Manufacturers & Traders Trust Co. v. Virgulak

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Manufacturers & Traders Trust Co. v. Virgulak

MANUFACTURERS & TRADERS TRUST COMPANY
v. THERESA VIRGULAK
(AC 47623)
Suarez, Clark and Westbrook, Js.

Syllabus

The defendant property owner, against whom the plaintiff bank sought to
foreclose on a judgment lien for unpaid property taxes, appealed from the
trial court’s judgment of foreclosure by sale following its granting of the
plaintiff’s motion to dismiss her special defenses and a three count counter-
claim sounding in vexatious litigation. The defendant claimed, inter alia,
that the court improperly granted the plaintiff’s motion to dismiss her coun-
terclaim on the grounds of res judicata and collateral estoppel. In a prior
foreclosure action brought by the plaintiff, the court rendered judgment for
the defendant on all counts of the complaint except the plaintiff’s claim of
unjust enrichment for property tax payments that the plaintiff had made on
the property. Held:

The trial court properly dismissed the defendant’s special defenses because
they constituted impermissible collateral attacks on the judgment in the
prior action, as each special defense sought to contest the validity and
enforceability of the judgment in the prior action, a judgment which the
defendant did not appeal or seek to open, and none of those special defenses
established an entirely obvious lack of jurisdiction on the part of the render-
ing court, such that they were not subject to dismissal.

The trial court improperly concluded that the defendant’s counterclaim was
barred by res judicata, as a claim alleging vexatious litigation may not be
brought in the same action as that which the defendant claims is vexatious,
and, therefore, the defendant was required to wait until the prior action
had terminated before bringing her vexatious litigation claims.

The trial court improperly concluded that the doctrine of collateral estoppel
was applicable to the defendant’s counterclaim, as none of the issues that
the defendant sought to litigate by way of her counterclaim were determined
by the court in the prior action, nor were they necessary to its decision.
Argued April 23—officially released June 24, 2025

Procedural History

Action to foreclose a judgment lien on certain real
property owned by the defendant, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk, where the court, Hon. Charles T.
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Manufacturers & Traders Trust Co. v. Virgulak

Lee, judge trial referee, granted the plaintiff’s motion
to dismiss the defendant’s special defenses and counter-
claim; thereafter, the court, Hon. John F. Kavanewsky,
Jr., judge trial referee, rendered judgment of foreclo-
sure by sale, from which the defendant appealed to this
court. Reversed in part; further proceedings.
Alexander H. Schwartz, for the appellant (defen-
dant).
Brian D. Rich, with whom, on the brief, was Jenna
T. Cutler, for the appellee (plaintiff).
Opinion

CLARK, J. In this action to foreclose on a judgment
lien, the defendant, Theresa Virgulak, appeals from the
decision of the trial court granting the motion filed by
the plaintiff, Manufacturers & Traders Trust Company,
also known as M&T Bank, to dismiss her special
defenses and counterclaim and from the subsequent
judgment of foreclosure by sale. On appeal, the defen-
dant claims that the court improperly granted the plain-
tiff’s motion to dismiss her (1) three special defenses
and (2) three count counterclaim sounding in vexatious
litigation. We disagree with the defendant’s first claim
but agree with her second claim.1 We therefore affirm
in part and reverse in part the judgment of the court.
1
Although the defendant’s principal appellate brief does not label her
challenges to the dismissal of her special defenses and counterclaim as
separate claims, we divide our discussion of the special defenses and coun-
terclaim into two separate sections of this opinion in light of our decision
to affirm the judgment of the trial court as to the special defenses and
reverse the judgment as to the counterclaim.
The defendant also claims on appeal that the trial court should have
retroactively applied our Supreme Court’s decision in JPMorgan Chase
Bank, National Assn. v. Essaghof, 336 Conn. 633, 249 A.3d 327 (2020), to
bar the plaintiff from recovery of property tax payments. In light of our
conclusion in part I of this opinion that the defendant’s second special
defense—which asserted the same claim—constituted an impermissible col-
lateral attack on a judgment rendered in a prior foreclosure action involving
the same parties, we reject this claim.
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The following facts, as previously set forth by this
court, and procedural history are relevant to this appeal.
In 2013, JPMorgan Chase Bank, National Association
(JPMorgan Chase), commenced a foreclosure action
(prior action) against the defendant and her husband,
Robert J. Virgulak (Robert). ‘‘On or about December
11, 2006, [Robert] executed and delivered to [JPMorgan
Chase] a note for a loan in the principal amount of
$533,000 (note). The defendant was not a signatory on
the note. On the same date, the defendant signed a
document titled ‘Open-End Mortgage Deed’ (mortgage)
for residential property she owns at 14 Bayne Court in
Norwalk (property). The mortgage recited that it was
given to secure a note dated December 11, 2006, and
recited that the note was signed by the defendant as
‘Borrower’ in the amount of $533,000. The term ‘Bor-
rower’ is defined in the mortgage deed as ‘THERESA
VIRGULAK, MARRIED.’ The mortgage did not reference
Robert. The defendant did not sign any guarantee.

‘‘On or about February 1, 2010, after JPMorgan Chase
failed to receive payments in accordance with the terms
of the note, the note went into default and JPMorgan
Chase elected to accelerate the balance due. . . . [I]n
February, 2013, JPMorgan Chase commenced [the
prior] action against the couple. The action sought to
foreclose the mortgage that JPMorgan Chase claimed
to have on the property. In September, 2014, JPMorgan
Chase withdrew the [prior] action against Robert, as
he had filed for bankruptcy and been granted an uncon-
ditional discharge of the debt.

