Opinion
No. CV 07 5013040
March 19, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS #103
FACTS
This case centers around several actions filed in 2006 and 2007. In March 2006, Frank Sorrentino, LLC (LLC) filed an eight-count complaint against MLPI, LLC (MLPI). The LLC alleged the following facts. After entering into a written commercial lease with MLPI, it opened a restaurant on the leased property. On July 28, 2005, a fire caused substantial damage to the property, resulting in the restaurant's closure. On August 2, 2005, MLPI informed the LLC that the LLC was responsible for making repairs because, in MLPI's opinion, the LLC caused the damage. On November 11, 2005, MLPI entered the property without the LLC's consent and changed the locks, thereby preventing the LLC from accessing its personal effects and equipment. According to the LLC, MLPI's actions constitute forcible entry and detainer, conversion, statutory theft, breach of the lease agreement, intentional interference with the LLC's business relationships, negligent interference with the LLC's business relationships, breach of the implied covenant of good faith and fair dealing and violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.
On April 28, 2006, MLPI filed an answer, as well as special defenses and a three-count counterclaim. Only the third count is relevant to the issues currently before the court. In that count, MLPI alleged that the July 28, 2005 fire was the result of the LLC's negligence, in that the LLC brought equipment into the premises and installed it without due regard for fire hazards, it allowed combustible material to accumulate near the equipment despite knowing of the fire hazards, it left the equipment and materials unattended and it failed to shut off the equipment when it was not in use. MLPI further alleged that it suffered damages including loss of fair rental value, the cost of repairing the fire damage and the cost of replacing items allegedly discarded by the LLC.
On August 6, 2007, MLPI filed a one-count complaint against Frank Sorrentino alleging negligence in connection with the July 28, 2005 fire. As it did in its counterclaim against the LLC, MLPI attributed the fire to failure to attend to fire hazards and to shut down equipment when not in use. The counterclaim and complaint differ, however, in that the sole defendant in MLPI's counterclaim is the LLC, whereas the sole defendant in MLPI's 2007 complaint is Sorrentino.
On November 7, 2007, Sorrentino filed a motion to dismiss MLPI's August 6, 2007 complaint based on the prior pending action doctrine, as well as a supporting memorandum of law. MLPI filed a memorandum of law in opposition to the motion on January 16, 2008, and Sorrentino filed a reply memorandum two days later. Oral argument was heard on January 22, 2008.
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 v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). "Although 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." Gaudio v. Gaudio, 23 Conn.App. 287, 294, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990).
"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 forbidding the second action is not, however, one of unbending rigor, nor of universal application, nor a principle of absolute law . . ." (Citations omitted; internal quotation marks omitted.) Halpern v. Board of Education, 196 Conn. 647, 652-53, 495 A.2d 264 (1985). Indeed, "[t]he 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.) Seracino v. The Hartford Financial Services Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV 06 5004767 (February 5, 2007, Wiese, J.). Accordingly, "[t]he trial court has broad discretion in applying the prior pending action doctrine." (Internal quotation marks omitted.) Id.
Sorrentino contends that MLPI's one-count complaint against him alleging negligence is virtually identical to MLPI's negligence counterclaim against the LLC, and that the prior pending action doctrine applies when a plaintiff brings an action against a corporate entity and then a separate action against its officers. MLPI counters that the motion to dismiss must be denied because the complaint and counterclaim do not involve the same parties. It argues that Sorrentino is never referenced individually in MLPI's counterclaim, the mere fact that the LLC bears the name "Frank Sorrentino, LLC" does not confer unity of identity upon the parties, and no case cited by Sorrentino holds that the distinction between an LLC and an individual is superficial for purposes of the prior pending action doctrine.
The court agrees with MLPI that dismissal would be improper under these circumstances. The two suits are not "virtually alike" because they are not between the same parties. "[Parties] are not fungible, even if they are represented by the same attorney and have similar interests." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermen's Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003). The fact that Sorrentino is a member of the LLC does not make his identity interchangeable with the LLC's.
Sorrentino's reliance on appellate cases for the contrary position is misplaced, as those cases are readily distinguishable. In Gaudio v. Gaudio supra, 23 Conn.App. 296, the court noted that in one suit, the plaintiff sued Gaudio, an individual; in another suit, the plaintiff sued a corporation, but "the allegations against [the corporation were] actually made against Gaudio, acting for the corporation." In this case, the allegations in MLPI's counterclaim are not against Sorrentino, acting for the LLC; indeed, Sorrentino is never mentioned in that suit. Moreover, the Gaudio court determined that the plaintiff's latter suit should not have been dismissed based on the prior pending action doctrine. Id., 297.
In Pecan v. Madigan, 97 Conn.App. 617, 618-19, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007), the plaintiff sued a town housing authority for negligence, and then sued the housing authority's executive director and head of maintenance for negligence while the first suit was pending. The Appellate Court determined that pursuant to General Statutes § 8-41a, the housing authority would be liable for its employees' negligent conduct within the scope of their employment. Id., 622 n. 4. Accordingly, there was functional identity between the parties and the prior pending doctrine applied to the negligence counts. Id. General Statutes § 8-41a, which governs housing authorities, has no application here.
