Edward Socha, Jr. v. Estate of Ray et al. (2009)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT

In February 2008, the plaintiff, Edward Socha, Jr., filed a three-count petition pursuant to General Statutes § 47-34 naming the estate of Ray and “other unknown parties” as defendants.   In the first count of the petition, the plaintiff alleges that he owns real property located on the shore and under the waters of Gardner Lake in Salem, Connecticut.   His property is described in two deeds but the deeds do not describe one particular course which begins where the boundary enters the waters of the lake, and runs out to the now submerged shoreline of Great Pond, as it was in 1805.   Michael Tarbell, a surveyor, located the missing course and has described it in a property survey that he prepared for the plaintiff.   The land records do not provide any information as to who owns the property that is adjacent to the missing course;  however, in the early 1800s, the land to the south of the missing course was owned by the estate of Ray and the land records do not contain any information showing that the estate transferred its ownership therein.   Pursuant to § 47-34, the plaintiff asks the court to appoint a committee of three disinterested property owners to erect and establish the uncertain boundary.

In the second count, the plaintiff alleges that a portion of the boundary of his property became uncertain when it became submerged after the water level of the lake was raised due to the construction of a dam.   The plaintiff claims that he has determined the northern and southern ends of the missing boundary.   The land records do not provide a record of who owns the land that is adjacent to this boundary, nor do they contain any record of anyone claiming to own this land.   He asks the court to appoint a committee of three disinterested property owners to review his deed and claim and locate the uncertain boundary as he has determined it to be, and thereafter to order that the boundary, as established, be recorded in the land records.¹

On January 26, and February 2, 2008, service was made by publication of notice in the Norwich Bulletin, “To the Descendants, Heirs of the Estate of Ray and or Other interested Parties.”   On March 14, 2008, the defendant, Scott Bordeau, filed an appearance in the matter as an “other interested party.” ²  On April 14, 2009, the defendant filed an answer and special defenses in which he denies the essential allegations of the petition and asserts, as special defenses, that the plaintiff's claims are barred by the doctrines of res judicata, collateral estoppel and laches.³

The motion that is presently before the court is the defendant's motion for summary judgment, filed on May 29, 2009.   The defendant asserts that he is entitled to summary judgment as to the first and second counts in that they are barred by the doctrines of res judicata and/or collateral estoppel, and the statute that the plaintiff relies on in these counts, i.e., § 47-34, cannot afford him the relief that he seeks therein.⁴

“Practice Book § 17-49 provides that 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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing ․ that the party is ․ entitled to judgment as a matter of law.”   (Internal quotation marks omitted.)  Powell v. Infinity Ins. Co., 282 Conn. 594, 599-600, 922 A.2d 1073 (2007).  “Summary judgment is the appropriate method for resolving a claim of res judicata.”  Sotavento Corp. v. Coastal Pallet Corp., 102 Conn. 828, 833, 927 A.2d 351 (2007).

The first ground in the defendant's motion for summary judgment is that the claims that the plaintiff raises in this action are barred by the principles of res judicata and/or collateral estoppel in that the same two parties were involved in prior litigation that involved the same property and the boundaries thereto.   Specifically, the defendant refers to Socha v. Bordeau, Superior Court, judicial district of New London at Norwich, Docket No. CV 01 012257.   The decision in that case is published as Socha v. Ray, 50 Conn.Sup. 631, 961 A.2d 495, aff'd, 289 Conn. 358, 956 A.2d 1174 (2008).   The plaintiff counters that neither principle bars the claims that he makes in this action, as the issue of the exact location of his boundary lines was neither raised nor decided in the prior litigation.

“Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum ․ Because these doctrines are judicially created rules of reason that are enforced on public policy grounds ․ we have observed that whether to apply either doctrine in any particular case should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close ․ and the competing interest of the plaintiff in the vindication of a just claim ․ These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation;  (2) to prevent inconsistent judgments which undermine the integrity of the judicial system;  and (3) to provide repose by preventing a person from being harassed by vexatious litigation ․ The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate ․ Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest ․”

“We have also recognized, however, that the application of either doctrine has dramatic consequences for the party against whom it is applied, and that we should be careful that the effect of the doctrine does not work an injustice ․ Thus, [t]he doctrines of preclusion ․ should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies ․ Accordingly, on occasion, we have recognized exceptions to the general policy favoring application of the doctrines or res judicata and collateral estoppel.   In establishing exceptions to the general application of the preclusion doctrines, we have identified several factors to consider, including:  (1) whether another public policy interest outweighs the interest of finality served by the preclusion doctrines ․ (2) whether the incentive to litigate a claim or issue differs as between the two forums ․ (3) whether the opportunity to litigate the claim or issue differs as between the two forums ․ and;  (4) whether the legislature has evinced an intent that the doctrine should not apply.”  (Citations omitted;  internal quotation marks omitted.)  Powell v. Infinity Ins. Co., supra, 282 Conn. 601-03.