‘‘Thereafter, JPMorgan Chase filed a motion to substi-
tute party plaintiff, stating that it had assigned the sub-
ject mortgage deed and note to Hudson City Savings
Bank (Hudson). This motion was granted by the court
[Heller, J.] on August 18, 2015.
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‘‘On September 25, 2015, the defendant filed a motion
for summary judgment arguing that Hudson was pre-
cluded from foreclosing the mortgage. In particular, she
argued that she had not defaulted under the terms of
the note because she was never a party to a promissory
note with the plaintiff or any of its predecessors-in-
interest. The motion was denied by the court [Hon.
Kevin Tierney, judge trial referee] on January 14, 2016,
on the basis of the court’s determination that an issue
of material fact remained with respect to whether the
mortgage deed provided reasonable notice to third par-
ties that the defendant was securing Robert’s obligation.
‘‘On March 18, 2016, the defendant served Hudson
with requests for admission. On May 6, 2016, Hudson
filed notice with the court that it had responded to the
defendant’s requests.
‘‘On August 9, 2016, [the plaintiff], into which Hudson
had merged, filed a motion to substitute itself as the
party plaintiff and requested leave to amend the com-
plaint in order to add two additional causes of action.
The court [Heller, J.] granted the motion on August 15,
2016. In the first count of the plaintiff’s three count
amended complaint, the plaintiff sought a judgment of
foreclosure against [the defendant and Robert]. In the
second count, it sought equitable reformation of the
note in order to include the defendant as a borrower
on the note. In the third count, the plaintiff pleaded
that the defendant had been unjustly enriched because
(1) the proceeds of the note were used to pay off loans
which she was obligated to pay and (2) she had free
use of the subject property without satisfying the terms
of the mortgage, which she had executed. . . .
‘‘On April 12, 2017 [following a trial before the court,
Hon. David R. Tobin, judge trial referee], the court
issued its memorandum of decision. The court found
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in favor of the defendant on the foreclosure and refor-
mation counts of the complaint. In particular, the court
stated, among other things, that ‘[t]he court finds that
the plaintiff has not sustained its burden of proving, by
clear and convincing evidence, that it [was] entitled to
the equitable remedy of reformation of the mortgage
deed . . . . Accordingly, the court finds the issues on
the second count for [the defendant] and against the
plaintiff. Since the plaintiff failed to present any author-
ity to the court which would allow the plaintiff to prevail
on the first count [foreclosure claim] in the absence of
reformation of the mortgage deed, the court [also] finds
the issues on the first count for [the defendant] and
against the plaintiff.’
‘‘The court then proceeded to address the plaintiff’s
unjust enrichment claim, noting that the defendant had
been benefitted in several respects as a result of the loan
that Robert had obtained . . . . The court ultimately
determined that the plaintiff’s responses to the [defen-
dant’s] requests for admissions [in which the plaintiff
admitted, inter alia, that the defendant did not owe any
money to the plaintiff] precluded any recovery on its
unjust enrichment claim, except for the property tax
payments that the defendant conceded that she owed
to the plaintiff.’’ (Footnotes omitted.) JPMorgan Chase
Bank, National Assn. v. Virgulak, 192 Conn. App. 688,
692–97, 218 A.3d 596 (2019), aff’d, 341 Conn. 750, 267
A.3d 753 (2022). The court found that the plaintiff was
entitled to $65,807.96 in damages on the unjust enrich-
ment count for the property taxes that it had paid on
the property.
The plaintiff appealed, and the judgment was
affirmed both by this court and by our Supreme Court.
See id., 692. The defendant did not appeal, nor did she
move to open the judgment. On March 7, 2022, following
the affirmance of the judgment by our Supreme Court,
the plaintiff filed a motion for judgment in accordance
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with our Supreme Court’s opinion, which the court,
Spader, J., granted on April 28, 2022. The court’s April
28, 2022 order provided in relevant part: ‘‘Upon review
of the record, the court grants the plaintiff’s motion as
to count three of the complaint. Judgment shall enter
for the plaintiff on count three for financial damages
in the amount of $65,807.96 as of the date of trial. . . .’’
On June 28, 2022, the defendant commenced an
action against JPMorgan Chase, Hudson, and the plain-
tiff, in which she asserted three counts sounding in
common-law and statutory vexatious litigation pursu-
ant to General Statutes § 52-568.2 See generally Virgulak
v. JPMorgan Chase Bank, N.A., Superior Court, judicial
district of Stamford-Norwalk, Docket No. CV-22-
6057307-S (vexatious litigation action). In her revised
complaint dated September 12, 2022, the defendant
alleged in relevant part that the prior action had termi-
nated in her favor and that the plaintiff, JPMorgan
Chase, and Hudson had commenced and prosecuted
the prior action with malice and without probable
cause. Her complaint did not challenge the validity of,
or otherwise mention, the damages award for property
taxes on the unjust enrichment count that had been
rendered by the trial court in favor of the plaintiff in
the prior action. The defendant subsequently withdrew
the vexatious litigation action on May 8, 2023, prior
to trial.
On February 22, 2023, while the vexatious litigation
action was still pending, the plaintiff commenced the
present action. In its complaint, the plaintiff alleged
2
General Statutes § 52-568 provides: ‘‘Any person who commences and
prosecutes any civil action or complaint against another, in his own name
or the name of others, or asserts a defense to any civil action or complaint
commenced and prosecuted by another (1) without probable cause, shall
pay such other person double damages, or (2) without probable cause, and
with a malicious intent unjustly to vex and trouble such other person, shall
pay him treble damages.’’
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that, on May 9, 2022, shortly after Judge Spader granted
its motion for judgment in accordance with our
Supreme Court’s decision, it had caused a judgment
lien on the property—based on the judgment in the
prior action—to be recorded in the Norwalk town
clerk’s office. The plaintiff further alleged that the judg-
ment had never been paid in whole or in part. It sought
foreclosure of the judgment lien, prejudgment and post-
