Opinion
No. CV 08 5101577
October 7, 2008
MEMORANDUM OF DECISION MOTION TO DISMISS
This matter arises out of a long-standing boundary dispute between neighbors. The plaintiff, Edward Socha, filed a three-count complaint to reestablish lost boundary pursuant to General Statutes § 47-34 against the defendants, the estate of Ray and other unknown parties, on February 8, 2008. Pursuant to court order, service of process was accomplished by publication. On March 14, 2008, the defendant, Scott Bordeau, filed an appearance as a defendant and a motion to dismiss the plaintiff's complaint. In his memorandum of law in support of the motion, Bordeau argues, inter alia, that the matter should be dismissed because of the existence of a prior pending action previously filed by the plaintiff and presently pending before the Supreme Court (S.C. No. 18040).
In his complaint, the plaintiff alleges, inter alia, that he is the owner of real property and its improvements located on the shores of and under the waters of Gardner Lake identified as 329 Witter Road in Salem; that the deeds by which the property was transferred to the plaintiff list various metes and bounds of the plaintiff's boundaries on the dry ground and along a now submerged shoreline but one course is missing from the deed descriptions; that the surveyor Michael Tarbell found the missing course; that no record has been found of an owner or owners of the property adjacent to the missing course now claimed under the waters of Gardner Lake; and that the land to the south of the boundary claimed by the plaintiff, was formerly owned by the estate of Ray in the early 1800s but no record of any transfer of ownership since that time has been found in any relevant land records. The plaintiff requests the appointment of a committee of three disinterested parties to review his claim as provided by General Statutes § 47-34.
The following procedural history is relevant to the resolution of the present matter. In 1999, the plaintiff brought an action against Bordeau, claiming ownership of a certain portion of property located along the parties' shared
property line. The parties agreed to submit the matter to arbitration. "Following the submission of the issues for arbitration, the arbitrator determined that the defendant owned the wedge-shaped parcel of property at issue and that the defendant's southern property line ran along the edge of the shoreline. The parties incorporated the arbitrator's finding into a boundary line agreement, which they both signed and, in November 2000, submitted to the trial court in the form of a stipulated judgment. As part of the agreement, the plaintiff quitclaimed to the defendant all right, title and interest to the premises westerly and southwesterly of the agreed upon boundary line, and the defendant quitclaimed to the plaintiff all right, title and interest to the premises easterly and northeasterly of the agreed upon boundary line." Socha v. Bordeau, 277 Conn. 579, 582, 893 A.2d 422 (2006) (providing procedural history).
The parties entered into a written agreement to submit two issues to binding arbitration, namely: (1) "the actual location of the boundary between the plaintiff's and defendant's properties at their respective [east/west] boundary in the vicinity of the swamp adjacent to Gardner Lake"; and (2) "the total extent of frontage on Gardner Lake owned by the defendant." See Socha v. Bordeau, 277 Conn. 579, 582, 893 A.2d 422 (2006) (providing procedural history). The parties further stipulated that `the claims of both parties shall be resolved completely and definitively' by the arbitration. Id.
