Opinion
No. FA 07 4012382
February 27, 2008
Memorandum of Decision re Motion to Dismiss (#103)
Before the court is a motion to dismiss this action, a petition for new trial, under the prior pending action doctrine. It also seeks to dismiss the action for inadequate pleading. For the reasons stated herein, the motion is denied. However, in light of the procedural posture of the issues presented and the pendency of another action, the court, sua sponte, issues a stay as elucidated below.
"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). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a 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.) Id. 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). Further, "a motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
This claim arises out of a dissolution of marriage action between the plaintiff and the defendant. On or about November 16, 2005, Sara Marshall filed the first action against Stephen Marshall. After trial, the court filed a memorandum of decision granting a dissolution of marriage and other relief on May 30, 2007. Stephen Marshall filed a motion to reopen, reargue and for articulation on June 18, 2007, which was initially scheduled for a hearing on July 26, 2007. It has not yet been heard and is currently re-scheduled for hearing on March 11, 2008.
The first action was entitled Marshall v. Marshall, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 05 4007455 (May 30, 2007, Tierney, J.).
The following allegations are taken as true for the purpose of this motion. On or about July 26, 2007, counsel for Stephen Marshall discovered in the dissolution court file, Sara Marshall's fax filed copy of her second request for the production of documents at trial. It is dated October 11, 2006, and was received by the court on October 12, 2006. Attached to the request was a letter, marked as trial exhibit number one, which the court had ruled inadmissible on October 18, 2006. Stephen Marshall moved for a new trial on August 16, 2007.
Practice Book Section 17-4A states in relevant part: "Motions for new trials in cases tried to the court, unless brought by petition served on the adverse party or parties, must be filed with the clerk within ten days after the day the judgment is rendered; provided that for good cause the judicial authority may extend this time." Because the judgment was rendered May 30, 2007, the motion for a new trial on August 16, 2007, was not timely.
On or about August 29, 2007, Stephen Marshall filed this petition for a new trial. Mr. Marshall claims that the filing of the production request with the letter (ruled inadmissible at trial) constitutes a mispleading which was prejudicial and harmful to his interests. In response, the defendant filed a motion to dismiss the petition and a memorandum in support on November 16, 2007. On December 3, 2007, the plaintiff filed a statement in opposition to the motion to dismiss. The matter was heard on the short calendar on December 17, 2007.
Stephen Marshall, who was the defendant in the first action, will hereinafter be referred to as "the plaintiff" and Sara Marshall, who was the plaintiff in the first action, will hereinafter be referred to as "the defendant."
I.
In support of her motion to dismiss, the defendant argues that the remedy of a new trial is unavailable as the first action is still pending due to the motion to reopen, reargue, and for articulation, which has not yet been decided. The defendant, further, argues that a new trial is not warranted because the allegation of "mispleading" does not apply in this case, as a misfiled exhibit does not qualify as a pleading.
The plaintiff responds with the procedural argument that the defendant's motion to dismiss is in fact a motion to strike because it challenges the sufficiency of the pleading. As such, her claim as to the prior pending action doctrine is waived, because once a motion to strike has been filed, all jurisdictional challenges that do not involve subject matter jurisdiction are waived. The plaintiff further argues that the prior pending action doctrine does not apply, as there is a final judgment from the prior divorce proceeding. The fact that the motion to reopen, reargue and for articulation has been filed, does not make the prior final judgment non-appealable. Finally, the plaintiff argues that the complaint is legally sufficient, stating that, because the motion to dismiss is in fact a motion to strike, the legal standard of sufficiency of the pleading is met.
II. CT Page 3063
"The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases." General Statutes § 52-270(a).
"A petition for a new trial is a civil action and the rules of civil procedure are in effect. [General Statutes § 52-270] confers civil jurisdiction in the [S]uperior [C]ourt over the subject matter of new trials." Harris v. State, Superior Court, judicial district of New Haven, Docket No. CV 92 0335511 (September 29, 1992, Maiocco, J.) (7 C.S.C.R. 1220) [7 Conn. L. Rptr. 818]. "A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action." (Citation omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1998).
"The primary test for determining whether a new trial should be granted is whether an injustice was done and whether it is probable that on a new trial a different result would be reached." Summerville v. Warden, 229 Conn. 397, 425-26, 641 A.2d 1356 (1994). "[T]he proceeding [for a new trial] is essentially equitable in nature; the petitioner has the burden of alleging and proving facts which would, in conformity with our settled equitable construction of the statutes, entitle him to a new trial on the grounds claimed; and the petition is addressed to the legal discretion of the trial court." (Internal quotation marks omitted.) State v. Grimes, 154 Conn. 314, 325, 228 A.2d 141 (1966); Bush v. Water Pollution Control, Superior Court, judicial district of New London, Docket No. 524498 (April 20, 1993, Teller, J.), aff'd 36 Conn.App. 925, 650 A.2d 180, cert. denied, 232 Conn. 904, 653 A.2d 191 (1995).