judgment interest, costs, a reasonable attorney’s fee,
and such other relief as the court deemed just and
proper.
On May 2, 2023, the defendant filed an answer, special
defenses, setoff, and counterclaim. She set forth three
special defenses: (1) that the ‘‘plaintiff is barred from
pursuing this action on account of its actions in the
[prior action]’’ (first special defense); (2) that the ‘‘plain-
tiff is barred from pursuing this action because it ille-
gally and unlawfully sought in personam to collect funds
from the defendant instead of pursuing a deficiency
judgment’’ (second special defense); and (3) that,
‘‘[b]ecause the plaintiff lost the [prior] action between
the parties in the Superior Court, the Appellate Court,
and the Supreme Court, it had no right to collect real
estate taxes in the [prior] action,’’ rendering the ‘‘judg-
ment it seeks to enforce . . . void’’ (third special
defense). In her setoff, which immediately followed her
special defenses, the defendant requested that,
‘‘[s]hould the [court] find that the judgment [in the prior
action] is valid and enforceable, any funds the defen-
dant owes should be set off against any judgment the
defendant receives through her [counterclaim].’’ In her
counterclaim, the defendant set forth three counts
sounding in common-law and statutory vexatious litiga-
tion that mirrored those she had asserted in her com-
plaint in the vexatious litigation action.
On May 10, 2023, the plaintiff filed a motion to dismiss
the defendant’s counterclaim and special defenses,
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accompanied by a memorandum of law. The plaintiff
argued therein that the defendant’s three special
defenses and counterclaim were barred by res judicata
and collateral estoppel.3 In particular, the plaintiff
argued that ‘‘[t]he . . . subject[s] of these special
defenses and [the counterclaim] were conclusively liti-
gated and decided by the Superior Court [in the prior
action]; indeed, they were essential to the court’s enter-
ing of judgment in the first place.’’ The plaintiff also
argued that the defendant ‘‘had a full and fair opportu-
nity to plead and litigate her claims and defenses in
[the prior] action,’’ ‘‘[t]he court reviewed the claims
provided and entered its ruling accordingly,’’ and ‘‘all
of these claims have had a ruling by way of the Superior
Court’s entry of final judgment . . . .’’
The defendant filed an objection to the motion to
dismiss on July 10, 2023. In her objection, the defendant
argued, inter alia, that her second and third special
defenses were supported by JPMorgan Chase Bank,
National Assn. v. Essaghof, 336 Conn. 633, 650, 249
A.3d 327 (2020), in which our Supreme Court held that,
in the context of a strict foreclosure action, the only
procedure available to a plaintiff to recover its mortgage
3
We note that, in the heading of the section of the memorandum of law
that addressed res judicata, the plaintiff made no mention of the counter-
claim, stating only: ‘‘The special defenses are also barred by the doctrine
of res judicata.’’ However, in the body of its argument within that section,
the plaintiff argued that ‘‘[the defendant’s] defenses, as well as the factual
basis for her purported [counterclaim] . . . could have been—and were—
raised in the [prior] action’’ and further claimed that res judicata barred the
defendant from litigating ‘‘her claims and defenses’’ in the present action.
(Emphasis added.) Moreover, the motion to dismiss itself argued that ‘‘both
the [special] defenses and [counterclaim] are barred by the doctrines of res
judicata and collateral estoppel . . . .’’ Finally, the defendant’s principal
appellate brief, which refers to the plaintiff’s motion to dismiss as a motion
‘‘to dismiss the counterclaim and special defenses based on res judicata
and collateral estoppel’’ and accuses the plaintiff of impermissibly ‘‘rais[ing]
collateral estoppel or res judicata as a defense to . . . the [counterclaim],’’
makes clear that the defendant understood the plaintiff to be arguing that
both res judicata and collateral estoppel barred the counterclaim.
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debt—including payments advanced to pay real estate
taxes—is a deficiency judgment. The plaintiff filed a
reply on July 11, 2023.
On October 11, 2023, the court, Hon. Charles T. Lee,
judge trial referee, issued a memorandum of decision
in which it granted the plaintiff’s motion to dismiss. The
court determined that each special defense asserted by
the defendant was invalid. With respect to the first
special defense, the court concluded that it was defi-
cient because (1) it failed to allege any relevant facts
in violation of the requirements of Practice Book § 10-
1,4 and (2) ‘‘the court finds no actions taken by the
plaintiff in the [prior] action which would prevent it
from seeking to enforce the judgment against the defen-
dant for recoupment of taxes.’’ With respect to the sec-
ond special defense, the court determined that the plain-
tiff ‘‘was under no obligation to seek a deficiency
judgment’’ and that Essaghof did not apply because
‘‘the present case is not . . . a [strict foreclosure] pro-
ceeding. . . . Rather . . . the monetary award of
$65,807.96 was granted under the third count [in the
prior action] for unjust enrichment in failing to comply
with the mortgage’s contractual requirement of paying
taxes on the mortgaged property.’’ With respect to the
third special defense, the court concluded that it was
invalid because the defendant’s contention that the
plaintiff had ‘‘lost’’ the prior action was, in the court’s
view, ‘‘not consistent with the pleadings or facts in the
4
Practice Book § 10-1 provides: ‘‘Each pleading shall contain a plain and
concise statement of the material facts on which the pleader relies, but not
of the evidence by which they are to be proved, such statement to be divided
into paragraphs numbered consecutively, each containing as nearly as may
be a separate allegation. If any such pleading does not fully disclose the
ground of claim or defense, the judicial authority may order a fuller and
more particular statement; and, if in the opinion of the judicial authority
the pleadings do not sufficiently define the issues in dispute, it may direct
the parties to prepare other issues, and such issues shall, if the parties differ,
be settled by the judicial authority.’’
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record,’’ in that the plaintiff had ‘‘won the third count,
and its claim for recovery of taxes it paid on the mort-
gaged property was specifically authorized by every
court to consider the question.’’ As for the counterclaim,
the court concluded that the defendant’s vexatious liti-
gation claims were barred by res judicata and collateral