The first question is whether the plaintiff's claims are barred by the doctrine of res judicata.  “The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction ․ If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made.”  (Internal quotation marks omitted.)  Id., 600.

“In deciding whether the doctrine of res judicata is determinative, we begin with the question of whether the second action stems from the same transaction as the first.   We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine or res judicata.  [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.   What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage ․ In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action.”  (Citations omitted;  internal quotation marks omitted.)   Id., 604.

The plaintiff initiated the prior litigation as an action for a temporary injunction.   In the amended two-count complaint in that action,⁵ the plaintiff alleged the following facts.   The plaintiff owned the property that is at issue in the present action, and the defendant owned an abutting property.   The boundary line between the parties' properties was established by an agreement that the parties entered into in the context of an earlier action, which then was accepted by the court and became a stipulated judgment.   The defendant unlawfully trespassed on the plaintiff's property by building docks thereon, which constitutes a violation of terms of the agreement.   The defendant's conduct will cause irreparable injury to the plaintiff for which he does not have an adequate remedy at law.   The plaintiff sought a temporary restraining order as well as a preliminary and permanent injunction prohibiting the defendant from trespassing on the plaintiff's property.   The trial court granted the plaintiff's motion for summary judgment, but, upon the defendant's appeal, the Supreme Court reversed that judgment and remanded the action to the trial court.   See Socha v. Bordeau, 277 Conn. 579, 893 A.2d 422 (2006).

Following a trial to the court, the court issued a decision in which it stated the following:  “The issue concerns the plaintiff's ability to establish title to the land under the water where the defendant's dock is located ․ At the trial, the plaintiff offered testimony from the plaintiff and two expert witnesses, Michael Tarbell, a land surveyor, and John W. Butts, an attorney and title searcher.   The defendant called one witness, Robert Mullen, an expert in land surveying.   In addition, the parties offered several exhibits, including the deeds of the parties and several maps.

“From the evidence presented ․ the following facts are found relevant to the court's conclusions ․ Both of the Socha deed descriptions omit a critical course, which means the description does not close.   This omission is in the area of the plaintiff's property under the lake in the vicinity of the defendant's property ․ In connection with an earlier dispute concerning their common upland boundary line, the parties ultimately entered into a boundary line agreement ․ Neither party obtained ownership of the land under the waters of Gardner Lake by virtue of the boundary line agreement.   Tarbell, a surveyor engaged by the plaintiff presented testimony attempting to establish the ownership of the land under the defendant's dock by research and review of record, maps, deeds and other sources ․ He acknowledged that the deed descriptions of the Socha deeds were flawed.   In his testimony he phrased it that:  ‘[T]here's a course missing ․’ The missing course, depending on where it is reconstructed or located, could either put the defendant's dock on the plaintiff's property or off the plaintiff's property.   This then is a critical omission from the point of view of this particular case ․”

There is no credible evidence as to the ownership of the land under the water upon which the defendant has built a dock.   There is no evidence as to the specific location of the defendant's dock.   None of the maps or plans in evidence attempt to show the location of the defendant's dock ․ There was no credible evidence as to the ownership of the land under the waters of Gardner Lake adjacent to the defendant's seventy-three foot frontage.   No evidence was offered as to the possession or use, actual or constructive, of the subaqueous land adjoining the defendant's frontage on Gardner Lake, except for the defendant's dock at an unspecified location in that area.”  Socha v. Ray, supra, 50 Conn.Sup. 632-36.

