Opinion
HHDCV155039939S
01-11-2016
Roger Emerick v. Denise Emerick
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS #110
Cesar A. Noble, J.
The defendant, Denise Emerick, has moved to dismiss the amended complaint filed by the plaintiff, Roger Emerick, in its entirety based on the ground that the plaintiff's amended complaint is barred by the prior pending action doctrine. For the following reasons, the court denies the defendant's motion in part and grants it in part.
FACTS AND PROCEDURAL HISTORY
The following facts and procedural history are relevant to the present motion to dismiss. The parties were married on February 11, 1994. On or about June 3, 2014, the defendant filed a complaint in the family division of the Superior Court for the judicial district of Hartford, requesting a dissolution of the parties' marriage (dissolution action). The defendant requested an equitable distribution of the parties' property, alimony, and any other relief that she may be entitled to in law or equity. The plaintiff, the defendant in the dissolution action, filed a cross complaint in that action, requesting a divorce based on a fraudulent contract pursuant to General Statutes § 46b-40(c)(4) and an annulment of the marriage pursuant to General Statutes § 46b-40(b). The plaintiff requested an annulment due to alleged fraudulent representations made by the defendant at the time of marriage and further alleged fraud during marriage " by [her] being given my income purportedly for our 'marriage and future' while acting to procure her own home and savings, and declining full time work [and] income." The court, Ficeto, J., entered a judgment of dissolution on June 25, 2015, and also distributed the property and assets among the parties. On July 2, 2015, the plaintiff filed a motion for extension of time to file an appeal and subsequently filed an appeal with the Appellate Court on August 19, 2015. That appeal is currently pending before the Appellate Court.
The facts presented are those that are alleged in the plaintiff's amended complaint. The court notes that the June 25, 2015 judgment of dissolution that dissolved the parties' marriage to one another discusses many of these same factual allegations. See Emerick v. Emerick, Superior Court, judicial district of Hartford, Docket No. FA-14-4073480-S, (June 25, 2015, Ficeto, J.)
The court takes judicial notice of the pleadings contained in the file for the dissolution action. See, e.g., Bayer v. Showmotion, Inc., 292 Conn. 381, 393 n.8, 973 A.2d 1229 (2009) (" [T]he trial court properly could have taken judicial notice of the contents of the prior pending file").
On July 3, 2015, the plaintiff commenced this action by service of process on the defendant at her place of abode. Subsequently, the plaintiff filed a ten-count complaint with the court on July 13, 2015. On August 12, 2015, the defendant filed a motion to dismiss, claiming that the plaintiff failed to file the summons and complaint with the clerk six days before the return day, as required by General Statutes § 52-46a. Moreover, the defendant claimed that the plaintiff's action should be dismissed pursuant to the prior pending action doctrine.
On August 13, 2015, the plaintiff filed a motion to amend the return day, which was filed without an objection. On that same day, the plaintiff also filed the amended complaint that is presently before this court, adding three additional claims to his cause of action (civil action). Counts one and two of the plaintiff's amended complaint collectively allege that the defendant committed fraud and fraudulent nondisclosure based on the following facts. Prior to marrying the defendant, the plaintiff inquired of the defendant whether there was anything from the defendant's past that he should be aware of that could be of a detriment to the marriage. The plaintiff alleges that the defendant failed to inform him that she suffered sexual abuse as a child. The plaintiff asserts that, had the defendant answered truthfully, he would not have married her and claims damages. He further alleges in count two that the defendant fraudulently misrepresented that a prenuptial agreement was not required because the defendant would not seek the plaintiff's property, savings, or assets should the marriage fail.
Count three alleges that, in 2002, the plaintiff permitted the defendant to take control of his assets after he incurred a debt of $150,000 due to stock market losses in day trading. He consented to the defendant's management of his assets under the assumption that the defendant would act for their mutual benefit The plaintiff alleges fraud, claiming that the defendant's conduct was simply a ploy to obtain the plaintiff's assets for the defendant's own financial gain.
In counts four, five, six, and seven, the plaintiff alleges, respectively, breach of a fiduciary duty, unjust enrichment, quantum meruit, and a violation of a constructive trust. The alleged facts creating the basis for these allegations are similar to those presented in count three. Specifically, the plaintiff alleges that the defendant was a professional bookkeeper and that, acting in that capacity, the plaintiff provided the defendant with all of his net income under the assumption that she would use that income for the benefit of the parties' marriage. He alleges that the defendant failed to discuss the marital finances with him and that the defendant collected nearly $1 million from the plaintiff that she used for her own financial gain. Essentially, the plaintiff seeks compensation for the defendant's misappropriation of marital funds.