estoppel. In particular, the court concluded that the
present action was not based on the foreclosure and
equitable reformation counts on which the plaintiff had
lost in the prior action but, rather, on the unjust enrich-
ment count, on which the plaintiff had received the
$65,807.96 damages award for property tax payments.
It accordingly stated that ‘‘[t]he finding that this action
is based on the affirmed claim for money damages in the
[prior action] . . . clearly satisfies the requirements of
the doctrines of res judicata and collateral estoppel,
rendering this counterclaim invalid.’’
The plaintiff thereafter filed a motion for summary
judgment as to liability, which the court, Hon. John F.
Kavanewsky, Jr., judge trial referee, granted on Febru-
ary 21, 2024. On March 15, 2024, the plaintiff filed a
motion for a judgment of foreclosure by sale, which
the court granted on May 1, 2024. This appeal followed.5
I
The defendant claims that the trial court should have
permitted her to raise her special defenses in the con-
text of the present case because her obligation to reim-
burse the plaintiff for property tax payments flowed
from the plaintiff’s alleged misconduct in instituting and
maintaining the prior action. In response, the plaintiff
argues, inter alia, that the special defenses constituted
impermissible collateral attacks on the judgment in the
prior action.6 We agree with the plaintiff.
5
On October 30, 2023, pursuant to Practice Book § 61-5, the defendant
filed a notice of intent to appeal from Judge Lee’s October 11, 2023 decision
granting the plaintiff’s motion to dismiss.
6
Because the trial court did not dismiss the special defenses on this
ground, we construe the plaintiff’s principal appellate brief as raising an
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The following legal principles and standards of
review are relevant to our review of this claim. ‘‘A collat-
eral attack is an attack upon a judgment, decree or
order offered in an action or proceeding other than that
in which it was obtained, in support of the contentions
of an adversary in the action or proceeding . . . .’’
(Internal quotation marks omitted.) Patrick v. 111
Clearview Drive, LLC, 224 Conn. App. 401, 410, 313
A.3d 391 (2024). ‘‘Black’s Law Dictionary defines the
phrase ‘collateral attack’ as, inter alia, ‘[a]n attack on
a judgment in a proceeding other than a direct appeal;
esp., an attempt to undermine a judgment through a
judicial proceeding in which the ground of the proceed-
ing (or a defense in the proceeding) is that the judgment
is ineffective.’ ’’ Id., 411 n.9. ‘‘A court properly may dis-
miss a case that constitutes an improper collateral
alternative ground to affirm the trial court’s judgment. It is well established
that, ‘‘[w]here the trial court reaches a correct decision but on [alternative]
grounds, this court has repeatedly sustained the trial court’s action if proper
grounds exist to support it. . . . [W]e . . . may affirm the court’s judgment
on a dispositive [alternative] ground for which there is support in the trial
court record.’’ (Citation omitted; internal quotation marks omitted.) Pequon-
nock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 599, 790 A.2d 1178
(2002). Affirmance of a judgment on an alternative ground is proper when
the issue presents a question of law, the essential facts of which are undis-
puted and over which our review is plenary, and when our consideration
of the issue will not subject the appellant to prejudice or unfair surprise.
See, e.g., Grady v. Somers, 294 Conn. 324, 349 n.28, 984 A.2d 684 (2009).
In the present case, the question of whether the defendant’s special
defenses constituted impermissible collateral attacks on the judgment in
the prior action presents a question of law, over which our review is plenary.
See, e.g., Ciarleglio v. Martin, 228 Conn. App. 241, 257–58, 325 A.3d 219,
cert. denied, 350 Conn. 920, 325 A.3d 218 (2024). No essential facts pertinent
to this claim are in dispute. Moreover, the plaintiff raised this alternative
ground for affirmance in its principal appellate brief, and, although she
elected not to do so, the defendant had the opportunity to file a reply brief.
See, e.g., Sanchez v. Commissioner of Correction, 203 Conn. App. 752,
761, 250 A.3d 731 (observing that appellant will suffer no prejudice from
consideration of alternative grounds for affirmance when appellant ‘‘has
the opportunity to respond to [those] grounds in the reply brief’’ (internal
quotation marks omitted)), cert. denied, 336 Conn. 946, 251 A.3d 77 (2021).
Accordingly, we consider the alternative ground for affirmance advanced
by the plaintiff.
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attack on a judgment. . . . The reason for this is that
the court can offer no practical relief to the party collat-
erally attacking the prior judgment, rendering the action
nonjusticiable.’’ (Citation omitted.) Peck v. Statewide
Grievance Committee, 198 Conn. App. 233, 248, 232
A.3d 1279 (2020).
‘‘[I]t is well settled that [f]inal judgments are . . .
presumptively valid . . . and collateral attacks on their
validity are disfavored. . . . The reason for the rule
against collateral attack is well stated in these words:
The law aims to invest judicial transactions with the
utmost permanency consistent with justice. . . . Pub-
lic policy requires that a term be put to litigation and
that judgments, as solemn records upon which valuable
rights rest, should not lightly be disturbed or over-
thrown. . . . [T]he law has established appropriate
proceedings to which a judgment party may always
resort when he deems himself wronged by the court’s
decision. . . . If he omits or neglects to test the sound-
ness of the judgment by these or other direct methods
available for that purpose, he is in no position to urge
its defective or erroneous character when it is pleaded
or produced in evidence against him in subsequent pro-
ceedings.’’ (Citation omitted; internal quotation marks
omitted.) Sousa v. Sousa, 322 Conn. 757, 771, 143 A.3d
578 (2016).
‘‘[U]nless a litigant can show an absence of subject
matter jurisdiction that makes the prior judgment of a
tribunal entirely invalid, he or she must resort to direct
proceedings to correct perceived wrongs, rather than
to a collateral proceeding. . . . [T]o sustain a collateral
attack on a judgment, the lack of jurisdiction must be
entirely obvious and . . . the alleged deficiency must
amount to a fundamental mistake that is so plainly
beyond the court’s jurisdiction that its entertaining the
action was a manifest abuse of authority.’’ (Citation
omitted; emphasis in original; internal quotation marks
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Manufacturers & Traders Trust Co. v. Virgulak

