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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-represented 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 prejudgment remedy (AC 35201). The court, B. Fischer,

J., granted the defendants’ motion for summary judgment on the ground that the plaintiff did not have standing to bring the action. The court, Young, J., dismissed

the plaintiff’s application for a prejudgmentremedy as a

sanction after finding that he ‘‘wilfully and with specific

intent, attempted to tamper with a witness by intimidation and threat of legal proceedings.’’

On appeal, the plaintiff claims that Judge Fischer

improperly granted the defendants’ motion for summary 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 dismissed his application for a prejudgment remedy

because his ‘‘order was erroneous.’’ Although we conclude that the plaintiff’s claims are without merit, Judge

Fischer should have dismissed the plaintiff’s action

instead of rendering summary judgment when he concluded that the plaintiff lacked standing. For that reason, 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 jurisdiction. 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 January, 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 defendants. 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 determined 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. Absolutely.’’ 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 summary 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 attorney. 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 defendants 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 challenging the court’s jurisdiction.

The fundamental principles underlying the doctrines

of res judicata and collateral estoppel are well established. ‘‘[T]he issue of whether principles ofres 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 ofres judicata which prohibits the relitigation 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 omitted; emphasis altered; internal quotation marks omitted.) Lafayette v. General Dynamics Corp., 255 Conn.

762, 772, 770 A.2d 1 (2001).

The plaintiff is confusing the collateral estoppel doctrine 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 doctrine 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 summary 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

forlack of subject matterjurisdiction, 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 transcripts 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 judgment, 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 documentary 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 courtrigidly 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, affidavits and any other documentary proof submitted by

the parties.

‘‘Our resolution of that issue is also influenced by

the well settled principle that subject matterjurisdiction

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 priorinterlocutory 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 defendants’ 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 hearings on all matters, and not all situations calling for

procedural safeguards call for the same kind of procedure. . . . So long as the procedure afforded adequately protects the individual interests at stake, there

is no reason to impose substantially greater burdens

. . . under the guise of due process.’’ (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). ‘‘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 ownership 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 plaintiff 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 plaintiff’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 supported by such documents as may be appropriate,

including but not limited to affidavits, certified transcripts 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 calendarfile 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 circumstances of this case, Judge Fischer did not improperly 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 improperly dismissed his application for a prejudgment remedy. 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 improperly dismissed the plaintiff’s application for a prejudgment 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 granting 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/orto 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. Manifold 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).