In count eight, the plaintiff alleges a violation of either an express or an implied verbal contract. As alleged, the basis for this claim is that, at the time the parties consummated their marriage on February 11, 1994, both promised " [t]o have and to hold from this day forward, for better or worse, for richer or for poorer, in sickness and in health, to love and to cherish, till death do us part." By seeking a divorce, the plaintiff claims that the defendant failed to maintain the marriage and breached this verbal contract. Moreover, he claims that the defendant violated this contract when she utilized his net income, which he gave to her for the benefit of the marriage, for her own financial gain.
In count nine, the plaintiff alleges that the defendant is liable for malicious prosecution based on " faux charges of violence." As alleged, the plaintiff claims that the defendant fabricated two separate incidents of domestic abuse and violence, the first of which occurred on Christmas Eve, 2012, and the second occurred on Mother's Day, 2013, in order to obtain a superior position in the dissolution action. Although the criminal charges were eventually nolled, the plaintiff was arrested as a result of the Mother's Day incident, and this arrest was published in a local newspaper.
In counts ten and eleven, the plaintiff alleges that the defendant is liable for both slander and libel. These claims are based upon the defendant's alleged communications with friends and family regarding the plaintiff's supposed physical harming of the defendant. Moreover, the plaintiff claims that the defendant's conduct caused the " libelous" publication of his arrest to be made in the local newspaper.
Finally, in counts twelve and thirteen, the plaintiff alleges that the defendant is liable for both intentional and unintentional infliction of emotional distress. The plaintiff bases these claims on the totality of the defendant's conduct, including her clandestine plans to divorce the plaintiff, her failure to disclose childhood abuse, her " faux abuse" charges, and " destroying his finances in a biased court." Moreover, the plaintiff claims that, prior to the dissolution action, the defendant's step-daughter and the stepdaughter's children lived at the parties' marital home for a period of time. During that time, the plaintiff had grown close to the step-daughter's children and referred to them as his " grandchildren." He alleges that the defendant's conduct has prevented him from maintaining any sort of relationship with these grandchildren, thereby contributing to his severe emotional distress
On August 20, 2015, the defendant filed a motion to dismiss (#107), accompanied by a memorandum of law (#108), claiming that the plaintiff's amended complaint should be dismissed pursuant to the prior pending action doctrine. The plaintiff filed an opposition to this motion on September 4, 2015 (#109). On September 29, 2015, the defendant filed an amended motion to dismiss (#110), accompanied by a memorandum of law (#111), to clarify that her prior motion was intended to apply to the plaintiff's entire amended complaint. The plaintiff timely filed an opposition on October 16, 2015 (#112). On October 19, 2015, the parties appeared before this court and argued this motion at short calendar. The court now provides the following memorandum of decision.
DISCUSSION
A
Before addressing the merits of the parties' arguments, this court addresses well established principles of law that govern the court's assessment of the present amended motion to dismiss. " [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). Our rules of practice state that " [a] motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." Practice Book § 10-30(a). In ruling on a motion to dismiss, the court construes the complaint and the facts contained therein in a manner most favorable to the nonmoving party. Cuozzo v. Orange, 315 Conn. 606, 614-15, 109 A.3d 903 (2015).
The defendant argues that the plaintiff's thirteen-count amended complaint in the present civil action should be dismissed pursuant to the prior pending action doctrine. Specifically, the defendant argues that the amended complaint should be dismissed, in its entirety, because it is virtually alike to the dissolution action that is currently on appeal and because the civil action arises from the same factual background, includes the same parties, and seeks the same goals or objectives as the dissolution action. Moreover, the defendant argues that the plaintiff is simply attempting to re-litigate issues that were resolved or are still pending in the dissolution action appeal. In response, the plaintiff argues that the civil action presently before the court is unlike the dissolution action. Specifically, the plaintiff argues that he intentionally chose not to pursue his civil claims in the dissolution action and that case law permits him to bring post-dissolution civil claims against an ex-spouse.