omitted.) Schoenhorn v. Moss, 347 Conn. 501, 515, 298
A.3d 236 (2023). ‘‘Additionally, [i]f a court has never
acquired jurisdiction over a defendant [by proper ser-
vice of process] . . . any judgment ultimately entered
is void and subject to vacation or collateral attack.’’
(Internal quotation marks omitted.) Patrick v. 111
Clearview Drive, LLC, supra, 224 Conn. App. 411. ‘‘[A]
court does not truly lack subject matter jurisdiction if
it has competence to entertain the action before it. . . .
Lesser procedural irregularities . . . do not make a
final judgment void.’’ (Citations omitted; internal quota-
tion marks omitted.) Meinket v. Levinson, 193 Conn.
110, 115, 474 A.2d 454 (1984).
The question of whether the defendant’s special
defenses constituted impermissible collateral attacks
on the judgment in the prior action presents a question
of law, over which our review is plenary. See, e.g.,
Boyajian v. Planning & Zoning Commission, 206
Conn. App. 118, 124, 259 A.3d 699 (2021). To the extent
that our resolution of this issue requires us to interpret
the defendant’s answer, special defenses, setoff, and
counterclaim, that, too, presents a question of law over
which our review is plenary. See, e.g., Perez v. Cumba,
138 Conn. App. 351, 367, 51 A.3d 1156 (construction of
pleadings is question of law subject to plenary review),
cert. denied, 307 Conn. 935, 56 A.3d 712 (2012).
Each of the defendant’s special defenses in the pres-
ent case asserted that the judgment upon which the
plaintiff sought to foreclose—and which the defendant
had neither appealed nor sought to open—was ineffec-
tive, by pointing to various alleged defects in the manner
in which that judgment was rendered. The first special
defense claimed that the plaintiff’s unspecified ‘‘actions
in the [prior action]’’ precluded it from foreclosing on
the lien; the second claimed that the judgment ‘‘illegally
and unlawfully’’ had been obtained by means other than
a deficiency judgment; and the third claimed that ‘‘the
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Manufacturers & Traders Trust Co. v. Virgulak

