Opinion
MMXCV115008096S.
12-27-2012
LUONGO CONSTRUCTION AND DEVELOPMENT, LLC v. James MacFARLANE.
Frank P. Cannatelli, Law Offices of Frank P. Cannatelli, Wallingford, CT, for Luongo Construction and Development, LLC. Vincent McManus Jr., Vincent T. McManus, Jr. P.C., Wallingford, CT, for James MacFarlane.
UNPUBLISHED OPINION
Frank P. Cannatelli, Law Offices of Frank P. Cannatelli, Wallingford, CT, for Luongo Construction and Development, LLC.
Vincent McManus Jr., Vincent T. McManus, Jr. P.C., Wallingford, CT, for James MacFarlane.
LISA KELLY MORGAN, Judge.
The defendant, James MacFarlane, moves to dismiss this action on the ground that there is a prior action pending in the judicial district of New Haven that involves the same parties and issues as those involved in the present case. The plaintiff, Luongo Construction and Development, LLC, responds that this action should not be dismissed because it was filed prior to the New Haven action and this case does not involve the same parties and issues as those involved in the New Haven action.
Both cases arise out of the construction of a modular home. In the present case, the plaintiff (the builder) alleges that it completed the construction of a modular home for the defendant (the purchaser), but the defendant failed to pay the full amount due for the services the plaintiff performed. The plaintiff in this action is suing the defendant for breach of contract and civil theft.
In the New Haven action, captioned MacFarlane v. Luongo Construction and Development, LLC, Docket No. NNH CV 12 6028525, the plaintiff, James MacFarlane, alleges that the defendant, Luongo Construction and Development, LLC, failed to construct the modular home in accordance with the terms of the parties' contract and that the defendant, Apex Homes, Inc. (the modular home manufacturer), failed to comply with its statutory warranty obligations. The plaintiff in the New Haven action is suing the defendant, Luongo Construction and Development, LLC, for breach of contract, violation of the New Home Construction Contractors Act, breach of statutory express and implied warranties and violation of the Connecticut Unfair Trade Practices Act, and the defendant, Apex Homes, Inc., for breach of statutory warranties. The defendant, Luongo Construction and Development, LLC, has answered the plaintiff's complaint and filed special defenses. The defendant, Apex Homes, Inc., has not appeared in the action.
" [A]lthough a motion to dismiss is the proper vehicle to raise the issue of a prior pending action, the doctrine does not truly implicate subject matter jurisdiction." (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 403, 973 A.2d 1229 (2009). " [T]he prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction ... The rule, however, is not one of unbending rigor, nor of universal application, nor a principle of absolute law ... Accordingly, the existence of claims that are virtually alike does not, in every case, require dismissal of a complaint." (Citations omitted; emphasis added; internal quotation marks omitted .) Id., at 395-96.
When ruling on a motion to dismiss under the prior pending action doctrine, the court should examine the pleadings to determine whether both actions: " (1) arise from the same factual background, (2) include the same parties and (3) seek the same goals or objectives." Modzelewski v. William Raveis Real Estate, Inc., 65 Conn.App. 708, 714, 783 A.2d 1074, cert. denied, 258 Conn. 948, 788 A.2d 96 (2001). When analyzing whether the prior pending action doctrine applies, " the trial court must determine in the first instance whether the two actions are: (1) exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction; (2) virtually alike, i.e., brought to adjudicate the same underlying rights of the parties, but perhaps seeking different remedies; or (3) insufficiently similar to warrant the doctrine's application." (Emphasis in original; internal quotation marks omitted.) Bayer v. Showmotion, Inc., supra, 292 Conn. at 397. " If the two actions are exactly alike or lacking in sufficient similarities, the trial court has no discretion. In the former case, the court must dismiss the second action, and in the latter instance, the court must allow both cases to proceed unabated. Where the actions are virtually, but not exactly alike, however, the trial court exercises discretion in determining whether the circumstances justify dismissal of the second action." Id., at 398.
The first issue to be determined by the court is which case was filed first. The defendant submits that the New Haven action was filed first. The plaintiff claims that the present action was filed first. A review of the pleadings in both cases reveals the following. The plaintiff in this case filed a prejudgment remedy application on November 2, 2011. The application, which was commenced by service of a proposed unsigned writ, summons and complaint on the defendant on November 16, 2011, was granted by the court on March 21, 2012. Thereafter, the plaintiff served a signed writ, summons and complaint on the defendant on May 3, 2012. The plaintiff in the New Haven action commenced suit by serving a signed writ, summons and complaint on the defendants on April 4, 2012.
It is well settled in Connecticut that an action is not commenced against a defendant until the defendant has been served with a signed writ, summons and complaint. Rana v. Ritacco, 236 Conn. 330, 337-38, 672 A.2d 946 (1996); see also Raynor v. Hickock Realty Corp., 61 Conn.App. 234, 240-42, 763 A.2d 54 (2000) (prejudgment remedy application served upon the defendant lacked signed writ of summons and complaint, therefore action was not commenced by such service). Consequently, the dates on which the plaintiff filed and served its prejudgment remedy application (which included an unsigned writ, summons and complaint) do not determine the commencement date of this action. Since the return of service in this case indicates that the signed writ, summons and complaint were served on the defendant on May 3, 2012, the court concludes that this action was commenced on May 3, 2012. Furthermore, since the return of service in the New Haven action indicates that the signed writ, summons and complaint were served on the defendants therein on April 4, 2012, the court concludes that the New Haven action was commenced on April 4, 2012, prior to the action that is presently before this court.
An examination of the pleadings in this action and the New Haven action also reveals that although the cases arise from the same factual background and seek similar goals or objectives, the parties are not identical and the claims asserted in each case are sufficiently different to allow both cases to proceed unabated. The New Haven action includes a defendant (Apex Homes, Inc.) who is not a party to this action. In the present action, the plaintiff is suing the defendant for the remaining balance claimed due for the construction of the modular home. In the New Haven action, the plaintiff is suing the defendants for defects in the construction of a modular home and breach of various statutory warranties and obligations. The argument of the defendant in this case that the claims made by the plaintiff herein are the same as those being made by it in the New Haven case by way of its answer and special defense do not affect the court's analysis. The answer and special defenses in the New Haven case are neither claims nor counterclaims, and hence do not affect the prior pending action doctrine analysis. Moreover, the mere fact that the pleadings in the New Haven action are closed and the case is on the trial list is not a sufficient reason to dismiss the present case where the pleadings have not yet been closed.
" The prior pending action doctrine applies equally to claims and counterclaims." Conti v. Murphy, 23 Conn.App. 174, 178, 579 A.2d 576 (1990). Nevertheless, the " doctrine only applies to claims which set forth a cause of action. See Cole v. Associated Construction Co., 141 Conn. 49 (1954). The prior pending action doctrine does not apply to special defenses." Connecticut Housing Finance Authority v. Tobin, Superior Court, judicial district of Fairfield, Docket No. CV 93 0302899 (May 9, 1995, Rodriguez, J.).
Applying the principles set forth above, the court finds that while this action and the New Haven are similar, they involve different parties, assert different claims and seek different remedies. Accordingly, in the exercise of its discretion, the court finds that the circumstances do not justify dismissal of the present case. The defendant's motion to dismiss this action based on the prior pending action doctrine is therefore DENIED.
SO ORDERED.