"Although related, the court's authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and [to] determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute." (Internal quotation marks omitted.) State v. Fowlkes, 283 Conn. 735, 746, 930 A.2d 644 (2007). "Furthermore, this court indulges every presumption in favor of jurisdiction." (Internal quotation marks omitted.) State v. Rogelstad, 13 Conn.App. 17, 35, 806 A.2d 1089 (2002).
In Kupiec v. Kupiec, Superior Court, judicial district of Windham, Docket No. FA 96 0054365 (December 30, 1996, Sferrazza, J.), the court denied a motion to dismiss a petition for a new trial, reasoning that "[i]t may be that the petitioner will be unable to sustain his burden of proving the absence of a reasonable opportunity to appear and defend or even survive a summary judgment motion on this issue, but that would not disempower the court to hear and decide the issue."
The court has subject matter jurisdiction over the present matter, because the petition for a new trial was properly filed in the present case. Whether or not there is mispleading should, therefore, be addressed in a motion to strike, as it does not implicate the court's jurisdiction, but rather the sufficiency of the pleading.
The Connecticut Supreme Court has stated that in certain situations "the trial court should have treated [a] motion to dismiss as a motion to strike." McCutcheon Burr, Inc. v. Berman, 218 Conn. 512, 527, 590 A.2d 438 (1991); Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 497. "[T]he court [further] has discretion to allow the filing of pleadings out of order." Sabino v. Ruffolo, 19 Conn.App. 402, 404, 562 A.2d 1134 (1989). Accordingly, "the trial court ha[s] discretion to overlook the simultaneous filing of the motion to dismiss and the motion to strike and to consider the motion to dismiss." Id., 405.
In the present case, although the issue whether there was mispleading is properly addressed by a motion to strike, the prior pending action claim is properly addressed by a motion to dismiss. The court has the authority in this case to treat the motion to dismiss as a motion to strike. The court, further, has the authority to consider the motions simultaneously, without breaching the Practice Book rules as to the required order of pleadings. Construing the complaint in favor of the plaintiff for the purpose of the motion to strike, the court may deny the motion to strike, if it considers the misfiling of the exhibit to be mispleading within the context of the statute.
Practice Book § 25-11 states: The order of pleadings shall be: (1) the plaintiff's complaint; (2) the defendant's motion to dismiss the complaint; (3) the defendant's motion to strike the complaint or claims for relief; (4) the defendant's answer, cross complaint and claims for relief; (5) the plaintiff's motion to strike the defendant's answer, cross complaint, or claims for relief; (6) the plaintiff's answer.
"A motion to strike properly addresses the legal sufficiency of a petition for a new trial." Blanchard v. Lubinski, supra, Superior Court, Docket No. 119719; Romero v. State, Superior Court, judicial district of Waterbury, Docket No. CV 01 0166783 (July 26, 2002, Wolven, J.). "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The court "take[s] the facts to be those alleged in the complaint . . . and . . . construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
In the instant case, the plaintiff here relies upon the statutory ground of mispleading. "In order to secure relief [for mispleading] the plaintiffs would have to prove not only that there was mispleading but also that this came about though fraud, accident or mistake unconnected with any negligence or inattention upon their part." (Internal quotation marks omitted.) DiBlasi v. DiBlasi, 116 Conn. 699, 700, 163 A.2d 473 (1932); Bush v. Water Pollution Control, supra, Superior Court, Docket No. 524498. Black's Law Dictionary (7th Ed. 1999) defines mispleading as "pleading incorrectly." To plead is defined as "to assert or allege in a pleading," which is defined as "a formal document in which a party to a legal proceeding (especially a civil lawsuit) sets forth or responds to allegations, claims, denials, or defenses."
In the present case, the plaintiff discovered the defendant's exhibit, which the court had ruled inadmissible, after the judgment was rendered by the court when preparing for the hearing on the motion to reopen, reargue, and for articulation. According to the strict definitions in Black's Law Dictionary, it appears that the misfiled exhibit would only qualify as a pleading sufficient under the statute, if the court were to construe it in a way to fit the definition of a formal document in which the party "sets forth or responds to allegations, claims, denials, or defenses." Black's Law Dictionary (7th Ed. 1999). To support his claim of mispleading, the plaintiff lays out a chronology of the events leading up to the discovery of the document, indicating that the discovery was made as early as possible. The defendant does not allege in her motion to dismiss that the plaintiff was negligent or inattentive in not discovering the misfiled exhibit at an earlier time.