Although not listed in our rules of practice and not truly implicating subject matter jurisdiction, " a motion to dismiss is the proper vehicle to raise the issue of a prior pending action . . ." (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 403, 973 A.2d 1229 (2009); see also Kleinman v. Chapnick, 140 Conn.App. 500, 503 n.5, 59 A.3d 373 (2013) (prior pending action doctrine properly raised via motion to dismiss). " [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." (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., supra, 395-96. " This rule, which is not one of unbending rigor or universal application . . . is not a rule of subject matter jurisdiction but of justice and equity, generally applicable and always where the two suits are virtually alike." (Citation omitted.) Nielsen v. Nielsen, 3 Conn.App. 679, 682, 491 A.2d 1112 (1985).
" The plea in abatement . . . has . . . been replaced by the motion to dismiss." (Citation omitted.) Halpern v Board of Education, 196 Conn. 647, 652 n.4, 495 A.2d 264 (1985).
" In order to invoke the prior pending action doctrine, the party seeking dismissal must establish that there is actually a current pending lawsuit. Various Superior Courts have refused to dismiss cases based upon the prior pending action doctrine when the prior action is not actually pending." (Citation omitted; internal quotation marks omitted.) Sanford v. Gorton, Superior Court, judicial district of Fairfield, Docket No. CV-09-4028647-S, (September 16, 2009, Bellis, J.). Nonetheless, the prior pending action doctrine is properly raised when the prior action is currently on appeal. See, e.g., Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216-18, 719 A.2d 465 (1998) (court applied prior pending action doctrine analysis to plaintiff's civil action claiming inverse condemnation when plaintiff's administrative appeal on variance denial was pending before Superior Court); Beaudoin v. Town Oil Co., 207 Conn. 575, 589-90, 542 A.2d 1124 (1988) (plaintiff timely filed notice of intent to appeal prior action, thus permitting application of prior pending action doctrine in case before the court).
In addressing a motion to dismiss based upon the prior pending action doctrine, a court must engage in a two-step process. First, the court must consider " 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. In order to determine whether the actions are virtually alike, [the court] must examine the pleadings . . . to ascertain whether the actions are brought to adjudicate the same underlying rights of the parties . . . [Second], [i]f 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." (Citations omitted; emphasis in original; internal quotation marks omitted.) Bayer v. Showmotion, Inc., supra, 292 Conn. 397-98, see also Lodmell v. LaFrance, 154 Conn.App. 329, 333-34, 107 A.3d 975 (2014), cert. denied, 315 Conn. 921, 107 A.3d 959 (2015) (outlining same framework).
Notably, " [t]he applicability of the prior pending action doctrine does not turn on whether the two actions seek the same remedy . . . but . . . whether they are brought to adjudicate the same underlying rights ." (Citation omitted; emphasis added; internal quotation marks omitted.) Bayer v. Showmotion, Inc., supra, 292 Conn. 399; see also Kleinman v. Chapnick, supra, 140 Conn.App. 506 (" The key question is whether the two actions are brought to adjudicate the same underlying rights").
B
As required by the Bayer v. Showmotion, Inc. framework, this court begins by determining whether the two actions at issue are exactly alike, virtually alike, or are insufficiently similar. For the reasons stated below, the court finds that some of the counts contained in the plaintiff's amended complaint are insufficiently similar to the dissolution action and, therefore, do not warrant application of the prior pending action doctrine. Nonetheless, the court finds that other counts contained in the plaintiff's amended complaint are virtually alike to those litigated in the dissolution action, thus permitting the court to proceed to the second step of the Bayer v. Showmotion, Inc. framework. The court will include additional facts or allegations as necessary.
A court may apply the prior pending action doctrine to particular counts of a complaint. See, e.g., Pecan v. Madigan, 97 Conn.App. 617, 621-23, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007) (noting that prior pending action doctrine applied to counts one and three of complaint, but not to counts two and four).
1
Civil Action Counts that are Insufficiently Similar to the Dissolution Action
The court begins by noting that, at first blush, the pleadings in the two cases appear to be dissimilar to one another. In the defendant's complaint for the dissolution action, she sought dissolution of the parties' marriage, an equitable distribution of the parties' property, alimony, and any other relief in law or equity that she was entitled to receive. In his cross complaint for the dissolution action, the plaintiff sought dissolution based on fraudulent contract; General Statutes § 46b-40(c)(4); an annulment for fraudulent misrepresentations; General Statutes § 46b-40(b); and requested that the parties retain their current assets and that no alimony be awarded. The plaintiff's current civil action against the defendant comprises of thirteen counts, including allegations of fraud, breach of fiduciary duty, unjust enrichment, quantum meruit, violation of a constructive trust, violation of express or implied contracts, malicious prosecution, defamation, negligent infliction of emotional distress, and unintentional infliction of emotional distress. The plaintiff's prayer for relief in each of these counts is for equitable and punitive damages as appropriate, as well as declaratory relief.
