subject property and therefore lacked standing,
the defendants filed a memorandum of law, affidavit
by the defendants’ counsel, and various documents as
exhibits to the affidavit. The plaintiff filed an affidavit
and a memorandum of law in opposition to the motion,
primarily claiming that Judge Robinson’s denial of the
defendants’ motion to dismiss collaterally estopped the
defendants from raising the issue of standing in a sum-
mary judgment motion.
Prior to the hearing on the defendants’ motion for
summary judgment, Judge Young held a hearing on
the plaintiff’s application for a prejudgment remedy.
Immediately after the parties introduced themselves
for the record, Judge Young stated that he wanted to
question the plaintiff about a letter that the plaintiff
had sent the zoning enforcement officer of the town of
Meriden.3 Judge Young read the plaintiff his Miranda4
rights, and asked the plaintiff whether he understood
those rights and if he wanted to consult with an attor-
ney. The plaintiff responded that he did understand
his rights and that he did not wish to consult with an
attorney. Judge Young then proceeded to question the
plaintiff under oath as to his purpose for sending the
letter, which was titled as a notice of intent to sue.5 At
the conclusion of the plaintiff’s testimony, Judge Young
found that the plaintiff attempted to tamper with a
witness and dismissed his application for a prejudgment
remedy with prejudice.6 The plaintiff appealed from the
dismissal of his prejudgment remedy application on
November 19, 2012.
On November 26, 2012, Judge Fischer held a hearing
on the defendants’ motion for summary judgment. At
the beginning of the hearing, the plaintiff asked that
the matter be passed because his witness had not yet
arrived at the courthouse. Judge Fischer responded:
‘‘Well, this is a motion for summary judgment. There
[are] no witnesses that I’m going to hear; this is not an
evidentiary hearing. . . . And I’ll make a decision
based on the paperwork filed, but I’m not going to have
an evidentiary hearing.’’ He further noted that he had
reviewed all of the paperwork filed in the matter.
Following the argument of the defendants’ counsel
in support of the motion, the plaintiff responded that
the defendants should be collaterally estopped from
raising the standing issue because it was their ‘‘second
pretrial motion asked in this court to stop me from
relitigating a question of jurisdiction, a jurisdictional
question that was conclusively decided on May 18th by
Judge Robinson.’’ The plaintiff argued: ‘‘I should be able
to put my witness on the stand to clarify exactly what
was said because [the defendants are] cherry-picking
what [the witness] said out of different parts;7 it’s like
taking the Bible and trying to prove your point by trying
to take a few verses out, and—it’s—and my position
it’s the defendants who are collaterally estopped from
relitigating the same exact issue in a second pretrial
motion that was fully and fairly litigated on March 19th,
Your Honor.’’
Judge Fischer granted the defendants’ motion for
summary judgment later that day. His written order
stated: ‘‘Court has reviewed all paperwork submitted in
support of this motion and in opposition to this motion.
Court has considered arguments of the parties at short
calendar on November 26, 2012. Motion is granted as
the plaintiff did not have standing. The plaintiff did not
own or exclusively possess the property he alleges the
defendants trespassed on in 2009.’’ The plaintiff
appealed from the granting of the defendants’ motion
for summary judgment on December 11, 2012.
I
The plaintiff’s first claim is that Judge Fischer was
collaterally estopped from determining that the plaintiff
lacked standing to bring this action against the defen-
dants on the basis of Judge Robinson’s prior ruling in
this matter on the defendants’ motion to dismiss. The
plaintiff argues that the issue of his standing was ‘‘fully
and fairly litigated’’ in the earlier pretrial motion,
thereby precluding the defendants from arguing the
standing issue in their motion for summary judgment,
which was the defendants’ second pretrial motion chal-
lenging the court’s jurisdiction.
The fundamental principles underlying the doctrines
of res judicata and collateral estoppel are well estab-
lished. ‘‘[T]he issue of whether principles of res judicata
and collateral estoppel are applicable to a particular
set of facts is a question of law over which an appellate
court’s review is plenary.’’ Ammirata v. Zoning Board
of Appeals, 264 Conn. 737, 744–45, 826 A.2d 170 (2003).