As to the applicable law, the court noted that, “[t]he Supreme Court in its earlier view of this case has provided much of the law required to resolve the issues raised:  ‘[W]hen both damages for trespass and an injunction are sought and the answer is a general denial, both title to the disputed area and possession are placed in issue ․ Because [t]itle is an essential element in a plaintiff's case, [when] an injunction is sought to restrain a trespass ․ A party claiming title must rely on the strength of his own title and not on the weakness of the title of another ․ Moreover, because trespass is a possessory action, it is incumbent on the plaintiff to prove possession, actual or constructive, in order to prevail ․ Consequently if the plaintiff seeks to enforce his rights by a mandatory injunction, he must show actual possession in himself, since injunctive relief cannot be used to take property out of the possession of one person in order to put it into the possession of another ․ Finally, when the issue of title or ownership is directly involved, the proper way to prove title is by the production of the original documents or certified copies from the record.’  ․ Socha v. Bordeau, supra, 277 Conn. 586-87 ․”

“In order to sustain his burden of proof with respect to title and possession, the plaintiff must remove the issue from the realm of surmise, guess, conjecture and speculation ․ Where the description of the land that is conveyed by a deed is ambiguous, the court must attempt to ascertain what it was that the parties intended to convey ․”

“The plaintiff has not sustained his burden of proof either with respect to his alleged title to the subaqueous land in question or with respect to the possession of it.   He cannot recover in a trespass action based upon the weakness of the defendant's title.   Moreover, there is no evidence as to the specific location of the defendant's dock except that it adjoins the defendant's upland at some point.   None of the evidence offered to locate the missing course in the plaintiff's deed provides the court with sufficient certainty to satisfy the plaintiff's burden or to permit the court to provide the missing course ․ Therefore, applying the law to the facts found, the plaintiff's request for a permanent injunction is denied and judgment may enter in favor of the defendant ․” (Citations omitted;  internal quotation marks omitted.)  Socha v. Ray, supra, 50 Conn.Sup. 636-39.

As previously stated, in the present action, the plaintiff acknowledges that the deeds to his property are not adequate to establish all the boundaries thereof in that a course is missing from the description of the property in the deed.   He brings this action pursuant to General Statutes § 47-34 in an attempt to clarify the uncertain boundary to his property.

General Statutes § 47-34 provides in relevant part:  “When the boundaries of lands between adjoining proprietors have been lost or become uncertain and they cannot agree to establish the boundaries, one or more of them may bring a complaint to the superior court ․ The court may, upon the complaint, order the lost and uncertain bounds to be erected and established and may appoint a committee of not more than three disinterested property owners.   The committee ․ shall inquire into the facts and erect and establish the lost and uncertain bounds and may employ a surveyor to assist therein and shall report the facts and their doings to the court.   If the court finds that the parties were duly notified, it may confirm such doings ․ and the bounds, so erected and established, shall be the bounds between the proprietors.”

“General Statutes § 47-34, the origin of which is at least one hundred and forty years old ․ has long been recognized in this state as a realistic means of resolving problems [regarding lost and uncertain property boundaries] ․ In this fashion all parties to the boundary have notice and an opportunity to be heard in a procedure of substantially lessened complexity and hostility.”   Cyr v. Sheppard, Superior Court, judicial district of Hartford, Docket No. CV 94 0532649 (November 29, 1996, Sullivan, J.).   As the Appellate Court has explained, under the provisions of this statute, “[t]he mission of the committee is to erect and establish from the evidence boundary lines which have become lost or have disappeared.   The committee does not deal with title ․ Its whole object is the restoration of lost boundaries ․ Proceedings in accordance with what is now General Statutes § 47-34 have no effect on questions of title.”  (Citations omitted.)  Zuliani v. Chipperini, 12 Conn.App. 549, 553, 532 A.2d 1307 (1987).

Applying the transaction test to these actions, it is clear that they both involve the same parties.   Nevertheless, they do not arise from the same transaction.   The first action arose out of a dispute between the parties regarding the defendant's construction of a dock on property that the plaintiff claimed that he owned.   The plaintiff sought damages and a permanent injunction to stop the defendant from trespassing on that property.   The trial court entered judgment in favor of the defendant because the plaintiff did not establish the exact location of the defendant's dock, or that the plaintiff owned or possessed the subaqueous land on which the dock was built.   Although the issue of the boundaries to the plaintiff's property arose in that action, the plaintiff did not bring that action for the purpose of establishing those boundaries.   Moreover, the prior action did not resolve the issue of the location of the missing course, as it instead established that the course was missing.

