Opinion
No. CV 03 0196844
April 15, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS
This is an application for a prejudgment remedy by the plaintiff, Raymond Vogt, to attach property belonging to the defendant, Jeffrey Purcell. At the hearing on September 29, 2003, there was discussion among court and counsel concerning the relationship between this suit and the prior action between these same two parties, Purcell v. Vogt, CV99 0175088, a jury case tried in November of 2002. In connection with that case, Judge Adams of this court wrote a memorandum of decision dated April 30, 2003 regarding a motion to set aside the verdict, remittitur, punitive damages and several related matters.
Thereafter, the defendants in this case filed motion #106 to dismiss the application for a prejudgment remedy and the underlying case on grounds of res judicata and collateral estoppel because of the prior case between the two parties.
A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court. Zish v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). "A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 298, 524 A.2d 636 (1987). Whenever a court lacks jurisdiction over the subject matter, the court shall dismiss the action. Practice Book § 10-33.
However, neither res judicata nor collateral estoppel implicate a court's subject matter jurisdiction. Rosenfield v. McCann, 33 Conn. App. 760, 762, 638 A.2d 631 (1994). Res judicata and collateral estoppel must be pleaded as special defenses. Ramsdell v. Union Trust Co., 202 Conn. 57, 65, 519 A.2d 1185 (1987). Accordingly, defendants' claims of res judicata and/or collateral estoppel are not applicable to a motion to dismiss and said motion is therefore denied.
The plaintiff should reclaim the application for a prejudgment attachment to the special proceedings or miscellaneous calendar.
William B. Lewis, Judge (TR)