In May 2001, the plaintiff brought a trespass action against Bordeau, alleging that the plaintiff owned certain subaqueous land abutting the wedge-shaped parcel of property located at the defendant's southern property line; and that Bordeau had installed and maintained a dock on that subaqueous land. See Socha v. Bordeau, supra, 277 Conn. 583. The plaintiff sought, inter alia, a permanent injunction prohibiting the defendant's use of that subaqueous land. Id. "The plaintiff filed a motion for summary judgment, alleging that there was no genuine issue of material fact with respect to his claim because the arbitration decision and the parties' boundary line agreement definitively established that the plaintiff owned the subaqueous land in question." Id. The court, Hurley, J., granted the plaintiff's motion for summary judgment finding that the plaintiff owns the subaqueous land abutting the wedge-shaped portion of Bordeau's property and that the defendant's use of that land for the purpose of installing and maintaining a dock constituted a trespass. Socha v. Bordeau, Superior Court, judicial district of New London at Norwich, Docket No. CV 01 0122572 (February 9, 2004, Hurley, J.) [ 36 Conn. L. Rptr. 437]. Bordeau appealed the trial court's decision. On appeal, the Supreme Court reversed the trial court's decision and remanded the case with direction to deny the plaintiff's motion for summary judgment. Socha v. Bordeau, supra, 277 Conn. 593. On remand, after a full trial to the court, Leuba, J., denied the plaintiff's request for permanent injunction and ruled in favor of Bordeau finding that "the plaintiff has not sustained his burden of proof either with respect to his alleged title to the subaqueous land in question or with respect to the possession of it." Socha v. Bordeau, Superior Court, judicial district of New London at Norwich, Docket No. CV 01 0122572 (September 13, 2007, Leuba, J.). The court concluded that "[n]one of the evidence offered to locate the missing course in the plaintiff's deed provides the court with sufficient certainty to satisfy the plaintiff's burden or to permit the court to provide the missing course." Id. The plaintiff appealed the trial court's decision, which appeal is presently pending before the Supreme Court (S.C. No. 18040).
The Supreme Court found that a genuine issue of material fact existed with respect to the plaintiff's ownership of the subaqueous land on which Bordeau's dock rested. Socha v. Bordeau, supra, 277 Conn. 593.
On February 8, 2008, the plaintiff filed a complaint to reestablish a missing course pursuant to General Statutes § 47-34.
In the present case, Bordeau moves to dismiss the plaintiff's complaint on the ground that a prior action is presently pending. He argues that, in both actions, the plaintiff seeks to obtain the same end; that the issues raised are substantially identical; and that the parties to the two actions are effectively the same. The plaintiff counters that the cases are different because the sole matter before the court in the present action is a determination as to the location of a subaqueous boundary running under the waters of Gardner Lake. He argues that the prior decision of the trial court, Leuba, J., established that the course was missing and that the only way to reestablish the missing course is to file an equitable action pursuant to General Statutes § 47-34. The plaintiff asserts that there is no substantial commonality between the cases because the nature of the relief sought is different as the pending appeal is of a tort action seeking to evict a trespasser and not an equitable action to reestablish a lost boundary. In addition, the plaintiff argues that the motion to dismiss should be denied because the pending appeal is not a prior pending action. Bordeau responds that, if the plaintiff is correct in asserting that the prior pending action does not apply due to the particular procedural posture of the prior action, the motion should be nonetheless granted based on the reasoning set forth in Chomko v. Patmon, 20 Conn.App. 159, 565 A.2d 250 (1989).
Bordeau also moves to dismiss the plaintiff's complaint on the ground that the service of process was insufficient. Specifically, Bordeau argues that, by way of a notice published in a local newspaper, the plaintiff has attempted to confer service on the named defendant and "other parties unknown," despite the fact that no such notice ever was ordered by the court, as required by General Statutes § 52-69. This claim was resolved during the short calendar hearing on the motion to dismiss on May 12, 2008. The court found that the notice by publication was accomplished pursuant to the court order, and accordingly, denied Bordeau's motion to dismiss on the ground of insufficiency of service of process.
The plaintiff also argues that Bordeau does not have standing to file a motion to dismiss because he is not an adjoining proprietor and does not have an interest in the matter as required by General Statutes § 47-34. The court resolved the issue of Bordeau's standing during the short calendar hearing on a motion to dismiss on May 12, 2008. The court found that Bordeau has sufficient interest in the subject matter of this action and, therefore, has standing to defend his interests.
"The prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court." Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998). "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." (Internal quotation marks omitted.) Saracino v. Hartford Financial Services Group, Inc., 50 Conn.Sup. 503, 506, 946 A.2d 954 [ 42 Conn. L. Rptr. 796] (2007), aff'd, 107 Conn.App. 410, 945 A.2d 527, cert. denied, 287 Conn. 925, 951 A.2d 572 (2008). "[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).