Accordingly, the plaintiff has properly pled a mispleading basis for a new trial. The only question left for the court, then, is whether the document filed constitutes a mispleading. The court must conclude that it does not. A review of the practice book confirms that the document filed by Sara Marshall does not constitute a pleading; accordingly, its improper filing-in and of itself-is not a mispleading. The court notes that the statutory basis for a new trial is not necessarily narrow. It includes, "or for other reasonable cause, according to the usual rules in such cases." General Statutes § 52-270(a). It is left for another day to determine whether the document filed satisfies this or any other statutory criteria. The motion to dismiss, construed as a motion to strike is granted.
III.
"The prior pending action doctrine permits the court to dismiss a second action that alleges claims already pending before the court." Hunting v. Chambers, 99 Conn.App. 664, 667, 916 A.2d 56, cert. denied, 283 Conn. 901, 926 A.2d 669 (2007). "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); Hunting v. Chambers, supra, 667. "[O]nly if the plaintiff can achieve its desired objective through the first lawsuit [however] does the second lawsuit become redundant, and, therefore, oppressive and vexatious. Accordingly, the defendant must establish that the plaintiff can achieve its desired objective through the first complaint in order to prevail on its motion to dismiss." (Internal quotation marks omitted.) Ying Shun Corp. v. Cruz, Superior Court, judicial district of New Haven, Docket No. SPNH 9503 42439 (April 27, 1995, Levine, J.).
"A court applying the prior pending action doctrine must examine the pleadings to ascertain whether the actions are virtually alike . . . and whether they are brought to adjudicate the same underlying rights." (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 230 n. 22, 828 A.2d 64 (2003). If "the present case and the prior pending action both (1) arise from the same factual background, (2) include the same parties and (3) seek the same goals or objectives," the motion to dismiss based on the prior pending action doctrine may properly be granted. 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); Anastasio v. St. Raphael Healthcare System, Inc., Superior Court, judicial district of New Haven, Docket No. CV 04 0489151 (July 6, 2005, Lopez, J.); Duprey v. Izzo, Superior Court, judicial district of Tolland, Docket No. CV 02 0078548 (September 17, 2002, Scholl, J.).
Here, the plaintiff seeks a new trial because he claims that the court was inappropriately influenced by a document mispled by his ex-wife in the court file which was before the trial throughout his hearing and decision on the case. The trial judge did not admit the offending document into evidence at the trial. Therefore, he would not have seen the document but for its presence in the file by the misfiling of it. The relief of a new trial if granted would be a re-trial of the matter now still pending before the court (Tierney, J.).
"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). "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.) Briggs v. Briggs, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 026460 (May 8, 2007, Hickey, J.T.R.). "The rule forbidding the second action is not, however, one of unbending rigor, nor of universal application, nor a principle of absolute law." (Internal quotation marks omitted.) Beaudoin v. Town Oil Co., supra, 584. In fact, "[t]he trial court has broad discretion in applying the prior pending action doctrine." (Internal quotation marks omitted.) Briggs v. Briggs, supra, Superior Court, Docket No. CV 07 026460.
"[A] final judgment is a condition precedent to the proper filing of a petition for a new trial." LaBow v. LaBow, 69 Conn.App. 760, 761, 769 A.2d 592 (2002). Although, outside of the context of the prior pending action doctrine "[i]t is well established that the opening of a prior judgment is not a final appealable judgment when a substitute judgment is contemplated but has not yet been rendered"; Pritchard v. Prichard, 281 Conn. 262, 271, 914 A.2d 1025 (2007); "once an action has gone to judgment and until it is properly set aside, it is not a "pending" action as that term is used in the prior pending action doctrine, even if the judgment is "pending" on appeal." Fine Homebuilders, Inc. v. Perrone, Superior Court, judicial district of Fairfield, Docket No. 06 5004641 (May 8, 2007, Matasavage, J.) (43 Conn. L. Rptr.), citing Salem Park, Inc. v. Salem, 149 Conn. 141, 142, 176 A.2d 571 (1961). See also Fine Homebuilders, Inc. v. Perrone, supra, Superior Court, Docket No. CV 06 5004641 (denying motion to dismiss, because once action gone to judgment, until properly set aside, no "pending" action); Gallo v. Barile, Superior Court, judicial district of New Britain, Docket No. CV 05 4005598 (November 22, 2005, Burke, J.) (denying motion to dismiss, because pending appeal not "pending" action); Grant v. M.H. Chodos Ins., Superior Court, judicial district of New Haven, Docket No. CV 98 0414395 (November 13, 1998, Silbert, J.) [23 Conn. L. Rptr. 241] (denying motion to dismiss, because while motion to dismiss pending, summary judgment obtained and appeal filed in prior action, so action no longer "pending").
