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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 substitute 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 forthe 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 defendant filed his answer to the plaintiff’s complaint, which

contained six special defenses and seven counterclaims

(original special defenses and counterclaims). On January 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 December 10, 2014, the defendant filed a revised motion for

reconsideration of the court’s order granting the plaintiff’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 defendant’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 defendant filed motions for extension of time to file a substitute 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 counterclaims 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 doctrine, 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 defendant 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 defendant 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 plaintiff’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 omitted.) 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 policy concerns underlying the final judgment rule are

to discourage piecemeal appeals and to facilitate the

speedy and orderly disposition of cases at the trial court
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 judgment 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 overthese 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 nonsuit only with respect to his counterclaims.

The defendant also argues that this court has jurisdiction 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 substitute counterclaims. The plaintiff argues that the defendant 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 enforcement 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 striking of the original counterclaims by filing the substitute 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 rendering of judgment, file an appeal. . . . The choices are

mutually exclusive [as] [t]he filing of an amended pleading 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 plaintiff 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 complaint, in which he alleged special defenses and counterclaims that were substantially similar to those raised

in the original answer. Approximately two weeks later,

the court denied the defendant’s motion for reconsideration. Thereafter, the defendant filed motions for extension 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 substitute 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 reconsideration of the plaintiff’s first motion to strike, the defendant 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 defendantraised 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 properties, thereby violating his state and federal constitutional 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 counterclaims 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 substitute counterclaim alleges that the plaintiff ‘‘sought to,

under the color or authority of its regulations . . . discriminate 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 process’’ 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 counterclaims, 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 theories . . . 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 transactions 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 economy.’’ (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 considered 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.) CitiMortgage, 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 particular 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 anotherjudge.’’(Internal quotation marks omitted.) Brown v. Otake, 164 Conn. App. 686, 702–703, 138

A.3d 951 (2016).

In the present case, the defendant in his original counterclaims alleged that the plaintiff’s enactment and
enforcement of its zoning regulations violated his constitutional rights. The plaintiff moved to strike the original 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 regulations rather than claims related to the making, validity, 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 challenges 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 . . .

fortaxes, 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 counterclaims 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 affirmative 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 defendant 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.