General Statutes § 46b-40(b) provides that " [a]n annulment shall be granted if the marriage is void or voidable under the laws of this state or of the state in which the marriage was performed." Additionally, General Statutes § 46b-40(c) provides in relevant part that " [a] decree of dissolution of a marriage or a decree of legal separation shall be granted upon a finding that one of the following causes has occurred . . . (4) fraudulent contract . . ."
Although addressed within the context of a separate and distinct legal issue, the Connecticut Supreme Court has noted the unique differences between a dissolution action and much of the plaintiff's present civil action. " A tort action, the purpose of which is to redress a legal wrong by an award of damages, is not based on the same underlying claim as an action for dissolution, the purpose of which is to sever the marital relationship, to fix the rights of the parties with respect to alimony and child support, and to divide the marital estate. Although in a dissolution action, the trial court must consider the conduct of the parties, the judgment in a dissolution action does not provide direct compensation as such to a party for injuries suffered during the marriage. Alimony is intended to provide economic support for a dependent spouse, and the division of marital property is intended to recognize and equitably recompense the contributions of the parties to the marital partnership. Tort actions and dissolution actions lack the duplication that the doctrine of res judicata was aimed at preventing." Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 592-93, 674 A.2d 1290 (1996); see also Loughlin v. Loughlin, 280 Conn. 632, 641, 910 A.2d 963 (2006) (dissolution action is equitable in nature); Lodge v. Arett Sales Corp., 246 Conn. 563, 579, 717 A.2d 215 (1998) (noting that purposes of tort compensation is compensation to victim and " prophylactic" factor of preventing future harm); Gaudio v. Gaudio, 23 Conn.App. 287, 291, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990) (" [A] dissolution judgment is unique in that it establishes the status and obligations of the parties to a marriage . . .").
Considering these differences between the two causes of action, the court finds that certain counts of the plaintiff's civil action against the defendant are insufficiently similar to warrant application of the prior pending action doctrine. Specifically, the court finds that counts nine (malicious prosecution), ten (slander), eleven (libel), twelve (intentional infliction of emotional distress), and thirteen (unintentional infliction of emotional distress) are insufficiently similar to warrant application of the prior pending action doctrine. Although the parties to the plaintiff's civil action are the same as those in the prior dissolution action, the civil action contains factual allegations that overlap with the facts highlighted by the dissolution action, and both actions are within the same jurisdiction, the aforementioned counts do not seek to adjudicate the same underlying rights as are at issue in the dissolution action that is currently on appeal.
Counts nine, ten, and eleven touch upon the plaintiff's reputation and his right to be free from unjustifiable litigation, which are matters not specifically adjudicated in the dissolution action. See, e.g., Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004) (" A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him"); Karwowski v. Fardy, 118 Conn.App. 480, 486, 984 A.2d 776 (2009) (" The interest in freedom from unjustifiable litigation is protected by actions for malicious prosecution and abuse of process"). Moreover, these counts require proof of elements that are not at issue in a dissolution action. See, e.g., Bhatia v. Debek, 287 Conn. 397, 404-05, 948 A.2d 1009 (2008) (elements for malicious prosecution are: (i) defendant initiated institution of criminal proceedings against plaintiff; (ii) criminal proceedings terminated in favor of plaintiff; (iii) defendant acted without probable cause; and (iv) defendant acted with malice, primarily for purpose other than bringing offender to justice); Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 848-50, 863 A.2d 735 (2005) (elements for libel and slander).
