# Zizka v. Water Pollution Control Authority

> Supreme Court of Connecticut · April 16, 1985 · 195 Conn. 682

URL: https://www.frixlaw.com/law-library/cases/7839193

## Case

- **Full name:** Jeffrey P. Zizka v. Water Pollution Control Authority of the Town of Windham
- **Court:** Supreme Court of Connecticut
- **Decided:** April 16, 1985
- **Citations:** 195 Conn. 682; 490 A.2d 509; 1985 Conn. LEXIS 753
- **Precedential status:** Published
- **Opinion:** Concurrence by Shea
- **Judges:** Parskey, Shea
- **Cited by:** 385 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7839193

## How later opinions describe it (automated extraction)

- applying apparent policy underlying 28 U.S.C. § 1341 to Connecticut courts and holding plaintiff payors of sewer assessments could not bring section 1983 claims for, inter alia, for damages, where General Assembly had fashioned an exclusive and adequate remedial system for cha…
- applying rationale in Fair Assessment to conclude that availability of adequate state remedy “forecloses the plaintiffs § 1983 claims ... in state court”
- holding General Statutes § 7-250 to be, for federal purposes, a plain, speedy and efficient remedy

## Opinion text

Shea, J.,
concurring. I agree with the result and the opinion except for the part concluding that a prior determination of a jurisdictional issue cannot be made the basis of a motion to dismiss under Practice Book § 142.
The ground for dismissal was lack of jurisdiction over the subject matter as permitted by Practice Book § 143 (1). There is nothing in the Practice Book that precludes a party from relying upon a prior final determination of the same jurisdictional issue to establish this ground. We have frequently said that jurisdiction must be determined whenever and however it is raised before the merits of a cause can be adjudicated. Aaron v. Conservation Commission, 178 Conn. 173,178 , 422 A.2d 290 (1979); Valley Cable Vision, Inc. v. Public Utilities Commission, 175 Conn. 30, 32 , 392 A.2d 485 (1978). “[Wjhenever a question of lack of jurisdiction is brought to the attention of the court, that issue must be decided before any further action is taken, and the issue of jurisdiction must be disposed of regardless of the form of the motion.” Salamandra v. Kozlowski, 173 Conn. 136, 139 , 376 A.2d 1103 (1977). It is quite inconsistent with that heretofore unquestioned principle to hold that a claim of res judicata going to subject matter jurisdiction must await the appropriate time for summary judgment, which requires the closing of the pleadings with attendant discovery proceedings, upon all the other issues in a case before it can be resolved. Practice Book § 379.
I would find, nevertheless, that the dismissal of the earlier action does not act as a bar to the fresh consideration of the jurisdictional issue that the court has *692 undertaken, because the present action is significantly different from the earlier one and the prior determination did not resolve the jurisdictional issues now raised. The gist of the previous determination is contained in the following sentence of the memorandum of decision in the first action: “But, after all that can be said on this subject, it must finally come to this, that this court lacks jurisdiction to hear and determine a 42 U.S.C. Sec. 1983 claim as part of a statutory appeal under Connecticut General Statutes, Sec. 7-250; and that this court lacks jurisdiction to award equitable relief on the basis of 42 U.S.C. Sec. 1983 where no such remedy is available under State law.”
The present action does not join a § 1983 claim with a statutory appeal; nor does a determination that “this court lacks jurisdiction to award equitable relief” under § 1983 resolve the issue of whether damages may be available under that statute as now claimed. Those issues were not within the scope of the judgment dismissing the prior suit and, therefore, neither res judicata nor collateral estoppel is applicable. See Slattery v. Maykut, 176 Conn. 147, 159 , 405 A.2d 76 (1978).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7839193. Public record. Not legal advice.