"In Gardner v. Falvey, 45 Conn.App. 699, 697 A.2d 711 (1997), the trial court rendered a final judgment, and a proper appeal was taken. Thereafter, a motion to reargue was filed with the trial court, and the court granted the motion, but the reargument had not actually taken place at the time the appeal was heard by the Appellate Court. The Appellate Court dismissed the appeal, holding that because there was no disposition of the reargument, the controversy was not ripe for the court's review, and there was no final judgment . . . [The court] view[s] the present case as analogous to Gardner and, accordingly, dismiss[es] the plaintiff's appeal due to the lack of a final judgment." (Citation omitted.) Lambert v. Donahue, 69 Conn.App. 146, 149, 794 A.2d 547 (2002) (the plaintiff filed a timely appeal and as of the date of oral argument of the plaintiff's appeal, the evidentiary hearing the plaintiff requested had not been held).
In the present case, the case has gone to judgment on the merits. What remains is a pending motion to reopen, reargue and for articulation of the divorce judgment of the case Marshall v. Marshall, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 05 4007455 (May 30, 2007, Tierney, J.). The motion is still pending; the judgment has not yet been reopened. It appears, therefore, that, absent a ruling on the motion, there is still a valid judgment, and, consequently, no prior pending action. Further, the mere existence of a prior pending action does not obligate the court to dismiss the action. Accordingly, while the court finds that the motion to reopen, reargue and for articulation renders the matter "pending" for the purpose of the prior pending action doctrine, the court declines to deny the dismissal of the plaintiff's petition for a new trial.
IV.
Because "a petition for a new trial . . . is not an independent proceeding but one ancillary to the original action"; Alling, Attorney-General v. Levitt, 112 Conn. 586, 591, 153 A. 166 (1931), the court has determined that it will consider the stay of the proceedings, sua sponte.
"The court has the inherent power to stay proceedings before it in the interest of the just resolution of controversies." Hilb Rogal Hobbs Co. v. Siech, Superior Court, judicial district of Hartford, Docket No. CV 04 4004817 n. 5 (Mar. 23, 2005) (38 Conn. L. Rptr.). "An order staying proceedings does not terminate the action but merely postpones its disposition. It may be modified or vacated by the court whenever, in the exercise of a sound discretion, it is considered necessary or proper to do so." Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 771, 613 A.2d 1320 (1992); quoting Gores v. Rosenthal, 148 Conn. 218, 220, 169 A.2d 639 (1961).
"A stay leaves the court in a position to monitor the progress in the parallel litigation, and to reassert its jurisdiction over the parties' dispute if the interests of justice so dictate or require. It is abundantly clear that allowing parallel actions to proceed will require needless additional expenditures of time and resources of the litigants, counsel and the courts, will not further or promote judicial economy[,] and, may tend to encourage forum shopping and condone procedural gamesmanship at the expense of the interest of justice." (Internal quotation marks omitted.) Parizo v. State, Superior Court, judicial district of Hartford, Docket No. CV 03 0828527 (January 3, 2005, Shapiro, J.).
Trial courts have stayed actions sua sponte, even in the absence of a pending appeal. See Connecticut Ins. Guaranty Ass'n. v. Harbec, Superior Court, judicial district of New London, Docket No. 529690 (June 3, 1997, Handy, J.) (in light of overlapping issues, the court, sua sponte, stayed the proceedings, pending the outcome of a related appeal); see also Lombardo v. Strasser, Superior Court, judicial district of Tolland, Docket No. FA 93 0052378 (July 27, 1996, Lifshitz, J.) (the court determined that the ultimate result in another matter could have significant implications for the current matter and, sua sponte, ordered a stay on further proceedings until a final result was reached in the other matter); Lowe v. Lowe, Superior Court, judicial district of Danbury, Docket No. FA 94 0066876 (June 14, 1996, Axelrod, J.) (the court, sua sponte, entered an order, temporarily staying all further proceedings in Connecticut, in so far as a new hearing to determine financial orders, pending a determination by the New Hampshire court as to whether it had continuing jurisdiction to enter new financial orders).
In the present case, no appeal of the previous action, but rather a motion to reopen, reargue and for articulation is pending. Upon the resolution of that motion, an appeal may yet be pursued. The outcome of those proceedings may have a significant impact on the pending petition for new trial. All avenues for relief have not yet been exhausted for this plaintiff.
As ruled above, the complaint is stricken. The court orders a stay of these proceedings. Upon a lifting of the stay the plaintiff shall have 30 days to amend his pleadings (as is his right after the granting of a motion to strike). The stay shall be lifted upon the resolution of the pending motion to reopen, reargue and for articulation and all appeal periods have expired or appeals finally concluded.