Counts twelve and thirteen seek to adjudicate, inter alia, the plaintiff's alleged right to maintain a relationship with certain individuals and his peace of mind, which ultimately require the court to determine separate and distinct issues. See, e.g., Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978) (interest protected by the law in negligent infliction of emotional distress claim is " one's peace of mind"); see also Gillians v. Vivanco-Small, 128 Conn.App. 207, 211, 15 A.3d 1200 (2011) (elements of intentional infliction of emotional distress are: (i) actor intended to inflict emotional distress or knew or should have known that emotional distress was likely result of his conduct; (ii) defendant's conduct was extreme and outrageous; (iii) defendant's conduct caused plaintiff's distress; and (iv) emotional distress sustained by plaintiff was severe); Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005) (to prove negligent infliction of emotional distress, " the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm").
The prior pending action doctrine does not apply when the purpose of the two actions and the issues to be determined are different. Nielsen v. Nielsen, supra, 3 Conn.App. 682 (" When . . . the purposes of the two actions and the issues to be determined by them are different, the rule does not apply"); see also Bayer v. Showmotion, Inc., supra, 292 Conn 397-98 (doctrine does not apply when cases are " insufficiently similar"). Additionally, courts addressing similar circumstances to those presently before the court have denied a defendant's motion to dismiss based on the prior pending action doctrine. See, e.g., Goodman v. Janati, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-10-5013423-S, (February 24, 2011, Jennings, Jr., J.T.R.) (denying defendant's motion to dismiss where plaintiff brought, inter alia, tort claims for aiding and abetting and intentional and negligent infliction of emotional distress while parties' divorce case was allegedly pending).
The rights being adjudicated in a dissolution action are those attendant to end the marriage, General Statutes § 46b-40; the ownership of and distribution of property among the parties; General Statutes § 46b-81, and entitlement to alimony orders. General Statutes § 46b-82. Although that matter is currently on appeal, the rights at issue remain the same. Certain counts in the plaintiff's civil action, on the other hand, principally seek to redress alleged legal wrongs, by the award of damages, to various interests that were not at issue in the dissolution action. Because counts nine, ten, eleven, twelve, and thirteen do not seek to adjudicate the same underlying rights as the dissolution action, the prior pending action doctrine does not apply to these counts. Accordingly, the court denies the defendant's motion to dismiss as it applies to these counts.
2
Civil Action Counts that are Virtually Alike to Those Contained in the Dissolution Action
As previously noted, " [t]he applicability of the prior pending action doctrine does not turn on whether the two actions seek the same remedy . . . but . . . whether they are brought to adjudicate the same underlying rights." (Citation omitted; internal quotation marks omitted.) Bayer v. Showmotion, Inc., supra, 292 Conn. 399; Kleinman v. Chapnick, supra, 140 Conn.App. 506. If a court determines that the two actions are virtually alike based upon its examination of the pleadings, it may then exercise its discretion in determining whether the circumstances justify dismissing the second action. Bayer v. Showmotion, Inc., supra, 397-98; Lodmell v. LaFrance, supra, 154 Conn.App. 334.
A close examination of the pleadings from the dissolution action that is currently on appeal and the pleadings from the present civil action reveals that, in both actions, the plaintiff effectively requests that the court restore him to a pre-marriage position. In the dissolution action, the plaintiff's cross complaint sought an annulment, pursuant to § 46b-40(b), based on alleged fraudulent representations made by the defendant at the time of marriage and fraud " by [the defendant] being given my income purportedly for our 'marriage and future' while acting to procure her own home and savings, and declining full-time work [and] income." In counts one and two of the civil action, the plaintiff alleges, respectively, fraud and fraudulent nondisclosure based on (i) the defendant's failure to inform him of her prior childhood abuse and (ii) the defendant's verbal assurances that a prenuptial agreement was not needed because she would not seek the plaintiff's property, savings, or assets should the marriage fail.
The court notes that the plaintiff's preliminary statement of the issues for the dissolution action that is currently on appeal questions whether the court erred " in fail[ing] to consider relevant and material evidence" and " in fail[ing] to grant a Motion for Mistrial (173)." The court properly took judicial notice of this preliminary statement of the issues. See footnotes two and five of this memorandum of decision. Considering these issues, the court finds that the dissolution court's denial of the plaintiff's cross complaint seeking an annulment is still pending for purposes of the prior pending action doctrine. See Emerick v. Emerick, Superior Court, judicial district of Hartford, Docket No. FA-14-4073480-S, (June 25, 2015, Ficeto, J.) (denying and dismissing cross complaint seeking annulment). Should the Appellate Court agree with the plaintiff on either of these grounds, the trial court on remand would potentially need to address the plaintiff's cross complaint seeking annulment.