‘‘The common-law doctrine of collateral estoppel, or
issue preclusion, embodies a judicial policy in favor of
judicial economy, the stability of former judgments and
finality. . . . Collateral estoppel, or issue preclusion,
is that aspect of res judicata which prohibits the relitiga-
tion of an issue when that issue was actually litigated
and necessarily determined in a prior action between
the same parties upon a different claim. . . . 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 omit-
ted; emphasis altered; internal quotation marks omit-
ted.) Lafayette v. General Dynamics Corp., 255 Conn.
762, 772, 770 A.2d 1 (2001).
The plaintiff is confusing the collateral estoppel doc-
trine with the law of the case doctrine. Here, Judge
Robinson’s prior ruling on the motion to dismiss was
a ruling in the same case, not a ruling in a prior action
between the parties. Thus, the collateral estoppel doc-
trine is not applicable. Even if we analyze the plaintiff’s
claim under the law of the case doctrine, however, his
argument is without merit.
The law of the case doctrine provides that ‘‘[w]here
a matter has previously been ruled upon interlocutorily,
the court in a subsequent proceeding in the case may
treat that 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.’’
(Internal quotation marks omitted.) Wasko v. Manella,
87 Conn. App. 390, 395, 865 A.2d 1223 (2005). ‘‘A judge
is not bound to follow the decisions of another judge
made at an earlier stage of the proceedings, and if the
same point is again raised he has the same right to
reconsider the question as if he had himself made the
original decision. . . . [O]ne judge may, in a proper
case, vacate, modify, or depart from an interlocutory
order or ruling of another judge in the same case, upon
a question of law.’’ (Emphasis added; internal quotation
marks omitted.) Wagner v. Clark Equipment Co., 259
Conn. 114, 130–31, 788 A.2d 83 (2002).
Judge Robinson’s ruling on the motion to dismiss
was an interlocutory ruling. Her determination that the
plaintiff had introduced sufficient evidence at the March
19, 2012 evidentiary hearing to survive the defendants’
motion to dismiss, however, was not the law of the
case when the standing issue again was raised at a
subsequent hearing on the defendants’ motion for sum-
mary judgment. A trial court applies different principles
and a different analysis when ruling on a motion to
dismiss as opposed to a motion for summary judgment.
The case of Manifold v. Ragaglia, 94 Conn. App. 103,
891 A.2d 106 (2006), illustrates this point. In Manifold,
the defendants filed a motion to dismiss the complaint
for lack of subject matter jurisdiction, which was denied
by the court. Id., 110. Subsequently, the defendants filed
a motion for summary judgment on the same ground,
with which they submitted affidavits, deposition tran-
scripts and other documentary evidence. Id., 111. The
trial court, stating that it was treating the motion for
summary judgment as a motion to dismiss, denied the
subsequent motion, and the defendants filed an appeal
from that determination.8 Id. This court held that the
trial court improperly applied the standard for a motion
to dismiss, rather than the standard for summary judg-
ment, to the defendants’ claim that the court lacked
subject matter jurisdiction. Id., 113, 123.
In reaching that determination, the court in Manifold
reasoned: ‘‘Whereas a motion to dismiss is decided only
on the allegations in the complaint and the facts implied
from those allegations, summary judgment is decided
by looking at all of the pleadings, affidavits and docu-
mentary evidence presented to the court in support of
the motion. The latter standard, therefore, takes
account of the facts that have been developed through
discovery, rather than merely relying on the plaintiffs’
allegations at the outset of the action. Once litigation
has advanced through discovery, the requirement that
a court rigidly apply the standard for a motion to dismiss
to issues regarding subject matter jurisdiction, even if
the issue is presented through a motion for summary
judgment, seems to us too narrow an interpretation
of the rules of practice. . . . The better approach, we
conclude, is for the trial court to treat the motion as a
motion for summary judgment, as it was presented, and
to evaluate the issue of subject matter jurisdiction on
the basis of a thorough review of the pleadings, affida-
vits and any other documentary proof submitted by
the parties.
