Opinion
No. DN CV 07 026460 S
May 8, 2007
MEMORANDUM OF DECISION RE: MOTION TO DISMISS
Whether the court should grant the defendant's motion to dismiss on the ground that the prior pending action doctrine bars the plaintiffs' claim. The court denies the defendant's motion.
FACTS
This claim arises out of an agreement (the agreement) between the parties in which the defendant, George Briggs, is obligated to pay the plaintiffs 25 percent of the net revenues generated from his use of a property located at 401 Greenwich Avenue, Greenwich, CT. The following procedural history is relevant to the disposition of the defendant's motion.
On or about May 23, 2003 (the first action), the plaintiffs, Alfred Briggs, Nancy Debolt, Theresa Bridgman, Roger Briggs and Patricia Briggs, filed a one count complaint against the defendant, George Briggs. Therein, the plaintiffs alleged that the defendant was in default of the agreement for the years 2001, 2002 and 2003. On June 8, 2004, this court, pursuant to a stipulated judgment between the parties, entered judgment in favor of the plaintiffs.
The first action was entitled Briggs v. Briggs, Superior Court, judicial district of Stamford-Norwalk at Norwalk Housing Session, Docket No. 03 06 5873.
On or about January 17, 2007, the plaintiffs filed this two count complaint against the defendant. In their first count, the plaintiffs claim that the defendant has failed to pay them the accurate amount of net revenues for the years 2004, 2005 and 2006, and that the defendant has taken unauthorized deductions. In count two, the plaintiffs allege that the defendant has "failed and refused to accurately account to the plaintiffs despite due demand."
On March 12, 2007, the defendant filed a motion to dismiss on the ground that the prior pending action doctrine bars the plaintiffs from bringing the present action. Thereafter, on April 11, 2007, the plaintiffs filed an objection to the defendant's motion.
DISCUSSION
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). "[I]n ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). Although "the prior pending action rule does not truly implicate the subject matter jurisdiction of the court. . . . the motion to dismiss [is] the proper device by which to request that the trial court dismiss the second action." (Citations omitted.) Halpern v. Board of Education, 196 Conn. 647, 652 n. 4, 495 A.2d 264 (1985).
In support of his motion to dismiss, the defendant argues that the first action is still pending and that both the present action and the first action are "essentially identical." The defendant maintains that, rather than institute another action, the plaintiffs are obligated to seek enforcement or compliance with the stipulated judgment from the first action. The plaintiffs respond by asserting that the first action is no longer pending, and, as such, the prior pending action doctrine does not apply to the present case. Alternatively, they argue that, as their allegations in the present case are sufficiently different from those in the first action, the prior pending action doctrine is inapplicable.
"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." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998). "The policy behind the prior pending action doctrine is to prevent unnecessary litigation that places a burden on our state's already crowded court dockets." (Internal quotation marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988). "[T]he trial court has broad discretion in applying the prior pending action doctrine." (Internal quotation marks omitted.) Anastasio v. CT Page 6435 Saint Raphael Healthcare System, Inc., Superior Court, judicial district of New Haven, Docket No. CV 04 0489151 (July 6, 2005, Lopez, J.). "The law regarding when an action should be dismissed under the [prior pending action] doctrine is to some degree obscure and there is no clear, definite and workable rule to be applied generally." (Internal quotation marks omitted.) Harbor Vista Associates Ltd. Partnership v. Yankee Management, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0143141 (February 21, 1995, D `Andrea, J.). Finally, "[t]he fact that there was at one time an action which is between the same parties, is the same character, and has been brought to achieve the same objective . . . does not abate the current action if that former action is terminated at any time prior to the hearing on a plea in abatement in the second action." (Citation omitted; internal quotation marks omitted.) Hughes v. Budny, Superior Court, judicial district of Litchfield, Docket No. CV 96 0070449 (November 18, 1996, Pickett, J.) ( 18 Conn. L. Rptr. 187).
To begin, the plaintiffs correctly note that the first action is no longer pending. "A stipulated judgment has been defined by our Supreme Court as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement." (Emphasis added; citations omitted; internal quotation marks omitted.) Woodside Village-Stratford Assn. v. Hertzmark, 36 Conn. App. 73, 75, 647 A.2d 759 (1994). An examination of the record from the first action indicates that on June 8, 2004, pursuant to a stipulated judgment, this court entered judgment on behalf of the plaintiffs. As the stipulated judgment marked the end of the first action in the form of a final judgment, the present action is not subject to dismissal.
The court may take judicial notice of a file from another action. Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995).
Additionally, although the plaintiffs, pursuant to General Statutes § 52-351b, did pursue some postjudgment discovery following the first action, the court has held that "§ 52-351b creates a proceeding that is separate and distinct from the prior adjudication leading to the judgment debt. . . ." Presidential Capital Corp. v. Reale, 240 Conn. 623, 633, 692 A.2d 794 (1997). Further, the defendant has provided no authority, nor could the court find any, holding that postjudgment discovery effectively opens a final judgment. Accordingly, it is submitted that the postjudgment discovery did not reinstate the first action for purposes of the prior pending action doctrine.
General Statutes § 52-35 lb (a) provides, in relevant part, that "[a] judgment creditor may obtain discovery from the judgment debtor, or from any third person the judgment creditor reasonably believes, in good faith, may have assets of the judgment debtor, or from any financial institution to the extent provided by this section, of any matters relevant to satisfaction of the money judgment."
Further, even assuming that the first action is still pending, an examination of the pleadings shows that the two actions are not "virtually alike." In Hunting v. Chambers, 99 Conn. App. 664, 916 A.2d 56 (2007), the court examined similar circumstances in which the defendant asserted that the prior pending action doctrine barred the plaintiff from bringing another suit. In that case, the plaintiff, a landlord, commenced a summary process action against the defendant, his tenant, based upon the defendant's failure to pay rent from November, 2002, through March, 2003. Id., 666. The first action resulted in a stipulated judgment on behalf of the plaintiff. Id. Subsequently, the plaintiff commenced a collection action to enforce the stipulated judgment. Id. While the collection action was pending, the plaintiff instituted a third action in which he claimed that the defendant failed to pay rent from May 1, 2003, through April 11, 2004. Id. In that third action, the plaintiff also sought damages for conversion. Id. The court denied the defendant's motion to dismiss, concluding that the third action "was not subject to dismissal pursuant to the prior pending action doctrine because it sought unpaid rent for a different period of time . . . and damages for conversion, neither of which was alleged in the stipulated judgment action." Id., 668.
In the present case, the plaintiffs seek payment for the years 2004, 2005 and 2006, while in the first action, they sought payment for the years 2000, 2001, 2002 and 2003. Additionally, in the present case, the plaintiffs allege that the defendant has failed "to accurately account" to them. In their complaint from the first action, however, the plaintiffs make no mention of the defendant's failure to provide an accurate accounting. Accordingly, under Hunting, the two pleadings are sufficiently different to defeat the defendant's motion to dismiss. For the foregoing reasons, the court denies the defendant's motion to dismiss.