The second (present) action arises out of the plaintiff's recognition that the boundary to his property is incomplete, as a course pertaining to the subaqueous land is missing in the deed thereto.   He seeks to establish the boundary through the provisions that the legislature established for that purpose in § 47-34.   He does not seek a remedy against the defendant in the second action, in that, as the trial court stated in the prior action, “the deed and maps do not indicate, nor did any of the parties or witnesses contend, that the defendant ever owned any property under the waters of Gardner Lake and it is found that he does not.”  Socha v. Bordeau, supra, 50 Conn.Sup. 634.   In addition, as stated above, the resolution of this action will not resolve the issue of the plaintiff's title to the subaqueous property.   Thus, the two actions were not brought to resolve the same claims.

Nevertheless, under the doctrine of res judicata, a prior judgment “is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose.”  (Internal quotation marks omitted.)  Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589, 674 A.2d 1290 (1996).   Here, once the plaintiff discovered that a course was missing from the boundary to his property, although it is not inconceivable that he could have added a claim to the prior action for a remedy under § 47-34, it was impractical to seek to do so because the nature of the statutory action provides for an entirely different type of a proceeding than a lawsuit based on a tort.

The Supreme Court has recognized that “a decision whether to apply the doctrine of res judicata to claims that have not actually been litigated should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close ․ and the competing interest of the plaintiff in the vindication of a just claim.”  (Citation omitted.)  Id., 591.   For example, in Delahunty, the court concluded that “the policy considerations commonly advanced to justfy the doctrine of res judicata are not compelling in this context and that it would be an inappropriate application of the principles of res judicata to require tort actions based on claims arising between married persons to be litigated in a dissolution proceeding.   Furthermore, because there are significant differences between a tort action and a dissolution action, the maintenance of a separate tort action will not subject the courts and the defendant to the type of piecemeal litigation that the doctrine was intended to prevent.”  Id., 592.

The policy considerations justifying the application of res judicata are also not compelling in the present circumstances.   In addition, there are significant differences between a trespass action and an action seeking to establish a missing boundary brought under § 47-34, such that allowing the plaintiff to proceed with the present action is unlikely to “subject the courts and the defendant to the type of piecemeal litigation that the doctrine was intended to prevent.” ⁶  Id., 592.

Furthermore even if the doctrine of res judicata did apply to bar the plaintiff from pursing the second action, it is apparent that the court may consider whether an exception to its application is appropriate under the circumstances, so that “the effect of the doctrine does not work an injustice.”  (Internal quotation marks omitted.)  Powell v. Infinity Ins. Co., supra, 282 Conn. 602.   The first factor to be considered is whether a public policy interest served by the second action outweighs the interest of finality served by its preclusion.   It is apparent that the plaintiff, as the owner of a property the boundaries of which are lost or uncertain, should be able to use the mechanism that the legislature has enacted to resolve such a deficiency.   The lack of a defined boundary to his property has implications for plaintiff beyond his dispute with the defendant over the location of a dock and are at least as important as the convenience of finality.

The second and third factors, whether the plaintiff's incentive and opportunity to litigate the issue was different in the two forums, also weigh against preclusion.   The principal issue in the prior action was whether the plaintiff had title or possession to the property where the defendant built his dock in connection with a claim of trespass.   The sole issue in an action brought under § 47-34 is the resolution of a lost or uncertain boundary.   As a practical matter, the statute provides a procedural mechanism for the resolution of an issue unavailable in the prior lawsuit in the form of a committee that is authorized to employ a surveyor.   Therefore, the plaintiff's incentive and opportunity to litigate the question of the missing boundary is not the same in the two forums.

As to the fourth factor, the plain language of § 47-34 does not indicate that the legislature intended that the doctrine should, or should not apply.   Therefore, even if the doctrine of res judicata does apply in these circumstances, the court finds that the doctrine should give way and not be applied to preclude this action.

The next question is whether the doctrine of collateral estoppel bars the plaintiff from pursuing the second action.  “The common-law doctrine of collateral estoppel, or issue preclusion ․ is that aspect of res 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 ․

“An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined ․ An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered ․ If an issue has been determined, but the judgment is not dependent [on] the determination of the issue, the parties may relitigate the issue in a subsequent action.   Findings on nonessential issues usually have the characteristics of dicta.”  (Citations omitted;  internal quotation marks omitted.)  Lyon v. Jones, 291 Conn. 384, 406, 968 A.2d 416 (2009).