Although the potential remedies sought by the plaintiff in both actions are not dispositive for purposes of the present motion to dismiss, the court nonetheless finds them to be informative of the specific rights that are at issue in both actions. In particular, a party seeking to annul a marriage is seeking an adjudication of the validity and status of a marriage. See Mazzei v. Cantales, 142 Conn. 173, 178, 112 A.2d 205 (1955) (" Divorce and annulment differ fundamentally. The former is based upon a valid marriage and a cause for terminating it which arises subsequently . . . The latter proceeds upon the theory that the marriage is void ab initio"); Durham v. Miceli, 15 Conn.App. 96, 96, 543 A.2d 286 (1988) (annulment renders marriage void ab initio). Ultimately, the underlying right at issue is whether the parties to the challenged marriage should be restored to a position as though the marriage itself was a nullity from inception.
Additionally, an action to annul a marriage may have a direct impact on the financial rights of the parties. See, e.g., Perlstein v. Perlstein, 26 Conn.Supp. 257, 258, 217 A.2d 481 (1966) (" A direct action to annul a marriage not only affects the status of the marriage itself but may also affect property rights arising from this status").
Similarly, " the purpose of . . . [a tort action] is to redress a legal wrong by an award of damages . . ." (Emphasis added.) Delahunty v. Massachusetts Mutual Life Ins. Co., supra, 236 Conn. 592; see also Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 248, 905 A.2d 1165 (2006) (purpose of compensatory damages is to restore injured party to position he or she would have been in if wrong had not been committed); Lodge v. Arett Sales Corp., supra, 246 Conn 579 (purposes of tort compensation is compensation to victim and " prophylactic" factor of preventing future harm), 4 Restatement (Second), Torts § 901, comment (a), p.452 (1979) (" [T]he law of torts attempts primarily to put an injured person in a position as nearly as possible equivalent to his position prior to the tort"). Thus, as it pertains to the plaintiff's civil action, the court is mindful that the underlying rights at issue in the plaintiff's tort claims are intimately interwoven with the potential remedy: the award of damages. Ultimately, counts one and two of the plaintiff's civil action seek an adjudication of (i) the plaintiff's right to be restored to a position that he would have been in had the alleged fraud and fraudulent nondisclosure not occurred, and (ii) the plaintiff's right to be free of such tortious conduct. Counts one and two of the civil action both allege that the defendant's fraud and fraudulent nondisclosure were designed to induce the plaintiff into marriage. As alleged in counts one and two of the civil action, the court finds that the plaintiff seeks to adjudicate his right to be placed in a pre-marriage position to the extent possible by tort compensation.
Although the remedies are distinct, the underlying right at issue in both actions is to restore the plaintiff to a position that predates his marriage to the defendant either by annulling the marriage or through tort compensation. Accordingly, under these particular circumstances, the court finds that counts one (fraud and fraudulent nondisclosure), and two (fraud) of the civil action are virtually alike to the dissolution action.
Additionally, both actions were brought to adjudicate the financial rights of the parties. As previously noted, the defendant's complaint for the dissolution action sought, inter alia, an equitable distribution of the parties' property. The plaintiff's current civil action against the defendant alleges that the defendant's possession and control of the plaintiff's net income after he owed a $150,000 line of credit, due to stock market losses in day trading, forms the basis of counts three (fraud), four (breach of fiduciary duty), five (unjust enrichment), six (quantum meruit), and seven (violation of a constructive trust). The plaintiff alleges that the defendant's assurances that she would use his income for the benefit of the marriage was a calculated ploy designed to obtain his wealth for her own financial gain.
Although the plaintiff may be seeking a different remedy in this civil action, the underlying right at issue in these counts is ultimately the ownership and possession of certain financial assets. The financial rights of the parties were addressed by the court, Ficeto, J., in the dissolution action and the court imposed orders addressing the division of those assets after considering the evidence provided by the parties. See Emerick v. Emerick, Superior Court, judicial district of Hartford, Docket No. FA-14-4073480-S, (June 25, 2015, Ficeto, J.). The dispositive inquiry is whether the same underlying rights are being litigated by the two actions, not whether a different remedy is sought. Kleinman v. Chapnick, supra, 140 Conn.App. 506; Gaudio v. Gaudio, supra, 23 Conn.App. 296. Because the allegations contained in counts three, four, five, six, and seven of the civil action would necessarily require an adjudication of the same underlying rights that are at issue in the dissolution action that is currently on appeal, the court finds that these counts are virtually alike to the dissolution action. See also General Statutes § 46b-2 (proceedings involving family relations matter shall be placed on family relations docket first). Indeed, courts addressing similar factual circumstances to those presently before the court have dismissed causes of action pursuant to the prior pending action doctrine. See, e.g., Brennan v. Brennan, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-10-6004941-S, (August 30, 2010, Adams, J.) (dismissing plaintiff's civil claim while divorce action was pending in Superior Court when both actions sought judicial determination of total amount of assets possessed by defendant husband).