‘‘Our resolution of that issue is also influenced by
the well settled principle that subject matter jurisdiction
can be raised at any time. . . . The possibility that the
court’s subject matter jurisdiction may be challenged
at each stage of litigation militates against requiring
litigants to use the motion to dismiss at all times to
bring the issue to the court’s attention. If the motion
to dismiss was the only procedural vehicle by which
subject matter jurisdiction could be contested, courts
may not consider evidence produced through discovery
that is relevant to the determination. Further, the impor-
tance of resolving any jurisdictional defects as early as
possible in the litigation, so as not to waste judicial
resources or the resources of the parties involved,
favors the use of summary judgment as an additional
procedural vehicle by which to challenge subject matter
jurisdiction. Doing so enable the court to undertake a
more complete evaluation of whether subject matter
jurisdiction exists before proceeding to trial.’’ (Citations
omitted; emphasis in original.) Id., 120–21.
From the forgoing discussion, we conclude that the
doctrine of collateral estoppel is not applicable to Judge
Robinson’s prior interlocutory ruling on the defendants’
motion to dismiss and that the law of the case doctrine
likewise is not applicable under the circumstances of
this case. Judge Fischer properly addressed the defen-
dants’ claim that the plaintiff’s lack of standing deprived
the court of subject matter jurisdiction,9 as raised in
the defendants’ motion for summary judgment.
II
The plaintiff’s next claim is that Judge Fischer
improperly denied his request for an evidentiary hearing
at the time of the argument on the defendants’ motion
for summary judgment. He argues that he ‘‘was denied
due process when the trial court . . . denied him an
evidentiary hearing.’’
‘‘Due process does not mandate full evidentiary hear-
ings on all matters, and not all situations calling for
procedural safeguards call for the same kind of proce-
dure. . . . So long as the procedure afforded ade-
quately protects the individual interests at stake, there
is no reason to impose substantially greater burdens
. . . under the guise of due process.’’ (Internal quota-
tion marks omitted.) Countrywide Home Loans Servic-
ing, LP v. Creed, 145 Conn. App. 38, 50, 75 A.3d 38,
cert. denied, 310 Conn. 936, 79 A.3d 889 (2013). ‘‘Due
process . . . is not a technical conception with a fixed
content unrelated to time, place and circumstances.’’
(Internal quotation marks omitted.) Commissioner of
Environmental Protection v. Farricielli, 307 Conn. 787,
820, 59 A.3d 789 (2013).
The defendants first challenged the plaintiff’s owner-
ship of the subject property, and hence his standing to
bring the action, by way of a motion to dismiss. An
evidentiary hearing was held at that time, and the plain-
tiff had the opportunity to present whatever evidence
he had in support of his claim that he owned the subject
property. Sometime later, after discovery requests had
been served, the defendants again challenged the plain-
tiff’s standing to bring the action by way of a motion
for summary judgment. Pursuant to Practice Book § 17-
45, ‘‘[a] motion for summary judgment shall be sup-
ported by such documents as may be appropriate,
including but not limited to affidavits, certified tran-
scripts of testimony under oath, disclosures, written
admissions and the like. . . . Any adverse party shall
at least five days before the date the motion is to be
considered on the short calendar file opposing affidavits
and other available documentary evidence.’’ Practice
Book § 17-49 provides: ‘‘The judgment sought 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.’’
The only affidavit submitted in opposition to the
defendants’ motion for summary judgment was the
plaintiff’s affidavit. The only documentary evidence
submitted by the plaintiff consisted of pictures of the
subject property to show the alleged damage caused
by the defendants’ actions. The plaintiff did not submit
an affidavit by the witness he planned to have testify
at the requested evidentiary hearing. Moreover, he did
not indicate to Judge Fischer that his proposed witness
had any information other than the evidence that
already had been presented to Judge Robinson at the
evidentiary hearing on the defendants’ previous motion
to dismiss. Judge Fischer expressly stated that he had
considered all of the paperwork submitted in support
of and in opposition to the motion and that he had
considered the arguments of the parties. Under the cir-
cumstances of this case, Judge Fischer did not improp-
erly refuse to grant the plaintiff’s request for a second
evidentiary hearing on the issue of his ownership of
the subject property.