judgment [the plaintiff] seeks to enforce is void’’
because the plaintiff ‘‘had no right to collect real estate
taxes in the [prior] action.’’ Moreover, the setoff imme-
diately following the special defenses—which
requested that, ‘‘[s]hould the [court] find that the judg-
ment [in the prior action] is valid and enforceable,
any funds the defendant owes should be set off against
any judgment the defendant receives through her [coun-
terclaim]’’—underscores that the special defenses
sought to contest the validity and enforceability of the
judgment in the prior action. (Emphasis added.) As
such, we conclude that the three special defenses con-
stituted collateral attacks on that judgment. Cf., e.g.,
Warner v. Brochendorff, 136 Conn. App. 24, 35, 43 A.3d
785 (special defense in judgment lien foreclosure claim-
ing that underlying judgment was obtained through
fraud and was unenforceable because plaintiff had
induced court to employ improper measure of damages
constituted impermissible collateral attack), cert.
denied, 306 Conn. 902, 52 A.3d 728 (2012).
Having concluded that the special defenses consti-
tuted collateral attacks on the judgment, we now con-
sider whether they nonetheless established an ‘‘entirely
obvious’’ lack of jurisdiction on the part of the rendering
court, such that they were not subject to dismissal. We
note at the outset that none of the special defenses
claimed that the court in the prior action failed to obtain
personal jurisdiction over the defendant by improper
service of process. With respect to subject matter juris-
diction, neither the first special defense’s vague asser-
tion that the plaintiff’s ‘‘actions in the [prior action]’’
precluded it from foreclosing on the lien in the present
case, nor the third special defense’s conclusory asser-
tion that the plaintiff had ‘‘no right to collect real estate
taxes in the [prior] action’’ because it ‘‘lost’’ that action,
make a colorable showing—let alone an obvious one—
that the rendering court was somehow incompetent to
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entertain the prior action, including the plaintiff’s claim
for unjust enrichment. As such, we readily conclude
that the first and third special defenses amounted to
impermissible collateral attacks.
With respect to the second special defense, which
challenged the plaintiff’s right to recover property taxes
on the basis of our Supreme Court’s holding in
Essaghof, we conclude that this collateral attack was
impermissible as well. Nothing in Essaghof indicates
that the holding of that case upon which the defendant
relied in pleading her second special defense—namely,
that a trial court in a strict foreclosure proceeding may
not order a defendant to reimburse the plaintiff for
property tax payments outside of a deficiency judg-
ment—is jurisdictional. Indeed, the word ‘‘jurisdiction’’
does not appear in Essaghof; nor did our Supreme
Court, in concluding in that case that the trial court’s
order directing the defendants to reimburse the plaintiff
for property taxes was an abuse of discretion,7 order
that the plaintiff’s claim for reimbursement of property
taxes be dismissed. Cf., e.g., Pelc v. Southington Dental
Associates, P.C., 232 Conn. App. 393, 413, A.3d
(2025), petition for cert. filed (Conn. May 27, 2025) (No.
240383). Rather, our Supreme Court in Essaghof framed
the issue on appeal as ‘‘whether the trial court’s order
[in that case] requiring the defendants to reimburse the
plaintiff for tax and insurance premium advancements
was a valid exercise of the court’s equitable authority’’
in light of the statutory scheme governing strict foreclo-
sure proceedings; (emphasis added) JPMorgan Chase
Bank, National Assn. v. Essaghof, supra, 336 Conn.
7
The very fact that our Supreme Court in Essaghof reviewed the trial
court’s order under an abuse of discretion standard further indicates the
nonjurisdictional character of its holding. Cf., e.g., Pennymac Corp. v. Tar-
zia, 215 Conn. App. 190, 200 n.8, 281 A.3d 469 (2022) (declining to apply
abuse of discretion standard in reviewing trial court’s conclusion that it had
subject matter jurisdiction because ‘‘[t]he issue of subject matter jurisdiction
is not a matter of discretion’’).
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639; which presents a question distinct from that of the
court’s subject matter jurisdiction. See, e.g., Amodio
v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999)
(explaining that, ‘‘[a]lthough related, the court’s author-
ity to act pursuant to a statute is different from its
subject matter jurisdiction’’ and that latter addresses
court’s ‘‘authority or competence to decide the class of
cases to which the action belongs’’ whereas former
concerns ‘‘the way in which [the court’s] power [to hear
and determine] must be exercised in order to comply
with the terms of the statute’’ (internal quotation marks
omitted)). As such—even if we assume that the plaintiff
could not seek damages for property taxes in the prior
action without running afoul of Essaghof—in relying on
Essaghof to claim, in the present case, that the plaintiff
‘‘illegally and unlawfully’’ had procured the judgment
in the prior action without pursuing a deficiency judg-
ment, the defendant was not raising an ‘‘entirely obvi-
ous’’ claim that the rendering court lacked subject mat-
ter jurisdiction. The second special defense, therefore,
also constituted an impermissible collateral attack.
For the foregoing reasons, we conclude that the
defendant’s three special defenses constituted imper-
missible collateral attacks on the judgment in the prior
action. The court therefore properly dismissed the spe-
cial defenses.
II
The defendant also claims that the court improperly
concluded that her counterclaim was barred by res
judicata and collateral estoppel. In response, the plain-
tiff argues that the defendant’s counterclaim sought to
use ‘‘the facade of vexatious litigation to obtain another
opportunity to relitigate the [prior] judgment’’ and to
‘‘relitigate issues that were already decided by a trial
court, [this court], and [our] Supreme Court . . . .’’ The
plaintiff also argues, as alternative grounds for
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affirmance, that the counterclaim did not state a legally
sufficient claim for vexatious litigation and that it con-
stituted an impermissible collateral attack on the judg-
ment in the prior action. We agree with the defendant
and are unpersuaded by the alternative grounds for
affirmance advanced by the plaintiff.8
We note, at the outset of our analysis, that the plain-
tiff’s claims that the counterclaim was barred by res
judicata and collateral estoppel should have been
asserted as affirmative defenses. See, e.g., Wells Fargo
Bank, National Assn. v. Doreus, 218 Conn. App. 77, 82