Upon its review of the preliminary statement of the issues for the dissolution action that is currently on appeal, the plaintiff specifically intends to address whether the court in the dissolution action erred in its " division of assets and alimony pursuant to C.G.S. 46b-81 and 82" and in its " failure to consider relevant and material evidence."
Finally, the court finds that count eight (violation of express or implied verbal contract) of the plaintiff's amended complaint is virtually alike to the dissolution action that is currently on appeal. In that count, the plaintiff appears to allege a violation of two verbal contracts based on the defendant's (i) alleged failure to maintain the marriage, and (ii) alleged failure to use the plaintiff's income for the benefit of the marriage. Much like his tort-based claims in counts one and two of the amended complaint, the underlying right at issue in the plaintiff's contract-based claim is intimately interwoven with a potential remedy. See, e.g., Colby v. Burnham, 31 Conn.App. 707, 721, 627 A.2d 457 (1993) (" '[C]ontract damages are ordinarily based on the injured party's expectation interest and are intended to give him the benefit of the bargain by awarding a sum of money that will, to the extent possible, put him in as good a position as he would have been in had the contract been performed.' 22 Am.Jur.2d 68, Damages § 45 [1988]"); see also Keefe v. Norwalk Cove Marina, Inc., 57 Conn.App. 601, 610, 749 A.2d 1219, 254 Conn. 903, 755 A.2d 881 (2000) (noting same purpose of contract damages), 3 Restatement (Second) Contracts § 344, comment (a), p. 103 (1981) (" Ordinarily, when a court concludes that there has been a breach of contract, it enforces the broken promise by protecting the expectation that the injured party had when he made the contract. It does this by attempting to put him in as good a position as he would have been in had the contract been performed, that is, had there been no breach").
The court limits its analysis of count eight to whether the plaintiff seeks to adjudicate the same underlying rights that are at issue in the dissolution action that is currently on appeal. Thus, for purposes of addressing this motion to dismiss, it expresses no opinion as to whether count eight is a cognizable claim.
As alleged in the civil action, the plaintiff seeks to adjudicate his right to have the benefit of the bargain for each respective contract. Specifically, he seeks to enforce the defendant's promise to maintain the marriage and her promise to use his net income for the benefit of the marriage. In a dissolution action, the rights being adjudicated include those attendant to end a marriage; General Statutes § 46b-40; and the ownership of and distribution of property among the parties. General Statutes § 46b-81. Here, because both actions require the court to adjudicate the right to remain in a marriage and the ownership and possession of the parties' financial assets, the court finds that count eight is virtually alike to the dissolution action.
For the foregoing reasons, the court finds that counts one, two, three, four, five, six, seven, and eight are virtually alike to the dissolution action that is currently on appeal Although the prior pending action doctrine is not one of " unbending rigor"; Bayer v. Showmotion, Inc., supra, 292 Conn. 397, quoting Hatch v. Spofford, 22 Conn. 485, 494 (1853); the present circumstances warrant a dismissal of these counts. Accordingly, the court grants the defendant's amended motion to dismiss as to counts one, two, three, four, five, six, seven, and eight.
CONCLUSION
The court is mindful that its decision ultimately permits a " disgruntled marital litigant to continue to fight the marital battles on the [civil] battleground . . ." Delahunty v. Massachusetts Mutual Life Ins. Co., supra, 236 Conn. 598. Nonetheless, at this current juncture involving a motion to dismiss, the prior pending action doctrine does not apply when the underlying rights at issue in the two actions are different. For the forgoing reasons, the court denies the defendant's amended motion to dismiss as to counts nine, ten, eleven, twelve, and thirteen; however, the court grants the motion as to counts one, two, three, four, five, six, seven, and eight.