"The prior pending action doctrine provides: [t]he 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.) Saracino v. Hartford Financial Services Group, Inc., 107 Conn.App. 410, 411-12, 945 A.2d 527, cert. denied, 287 Conn. 925, 951 A.2d 572 (2008). "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 on the basis of the prior pending action doctrine may properly be granted." (Internal quotation marks omitted.) Saracino v. Hartford Financial Services Group, Inc., supra, 50 Conn.Sup. 507. "[W]hen a plaintiff interposes different legal theories from those asserted in a prior pending action, dismissal is appropriate when such theories are merely different ways to characterize how the defendant's actions resulted in liability to the plaintiff." (Internal quotation marks omitted.) Id., 509.
"[A] pending appeal is not a prior pending action within the meaning of the prior pending action doctrine . . ." Chomko v. Patmon, 20 Conn.App. 159, 161, 565 A.2d 250 (1989), see also Salem Park, Inc. v. Salem, 149 Conn. 141, 176 A.2d 571 (1961).
Here, the trial court's decision in a prior action was issued on September 13, 2007. Therefore, the prior action was no longer pending when the plaintiff filed his complaint to reestablish lost boundary on February 8, 2008, and the prior pending action doctrine does not apply.
Bordeau's reliance on the court's reasoning in Chomko v. Patmon, supra, 20 Conn.App. 159, is misplaced. In Chomko v. Patmon, supra, 20 Conn.App. 161, the Appellate Court dismissed the appeal finding that its decision in a prior action rendered the appeal moot and there was no practical relief that could legally be afforded to the plaintiff. This reasoning does not apply to this case.
Even though the prior action involved a claim of ownership to the same subaqueous land subject of this case, the two actions are not virtually alike. In the prior action, the plaintiff sought damages and a permanent injunction to stop an alleged trespass by Bordeau. The plaintiff failed in that quest because he was unable to establish ownership or possession of the land in question. In the present case, the plaintiff seeks to reestablish a lost boundary. "Under the provisions of General Statutes § 47-34, when the boundaries of lands between adjoining proprietors have been lost or become uncertain and the parties cannot agree to establish the boundaries, one or more of them may bring a complaint and the court may appoint a committee of not more than three disinterested property owners. The function of the committee is to inquire into the facts, and to erect and establish the lost and uncertain bounds, and to report the facts and their doings to the court. The mission of the committee is to erect and establish from the evidence boundary lines which have become lost or have disappeared. The committee does not deal with title . . . Its whole object is the restoration of lost boundaries . . . Proceedings in accordance with what is now General Statutes § 47-34 have no effect on questions of title." (Citations omitted; emphasis added.) Zuliani v. Chipperini, 12 Conn.App. 549, 553, 532 A.2d 1307 (1987). Assuming the committee finds the missing course and reestablishes a lost boundary in the plaintiff's favor which is confirmed by the court, the plaintiff will have to commence still another action to achieve the same end he sought in a prior action against Bordeau, i.e., to obtain a permanent injunction against Bordeau for an alleged trespass. Therefore, the goals or objectives in this case are not the same as in the prior action. Further, filing a complaint pursuant to General Statutes § 47-34, is the only way for the plaintiff to reestablish a missing course. Accordingly, the prior pending action doctrine would not bar the plaintiff's action under General Statutes § 47-34.
General Statutes § 47-34 provides: "When the boundaries of lands between adjoining proprietors have been lost or become uncertain and they cannot agree to establish the boundaries, one or more of them may bring a complaint to the superior court for the judicial district in which the lands or a portion of them are situated. The court may, upon the complaint, order the lost and uncertain bounds to be erected and established and may appoint a committee of not more than three disinterested property owners. The committee shall give notice to all parties interested in the lands to appear before it and, having been sworn, shall inquire into the facts and erect and establish the lost and uncertain bounds and may employ a surveyor to assist therein and shall report the facts and their doings to the court. If the court finds that the parties were duly notified, it may confirm such doings; and certified copies of the report and decree shall be recorded in the records of the town in which the lands are situated, and the bounds, so erected and established, shall be the bounds between the proprietors."
CONCLUSION
For the foregoing reasons, Bordeau's motion to dismiss the plaintiff's complaint is denied.