n.5, 290 A.3d 921 (‘‘[r]es judicata and collateral estoppel
are affirmative defenses that may be waived if not prop-
erly pleaded’’), cert. denied, 347 Conn. 904, 297 A.3d
198 (2023); Elder v. Kauffman, 204 Conn. App. 818,
824, 254 A.3d 1001 (2021) (‘‘res judicata properly is
raised by means of a special defense and . . . generally
is not raised by a motion to dismiss’’). We nonetheless
address the merits of the trial court’s application of the
doctrines of res judicata and collateral estoppel to the
counterclaim, as the parties have asked us to do,
because the trial court’s dismissal of the counterclaim
on that basis indicates that the issue is likely to arise on
remand.9 Under these circumstances, judicial economy
8
Because the trial court did not decide the issue, and the plaintiff has
not raised it on appeal, we express no view as to whether the counterclaim
satisfies the transaction test for counterclaims set forth in Practice Book
§ 10-10, which provides in relevant part: ‘‘In any action for legal or equitable
relief, any defendant may file counterclaims against any plaintiff . . . pro-
vided that each such counterclaim . . . arises out of the transaction or one
of the transactions which is the subject of the plaintiff’s complaint . . . .’’
9
Notwithstanding the plaintiff’s failure properly to plead res judicata and
collateral estoppel, the record does not reflect that the defendant ever
objected to the plaintiff’s claims that the counterclaim was barred by res
judicata and collateral estoppel on the basis that those claims had not been
raised in the appropriate manner. Therefore, if we did not reach the merits
of the trial court’s application of res judicata and collateral estoppel to the
counterclaim, upon remand, the plaintiff would be entitled to raise those
preclusion claims. See, e.g., Singhaviroj v. Board of Education, 124 Conn.
App. 228, 234, 4 A.3d 851 (2010); Carnese v. Middleton, 27 Conn. App. 530,
537, 608 A.2d 700 (1992).
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counsels in favor of our resolving the defendant’s claim
as it has been framed for and submitted to us.
A
We begin with the trial court’s conclusion that the
counterclaim was barred by res judicata and collateral
estoppel. The following legal principles and standard
of review are relevant to our analysis. ‘‘The applicability
of the doctrines of res judicata or collateral estoppel
presents a question of law, over which our review is
plenary.’’ Somers v. Chan, 110 Conn. App. 511, 526, 955
A.2d 667 (2008). ‘‘Under the doctrine of res judicata [or
claim preclusion], a final judgment, when rendered on
the merits, is an absolute bar to a subsequent action,
between the same parties or those in privity with them,
upon the same claim.’’ (Internal quotation marks omit-
ted.) Milford v. Andresakis, 52 Conn. App. 454, 460,
726 A.2d 1170, cert. denied, 248 Conn. 922, 733 A.2d
845 (1999). ‘‘In order for res judicata to apply, four
elements must be met: (1) the [prior] judgment must
have been rendered on the merits by a court of compe-
tent jurisdiction; (2) the parties to the prior and subse-
quent actions must be the same or in privity; (3) there
must have been an adequate opportunity [in the prior
action] to litigate the [omitted claim] fully; and (4) the
same underlying claim must be at issue.’’ (Internal quo-
tation marks omitted.) Solon v. Slater, 345 Conn. 794,
825, 287 A.3d 574 (2023). ‘‘[T]he essential concept of
the modern rule of [res judicata] is that a judgment
against [a party] is preclusive not simply when it is on
the merits but when the procedure in the first action
afforded [the party] a fair opportunity to get to the
merits.’’ (Internal quotation marks omitted.) Weiss v.
Weiss, 297 Conn. 446, 459, 998 A.2d 766 (2010).
‘‘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
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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 determina-
tion, and in fact determined. . . . An issue is necessar-
ily 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. . . . Before collateral estoppel applies [how-
ever] there must be an identity of issues between the
prior and subsequent proceedings. To invoke collateral
estoppel the issues sought to be litigated in the new
proceeding must be identical to those considered in the
prior proceeding. . . . In other words, collateral estop-
pel has no application in the absence of an identical
issue. . . . Further, an overlap in issues does not
necessitate a finding of identity of issues for the pur-
poses of collateral estoppel.’’ (Internal quotation marks
omitted.) Elwell v. Kellogg, 220 Conn. App. 822, 840–41,
299 A.3d 1166, cert. denied, 348 Conn. 927, 304 A.3d
861 (2023).
‘‘In Connecticut, the cause of action for vexatious
litigation exists both at common law and pursuant to
statute. Both the common law and statutory causes
of action [require] proof that a civil action has been
prosecuted . . . . Additionally, to establish a claim for
vexatious litigation at common law, one must prove
want of probable cause, malice and a termination of
suit in the plaintiff’s favor. . . . The statutory cause of
action for vexatious litigation exists under § 52-568, and
differs from a common-law action only in that a finding
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of malice is not an essential element, but will serve as
a basis for higher damages. . . . In the context of a
claim for vexatious litigation, the defendant lacks prob-
able cause if he [or she] lacks a reasonable, good faith
belief in the facts alleged and the validity of the claim
asserted.’’ (Internal quotation marks omitted.) Rockwell
v. Rockwell, 196 Conn. App. 763, 769–70, 230 A.3d
889 (2020).
We do not agree with the trial court’s conclusion
that the defendant’s counterclaim, which sounded in
common-law and statutory vexatious litigation and
sought money damages on the basis of the plaintiff’s
conduct in connection with the claims that the defen-
dant actually prevailed on in the prior action, was
barred by res judicata on the basis of the judgment
rendered in the prior action. In order for res judicata
to bar a claim, the party asserting that claim must have
had an adequate opportunity fully to litigate it in the
prior action. See, e.g., Solon v. Slater, supra, 345 Conn.
825. It is well established, however, that ‘‘a counterclaim
alleging vexatious litigation may not be brought in the
same action as that which the defendant claims is vexa-
tious’’; Somers v. Chan, supra, 110 Conn. App. 542; see
also, e.g., U.S. Bank National Assn. v. Bennett, 195
Conn. App. 96, 105, 223 A.3d 381 (2019); moreover, this
court previously has affirmed the dismissal, on ripeness
grounds, of a vexatious litigation action predicated on