In the prior action, the plaintiff did not raise the issue of the missing course in his complaint, nor did the defendant raise it in his answer.   Furthermore, although the trial court did refer to the missing course and did state that the omission of that course from the deed to the plaintiff's property was “a critical omission from the point of view of this particular case;” Socha v. Ray, supra, 50 Conn.Sup. 635;  the issue was not necessarily determined, as that term is used in conjunction with collateral estoppel, in that the judgment was not dependent on it.   Instead, the judgment was dependent, inter alia, upon the court's conclusion that “the plaintiff [did] not [sustain] his burden of proof with respect to his alleged title to the subaqueous land in question or with respect to the possession of it.”   (Emphasis added.)  Id., 638.   Furthermore, even if the doctrine of collateral estoppel is applicable, the exception to the doctrine of res judicata discussed above weighs against its application under the present circumstances.

For these reasons, the court finds that the defendant has not met his burden of establishing that the doctrines of res judicata and collateral estoppel bar the present action.

The final issues raised by the defendant's motion are that he is entitled to summary judgment in that:  the plaintiff seeks to use § 47-34 to correct defects in the title to his property, and the statute was not intended to be used for that purpose;  and the relief the plaintiff requests, i.e., a determination of the boundaries to his property “already has been shown to be impossible” in the prior action, and the court is not authorized to reform the plaintiff's deed.

The first of these issue is easily disposed of as it is apparent from the plaintiff's petition that he does not seek to establish his title to the property, but, rather, to locate an uncertain and missing boundary.   The plain language of the statute clearly provides that it may be used for this purpose as it states that, “[w]hen the boundaries of lands between adjoining proprietors have been lost or become uncertain and they cannot agree to establish the boundaries, one or more of them may bring a complaint to the superior court ․” General Statutes § 47-34.

As to the second issue, that the fact that the plaintiff did not sustain his burden of proof as to the missing course in the prior action, demands the conclusion that it forever impossible to do so, is incorrect in light of § 47-34.   Indeed, this statute provides an alternative mechanism by which a missing boundary may be located.   Moreover, contrary to the defendant's argument, the court is not prohibited from reforming the description of a boundary line in a deed.   See F. & AK, Inc. v. Sleeper, 161 Conn. 505, 508, 289 A.2d 905 (1971) (Supreme Court reversed trial court judgment and remanded case to trial court to reform description of boundary line in property deed in accordance with evidence).

CONCLUSION

For all the foregoing reasons, the defendant is not entitled to judgment on the plaintiff's claims as a matter of law.   Accordingly, the defendant's motion for summary judgment is, in all respects, hereby denied.

Peck, J.

FOOTNOTES

FN1. The plaintiff's petition contains a third count.   On March 26, 2009, the court, Peck J., granted the defendant's motion to dismiss as to that count..  FN1. The plaintiff's petition contains a third count.   On March 26, 2009, the court, Peck J., granted the defendant's motion to dismiss as to that count.

FN2. On December 16, 2008, the court, Peck, J., granted Bordeau's motion to be joined as a defendant in the action.   In the motion, Bordeau alleged that he is the successor in interest to the property that was once owned by Samuel Ray. In his response to Bordeau's first motion to dismiss, which was filed in March 2008, the plaintiff argued that Bordeau did not have standing.   At the short calendar hearing on the motion, the court, Peck, J., resolved that issue, finding that “Bordeau has sufficient interest in the subject matter of this action and, therefore, has standing to defend his interests.”  Socha v. Ray, Superior Court, judicial district of New London at Norwich, Docket No. CV 08 5101577 (October 7, 2008, Peck, J.) (46 Conn. L. Rptr. 417, 418 n.5).  (This is the docket number that was assigned to the action when the writ was filed in Norwich.   The action subsequently transferred to New London, and assigned docket number CV 08 5008885)..  FN2. On December 16, 2008, the court, Peck, J., granted Bordeau's motion to be joined as a defendant in the action.   In the motion, Bordeau alleged that he is the successor in interest to the property that was once owned by Samuel Ray. In his response to Bordeau's first motion to dismiss, which was filed in March 2008, the plaintiff argued that Bordeau did not have standing.   At the short calendar hearing on the motion, the court, Peck, J., resolved that issue, finding that “Bordeau has sufficient interest in the subject matter of this action and, therefore, has standing to defend his interests.”  Socha v. Ray, Superior Court, judicial district of New London at Norwich, Docket No. CV 08 5101577 (October 7, 2008, Peck, J.) (46 Conn. L. Rptr. 417, 418 n.5).  (This is the docket number that was assigned to the action when the writ was filed in Norwich.   The action subsequently transferred to New London, and assigned docket number CV 08 5008885).

