Opinion
No. CV 09 5010223
December 15, 2010
MEMORANDUM OF DECISION RE MOTION FOR FINDING OF MISJOINDER AND PLACEMENT ON TRIAL LIST #164
FACTS
On August 19, 2010, two of the defendants, Camilla Ross and Jack Ross, filed this motion for a finding of misjoinder and placement on the trial list. On August 25, 2010, the plaintiff, Edwin St. Germain, filed an objection to the motion. On October 8, 2010, the Rosses filed a reply to the plaintiff's objection and on October 12, 2010, the plaintiff filed a surreply.
The Rosses move the court for a finding that the claims asserted against them are misjoined with the claims asserted against the other defendants in this case. In addition to the Rosses, the plaintiff brought this action against nine other defendants: Ken Zuch, Gary Labrie, Scott Lichtman, Larry Lizzotte, Matthew Bergeron, Richard Barber, Patricia Startz, "John Doe" and "Jane Doe." Of the nine other defendants, only one, Zuch, has filed an appearance in the matter.
This case arises out of the purchase and rental of a property located at 276 Washington Street, Norwich, Connecticut. The plaintiff alleges that his company, Connecticut Homes, LLC, originally purchased the property and then, on the same day, sold the property to Camilla Ross with the understanding that she would hold the property in trust for the plaintiff and would transfer the property back to the plaintiff at his request. The plaintiff claims that Zuch, Lizzotte, Lichtman, Barber, Labrie and Bergeron were tenants at the property. Startz's involvement in the matter arises from her alleged involvement with obtaining a protective order, along with Labrie, Barber and Zuch, that prevented the plaintiff from returning to the premises.
At the commencement of this action, the plaintiff placed a lis pendens on the subject property. Shortly thereafter, the Rosses moved for an order that would prevent the plaintiff from taking any action to encumber any real property owned by them without the prior approval of the court. The motion was based upon the Rosses' contention that the plaintiff had filed numerous actions against them based on the same set of underlying facts and that each previous action had been dismissed or resolved on the merits against the plaintiff. The Rosses asserted that the plaintiff had previously recorded a notice of lis pendens on the property and that the present action and lis pendens are part of a continuing attempt to harass them through the legal system. The motion was heard by the court, Peck, J., but was never ruled upon.
On September 8, 2009, the plaintiff filed a revised amended complaint, which is the operative complaint in this matter. The complaint contains twenty-three counts, of which the first nineteen are brought against the Rosses. The remaining counts are brought against Zuch, Labrie, Lichtman, Lizzotte, Bergeron, Barber and Startz, or some combination of those defendants. There is no dispute that, with respect to the counts one through nineteen, the Rosses filed an answer, special defenses and counterclaims. Additionally, there is no dispute that the plaintiff filed a reply to the Rosses' special defenses and an answer and special defenses to the Rosses' counterclaims. Subsequently, the Rosses filed an amended answer and special defenses, as well as a reply to the plaintiff's special defenses to their counterclaim. The only other appearing defendant, Zuch, filed a motion to dismiss on March 4, 2009, but the motion has never been claimed or argued. Zuch also filed a motion for a protective order regarding a deposition on May 29, 2010, but those are the only actions taken in this case by any of the defendants other than the Rosses.
DISCUSSION
The Rosses argue that they have attempted to move this action expeditiously to trial but that the plaintiff and the other defendants have unnecessarily delayed the progress of this case. The Rosses argue that there are no common counts against them and the other defendants and that the plaintiff will not be harmed if the claims against the Rosses are separated for the purpose of trial. The Rosses assert that the delay in the present case is harming them because it affects the lis pendens that has been placed on the property.
The plaintiff argues that the exclusive remedy for misjoinder of parties is a motion to strike, which the Rosses are not entitled to because they have already filed an answer and special defenses. The plaintiff also argues that the claims against the Rosses are inextricably tied to the claims against the other defendants and, therefore, the claims are properly joined in the same action.
The Rosses respond that they are not attempting to defeat the action as to themselves but, rather, that they are attempting to separate the claims against them for the purposes of trial in order to achieve a speedy resolution of the claims against them. The plaintiff asserts that the other defendants are necessary and indispensable to this action and reiterates that the claims against the other defendants are inextricably tied to the claims against the Rosses. As such, the plaintiff argues that it would be unfair to grant the Rosses' motion because it would result in the plaintiff having to try this case twice on the same facts, which could lead to inconsistent results.