a separate action that had not yet fully terminated. See
Scalise v. East Greyrock, LLC, 148 Conn. App. 176, 184,
85 A.3d 7, cert. denied, 311 Conn. 946, 90 A.3d 976
(2014). The reason for these decisions is straightfor-
ward: ‘‘[A] claim for vexatious litigation requires a plain-
tiff to allege that the previous lawsuit was initiated
maliciously . . . [and that this] prior litigation termi-
nated in [her] favor’’; (emphasis in original; internal
quotation marks omitted) Somers v. Chan, supra, 542;
which she cannot do while the action she claims to be
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vexatious remains pending. The defendant, thus, could
not have litigated her vexatious litigation claims in the
context of the prior action, because that was the very
action that she claimed was vexatious. She was required
to wait until the prior action had terminated before
bringing her vexatious litigation claims.
We also disagree with the trial court that the defen-
dant’s counterclaim was barred by collateral estoppel.
None of the issues that the defendant sought to litigate
by way of her counterclaim—namely, whether the prior
action was brought with malice or whether the plaintiff
lacked probable cause, i.e., a ‘‘reasonable, good faith
belief’’ in the facts alleged—were determined by the
court in the prior action, nor were they necessary to
its decision. Rather, a review of Judge Tobin’s memo-
randum of decision in the prior action reveals that his
decision addressed the following issues: the parties’
intent in signing the mortgage deed, in the context of
a claim seeking equitable reformation of the deed;10
whether, in the absence of reformation of the deed, the
plaintiff would be able to prevail on its foreclosure
claim; whether the defendant had received benefits for
which she unjustly failed to pay the plaintiff, to the
plaintiff’s detriment; whether the merits of the prior
action would be served, or the defendant prejudiced,
by permitting the plaintiff to withdraw certain factual
admissions it previously had made; whether the defen-
dant had waived her right to rely on those admissions;
and whether the defendant’s special defenses, none of
which raised the same issues presented by the counter-
claim,11 precluded the plaintiff from recovering dam-
ages for property taxes. As such, the doctrine of collat-
eral estoppel was inapplicable. The trial court’s
10
In its complaint in the prior action, the plaintiff sought equitable reforma-
tion of the note, rather than the mortgage deed. In its posttrial brief, however,
it changed its position and sought reformation of the deed rather than
the note.
11
The defendant asserted the following special defenses in the prior action:
‘‘(1) the plaintiff misapplied funds paid on the loan in contravention to the
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dismissal of the counterclaim on the basis of res judi-
cata and collateral estoppel was therefore improper.
B
We now turn to the alternative grounds for affirmance
advanced by the plaintiff. First, the plaintiff argues that
the counterclaim did not state a legally sufficient claim
for vexatious litigation because ‘‘the instant matter,
which [the defendant] claims amounts to vexatious liti-
gation, was brought to enforce the sole count of the
[prior action] that was entered in [the plaintiff’s] favor.’’
(Emphasis omitted.) We reject this argument. Insofar
as the plaintiff challenges the legal sufficiency of the
counterclaim, rather than the court’s jurisdiction to
entertain it, it raises a basis for striking, rather than
dismissing, the counterclaim. See, e.g., Bruno v. Travel-
ers Cos., 172 Conn. App. 717, 723 n.6, 161 A.3d 630
(2017) (observing that ‘‘[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,’’ whereas ‘‘the motion to strike attacks
the sufficiency of the pleadings’’ (internal quotation
marks omitted)). Moreover, the counterclaim did not
allege that the present action amounted to vexatious
litigation; rather, it alleged that the prior action
amounted to vexatious litigation.12 The plaintiff’s argu-
ment therefore attacks the sufficiency of a claim that
the defendant did not raise.
loan documents; (2) the plaintiff failed to give proper notice of default and
acceleration; (3) the parties entered into an oral forbearance agreement;
(4) the plaintiff acted in a commercially unreasonable manner with respect
to the [defendant and Robert’s] obligations under the loan; (5) the plaintiff
violated the implied covenant of good faith and fair dealing; (6) the mortgage
debt was discharged in bankruptcy proceedings filed by Robert; (7) the
determination of the United States Bankruptcy Court that the note executed
by Robert was unsecured estops the plaintiff from claiming a security interest
in [the property]; [and] (8) the plaintiff’s claims are barred by the applicable
statute of limitations.’’
12
Although the plaintiff’s principal appellate brief is not a model of clarity,
we do not understand the plaintiff to argue that the defendant cannot estab-
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Second, the plaintiff contends that the counterclaim
constituted an impermissible collateral attack on the
judgment in the prior action. Although our Supreme
Court has cautioned that vexatious litigation claims
may operate as impermissible collateral attacks in the
absence of a favorable termination of the action alleged
to be vexatious; see, e.g., DeLaurentis v. New Haven,
220 Conn. 225, 251, 597 A.2d 807 (1991); the plaintiff
does not expressly argue, and indeed appears to avoid
making any claim, that the defendant cannot satisfy the
favorable termination requirement with respect to the
prior action. See footnote 12 of this opinion. Moreover,
the counterclaim does not make any claims as to the
validity or enforceability of the judgment for property
taxes and, indeed, does not even mention it. The plain-
tiff’s argument therefore fails.
The judgment is reversed with respect to the dis-
missal of the defendant’s counterclaim and the case is
remanded for further proceedings consistent with this
opinion; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.

lish that the prior action terminated in her favor simply because the plaintiff
obtained a money judgment in connection with the unjust enrichment count.
To the contrary, the plaintiff expressly—and correctly—concedes that,
under certain limited circumstances, ‘‘a claim for vexatious litigation can
be brought even if the [prior] action was only partially terminated in [the
defendant’s] favor.’’ See, e.g., Scalise v. East Greyrock, LLC, supra, 148
Conn. App. 183 n.10; see also, e.g., Janetka v. Dabe, 892 F.2d 187, 190 (2d
Cir. 1989). Because the parties have not briefed the question, we express
no view as to whether those circumstances apply in the present case.