Additionally, in Northern Homes Distributors, Inc. v. Grosch, 22 Conn.App. 93, 94-95, 575 A.2d 711, cert. granted in part, 216 Conn. 810, 580 A.2d 58 (1990) (appeal withdrawn September 27, 1991), Elaine Grosch filed an action against Donald Ghent; when Ghent and others instituted an action against Grosch, Grosch filed a counterclaim against both Ghent and Northern Homes Distributors, Inc. that was nearly identical to her initial action. Assessing the Superior Court's grant of Ghent's motion to dismiss the counterclaim, the Appellate Court said the following: "In comparing the defendant's counterclaim in this case to her original complaint, we conclude that the trial court correctly determined that they were `virtually alike.' In both actions, Grosch seeks to have the same claims adjudicated, and ultimately seeks to hold Donald Ghent liable. Her contention that the parties in her counterclaim are different from those in the original complaint does not survive scrutiny. While it is true that her counterclaim includes counts against Northern Homes Distributors, Inc., and her complaint did not, she has also added a count to her counter-claim asserting that Donald Ghent is liable as the `alter ego' of Northern Homes Distributors, Inc. Hence, although on its face, her counterclaim may appear to be against two parties, the defendant's ultimate goal in both actions is to hold Donald Ghent liable on these claims." (Emphasis removed.) Id., 96-97. The court thus determined that dismissal based on the prior pending action doctrine was proper. Id., 97. In this case, MLPI has not alleged that Sorrentino is the "alter ego" of the LLC.
Other cases cited by Sorrentino are similarly distinguishable from the facts at hand. See, e.g., Sandvig v. Debreuil Sons, Inc., 53 Conn.App. 466, 730 A.2d 646, cert. denied, 250 Conn. 920, 738 A.2d 659 (1999) (multiple actions at issue involved identical parties); Ackerman v. Sobol, Superior Court, judicial district of Hartford, Docket No. CV 05 4013285 (May 11, 2006, Hennessey, J.T.R.) (same); Duprey v. Izzo, Superior Court, judicial district of Tolland, Docket No. CV 02 0078548 (September 17, 2002, Scholl, J.) (same). In Chiang v. Pyro Chemical, Inc., Superior Court, judicial district of Stamford, Docket No. CV 96 0151317 (June 5, 1997, Karazin, J.), the court treated a corporation and its insurer as a single party for purposes of its prior pending action doctrine analysis; here, Sorrentino and the LLC do not have an insurer/insured relationship. Seracino v. The Hartford Financial Services Group, Inc., supra, Superior Court, Docket No. CV 06 5004767, is also inapposite. In that case, the plaintiff first sued two corporations. While that suit was pending, it filed an action against both corporations and an agent of one of the corporations, namely, the plaintiff's former supervisor. In finding that the corporation and its agent should be treated as the same party for purposes of analysis under the prior pending action doctrine, the court relied in part on General Statutes § 33-1117(a), which involves indemnification of directors by corporations and is not relied on by either of the current parties. Id., n. 2. Moreover, the court noted the plaintiff had generally referenced the agent in its initial action; by contrast, MLPI never mentioned Sorrentino either generally or specifically in its initial action. Id.
Unlike the preceding cases, Evans v. Province, Docket No. CV 07 6000855 (July 3, 2007, Skolnick, J.) is directly on point and favors MLPI. In Evans, Field Company Builders, LLC filed a complaint against Gordon Evans and Peggy Lee Evans, who in turned filed counterclaims against the LLC. While their counterclaim action was pending, the Evanses filed a five-count complaint, three counts of which were directed against Pamela Province, an agent of the LLC. The court stated: "Each count of the Evanses' counterclaim in the pending action is directed at Field Company, not at Donald Province and Pamela Province (the Provinces)." By contrast, the allegations in the Evanses' five-count complaint, although similar to the allegations in their counterclaim, were directed toward "the Provinces, in their individual capacities, rather than Field Company." Id. The court then denied the motion to dismiss, reasoning that "[b]ecause the defendant [Pamela Province] was not made a party to the pending [counterclaim] action, there is no identity of the parties and the prior pending action doctrine is inapplicable." Id.
Similarly, MLPI's initial suit was filed against an LLC, while its second suit was filed against an individual. Sorrentino was never made a party to MLPI's pending counterclaim action against the LLC. The court is persuaded that the logic employed in Evans has bearing here, and accordingly finds that the prior pending action doctrine does not apply under these circumstances.
MLPI also argues that application of the prior pending action doctrine would be inequitable because MLPI would have no remedy if its second action was dismissed and the LLC was later found to be insolvent. Sorrentino counters that the risk of being left without any remedy could have been avoided had MLPI either joined Sorrentino to its initial suit or filed its suit against Sorrentino earlier, and adds that the latter suit is unnecessary. In light of the court's finding that the prior pending action doctrine does not apply because the parties are not the same, the court need not address these arguments. Nevertheless, the court notes that while Sorrentino relies on Kolodney v. Kolodney, 2 Conn.App. 697, 483 A.2d 622 (1984) for the proposition that MLPI's suit against him is unnecessary, such reliance is misplaced. Not only is Kolodney's fact pattern entirely dissimilar to the matter currently before the court, but the Kolodney court acknowledged the rule that in order for a latter suit to be deemed unnecessary and vexatious, the prior suit must be "between the same parties"; id., 699; that is not the case here.
CONCLUSION
For the foregoing reasons, Sorrentino's motion to dismiss is denied.