At the outset, the court must determine which Practice Book sections are applicable to this motion. The court begins with the relief requested by the Rosses. In their motion, the Rosses move the court to "make a finding that the claims asserted in this case against all other defendants . . . are misjoined with the claims against them, order the actions against those defendants split from this one, and place this claim on the trial list." The parties agree that "[t]he exclusive remedy for misjoinder of parties is by motion to strike." (Internal quotation marks omitted.) Hilton v. New Haven, 233 Conn. 701, 723 n. 23, 661 A.2d 973 (1995); see also Practice Book § 11-3. As such, the Rosses' motion cannot be granted with respect to their request to split the other defendants from this action. The remaining issues in this motion, however, require the court to consider the misjoinder of claims, not parties.
As the plaintiff notes in his objection, several causes of action may be joined in a complaint pursuant to Practice Book § 10-21. Section 10-21 allows a plaintiff to include multiple claims in a civil action if all of the claims belong to one of the classes enumerated in the section, affect all of the parties to the action, do not require different places of trial and are separately stated. That section also states, however, that "in any case in which several causes of action are joined in the same complaint . . . if it appears to the judicial authority that they cannot all be conveniently heard together, it may order a separate trial of any such cause of action or may direct that any one or more of them be deleted from the complaint . . ." Practice Book § 10-21; see also Practice Book § 15-2 ("The judicial authority may, upon motion, for good cause shown, order a separate trial between any parties.").
Few Connecticut courts have addressed the judicial authority's power to order separate trials pursuant to Practice Book § 10-21. In CT Page 1434 Bieler v. Continental Ins. Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0189454 (December 24, 2003, Tobin, J.) ( 36 Conn. L. Rptr. 248), the trial court granted the plaintiff's motion to consolidate two cases involving a motor vehicle accident. Subsequently, one of the defendants moved to sever the actions for trial pursuant to Practice Book § 10-21. Id., 249. The trial court denied the motion to sever based on the reasoning that "the defendant had not demonstrated to the court's satisfaction that good cause exists for the separate trial of these actions. The defendant has not brought to the court's attention any reason for reversing the order of Judge Mintz consolidating the cases for trial. Both actions involve the same event or occurrence, the same plaintiff and the same injuries. It is obvious that a consolidated trial will serve the interests of justice and of judicial economy." Id.
Conversely, in Fowler v. Connecticut Life Casualty Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 07 5010045 (August 19, 2008, Lager, J.) ( 46 Conn. L. Rptr. 206), a defendant moved to bifurcate some of the claims in a case where underinsured motorist claims were sought in addition to bad faith claims. The court granted the motion to bifurcate, finding that "[b]ifurcation is within the court's discretion. Both General Statutes § 52-97 and Practice Book § 10-21 provide that when several causes of action are joined in a single complaint `the court may order a separate trial of any such cause of action' when it appears `that they cannot all be heard conveniently together.' In addition to convenience, the avoidance of prejudice and judicial efficiency have been cited as reasons in favor of bifurcation. Barry v. Quality Steel Products, Inc., 263 Conn. 424, 448-49, 820 A.2d 258 (2003)." Fowler v. Connecticut Life Casualty Ins. Co., supra, 46 Conn. L. Rptr. 207.
In the present case, the court finds that good cause exists for a separate trial on counts one through nineteen of the complaint. It appears to the court, based on the procedural and factual history of this case, that the counts against the Rosses cannot conveniently be heard with the counts against the other defendants. Additionally, the interests of justice will be served by allowing the first nineteen counts to proceed, particularly in light of the lis pendens that is currently placed on the property. The lis pendens continues to encumber the real property at issue in this case; see Ghent v. Meadowhaven Condominium, Inc., 77 Conn.App. 276, 284, 823 A.2d 355 (2003); and further delay would continue to prejudice that interest.
CONCLUSION
Based on the foregoing, the Rosses' motion is granted in part and denied in part. The Rosses' motion is denied with respect to their request that the court "split" the causes of action against the other defendants into a separate action. The issue of improper joinder of parties may only be raised in a motion to strike.
The Rosses' motion is granted with respect to the issue of separation of the claims. The court orders that counts one through nineteen of the revised amended complaint be separated from counts twenty through twenty-three. Either the plaintiff or the Rosses may file a certificate of closed pleadings with respect to the first nineteen counts. Subsequently, counts one through nineteen may be placed on the trial list.