III
The plaintiff’s final claim is that Judge Young improp-
erly dismissed his application for a prejudgment rem-
edy. Because we have concluded that the plaintiff’s
challenges to Judge Fischer’s determinations relating
to the summary judgment are without merit, we do not
need to reach this issue. We are remanding this matter
to the trial court with direction to dismiss the action
for lack of subject matter jurisdiction. In light of this
result, any analysis as to whether Judge Young improp-
erly dismissed the plaintiff’s application for a prejudg-
ment remedy—seeking to secure the defendants’ assets
in the event he should prevail in the action—would be
academic. ‘‘[I]t is not the province of appellate courts
to decide moot questions, disconnected from the grant-
ing of actual relief or from the determination of which
no practical relief can follow.’’ (Internal quotation
marks omitted.) G Power Investments, LLC v. GTherm,
Inc., 141 Conn. App. 551, 557, 61 A.3d 592 (2013).
In AC 35270, the form of the judgment is improper,
the summary judgment is reversed and the case is
remanded with direction to render judgment dismissing
the action for lack of subject matter jurisdiction. In AC
35201, the appeal is dismissed as moot.
In this opinion the other judges concurred.
1
A nonattorney does not have authority to represent a corporation. See
Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34
Conn. App. 543, 546–47, 642 A.2d 62, cert. denied, 230 Conn. 915, 645 A.2d
1018 (1994).
2
Judge Robinson’s order provided: ‘‘Notwithstanding the defendants’
claim that the [plaintiff] has been previously adjudged to lack standing, this
court denies the motion for the following reasons. First, though the plaintiff
has previously been found to lack standing, those findings do not form a
proper basis to dismiss this action. If the defendant[s] wish to plead, as a
special defense, collateral estoppel or res judicata, [they] may do so. Second,
the court must consider the evidence presented by the plaintiff in this action.
That evidence, albeit, only recently produced, supports the plaintiff’s claim
that he is the legal owner of the property at issue. As such, this court
concludes that he has standing to proceed and the motion to dismiss must
be denied.’’
3
A copy of the letter had been submitted as an attachment to a motion
for continuance filed in court by the defendants.
4
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
5
The letter, marked as a court exhibit, stated: ‘‘Be advised, it has come
to my attention that you will testify for Lagoudis on 9-28-12 at New Haven
Court in the matter of Henderson v. Lagoudis, CV125034082, and that your
testimony may include, that it’s your belief that Lagoudis did not exceed
the ‘excavation area’ that is identified on the map that Lagoudis presented
to you/city of Meriden for permission to excavate, and that you did not
order work stopped at the site.
‘‘Be advised, if this is your testimony, creates a cause of action against
you/city of Meriden that I will pursue by moving to cite you/city in as party
defendants and/or file separate action.
‘‘Thank you for your time. I look forward to seeing you on the 28th.’’
6
Judge Young’s order stated: ‘‘This matter was scheduled for a hearing
on the plaintiff’s application for prejudgment remedy. Prior to that hearing,
the court conducted a preliminary hearing concerning a letter written by
the plaintiff to a witness scheduled to testify. The court conducted an
evidentiary hearing and finds that the plaintiff, wilfully and with specific
intent, attempted to tamper with a witness by intimidation and threat of
legal proceedings. The court finds the plaintiff not credible in his assertion
that he believed he had an obligation to put the city on notice pursuant to
General Statutes § 7-465 for a perceived prospective claim which had not
yet ripened. The court finds the plaintiff attempted to control and chill the
testimony of a witness, to prevent testimony and/or to induce false testimony
in this matter. As a sanction, the court dismisses the plaintiff’s application
for prejudgment remedy with prejudice and further orders that the plaintiff
be precluded from filing any further prejudgment remedy applications in
this or any other action concerning the subject properties.’’
7
This is the only time that the plaintiff indicated to Judge Fischer what
his witness’ testimony would be if his request for an evidentiary hearing
had been granted.
8
This court determined that the trial court’s denial of the defendants’
motion for summary judgment, which asserted that they were protected by
sovereign immunity, was an immediately appealable final judgment. Mani-
fold v. Ragaglia, supra, 94 Conn. App. 112.
9
‘‘It is well established that [a] party must have standing to assert a claim
in order for the court to have subject matter jurisdiction over the claim.’’
(Internal quotation marks omitted.) Countrywide Home Loans Servicing,
LP v. Creed, 145 Conn. App. 38, 50, 75 A.3d 38, cert. denied, 310 Conn. 936,
79 A.3d 889 (2013).