FN3. On November 7, 2008, the defendant filed a second motion to dismiss on the ground that the court lacks subject matter jurisdiction over the action because the plaintiff's claims are not justiciable.   Specifically, the defendant asserted that the plaintiff's claims are barred by the doctrines of res judicata and/or collateral estoppel in that his claims were already brought before the court in another action that resulted in a judgment in favor of the defendant, and any ancillary issues are moot as their resolution would not result in any practical relief for the plaintiff.   On March 26, 2009, the court, Peck J., denied the motion on the basis that “[r]es 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.”  (Internal quotation marks omitted.)  Socha v. Ray, Superior Court, judicial district of New London, Docket No. CV 08 5008885 (March 26, 2009, Peck, J.), quoting, Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994).In the defendant's first motion to dismiss, which he filed on March 14, 2008, he argued that the court lacked personal jurisdiction over him due to improper service of process, and that the action was barred by the prior pending action doctrine.   On May 12, 2008, the court, Peck, J., denied the defendant's motion as to the ground of lack of personal jurisdiction.   On October 7, 2008, the court, Peck, J., determined that the prior pending action doctrine did not bar the plaintiff's action and, therefore, denied the defendant's motion to dismiss on that ground.  Socha v. Ray, supra, 46 Conn. L. Rptr. 417..  FN3. On November 7, 2008, the defendant filed a second motion to dismiss on the ground that the court lacks subject matter jurisdiction over the action because the plaintiff's claims are not justiciable.   Specifically, the defendant asserted that the plaintiff's claims are barred by the doctrines of res judicata and/or collateral estoppel in that his claims were already brought before the court in another action that resulted in a judgment in favor of the defendant, and any ancillary issues are moot as their resolution would not result in any practical relief for the plaintiff.   On March 26, 2009, the court, Peck J., denied the motion on the basis that “[r]es 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.”  (Internal quotation marks omitted.)  Socha v. Ray, Superior Court, judicial district of New London, Docket No. CV 08 5008885 (March 26, 2009, Peck, J.), quoting, Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994).In the defendant's first motion to dismiss, which he filed on March 14, 2008, he argued that the court lacked personal jurisdiction over him due to improper service of process, and that the action was barred by the prior pending action doctrine.   On May 12, 2008, the court, Peck, J., denied the defendant's motion as to the ground of lack of personal jurisdiction.   On October 7, 2008, the court, Peck, J., determined that the prior pending action doctrine did not bar the plaintiff's action and, therefore, denied the defendant's motion to dismiss on that ground.  Socha v. Ray, supra, 46 Conn. L. Rptr. 417.

FN4. In addition, the plaintiff again, raised the question of whether the defendant has standing to file this pretrial motion.   The court has already resolved that issue;  see footnote 1;  and again concludes that he does, as he has a sufficient interest in the action..  FN4. In addition, the plaintiff again, raised the question of whether the defendant has standing to file this pretrial motion.   The court has already resolved that issue;  see footnote 1;  and again concludes that he does, as he has a sufficient interest in the action.

FN5. Although the defendant filed several documents in support of his motion for summary judgment, he did not provide the court with a copy of the complaint and the judgment in the earlier action.   Nevertheless, the defendant did attach the relevant documents as exhibits to the motion to dismiss that he previously filed in the present action.   Moreover, in deciding a motion for summary judgment that involves issues that pertain to another action, “[t]he trial court has the power to take judicial notice of court files between the same parties.”  (Internal quotation marks omitted.)  Hrywiewicz v. Wilson, 51 Conn.App. 440, 444, 722 A.2d 288 (1999)..  FN5. Although the defendant filed several documents in support of his motion for summary judgment, he did not provide the court with a copy of the complaint and the judgment in the earlier action.   Nevertheless, the defendant did attach the relevant documents as exhibits to the motion to dismiss that he previously filed in the present action.   Moreover, in deciding a motion for summary judgment that involves issues that pertain to another action, “[t]he trial court has the power to take judicial notice of court files between the same parties.”  (Internal quotation marks omitted.)  Hrywiewicz v. Wilson, 51 Conn.App. 440, 444, 722 A.2d 288 (1999).

FN6. Although the litigation between the parties has been extensive, it has not been piecemeal..  FN6. Although the litigation between the parties has been extensive, it has not been piecemeal.

Peck, A. Susan, J.