Opinion
No. CV07-5001958 S
March 31, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS #103
On February 8, 2007, the plaintiff, Tuccio Custom Homes, LLC, filed a revised complaint against the defendant, Kathy Lamonica. In its complaint, the plaintiff alleges that the defendant entered and remained on property owned by the plaintiff in the company of Kevin Archer, a third party, in direct violation of an express provision of the written agreement between the defendant and the plaintiff for the sale of the plaintiff's property. Paragraph fourteen of the agreement states that "[p]rior to the closing of title, the Purchaser [the defendant] shall not have access to the subject premises unless accompanied by the Seller or its agent(s)." See Exhibit 1 of the plaintiff's revised complaint.
This case was consolidated with Tuccio Custom Homes, LLC v. Archer, Superior Court, judicial district of Danbury, Docket No. CV 07 5001957 on April 30, 2007.
On February 9, 2007, the defendant filed a motion to dismiss in response to the plaintiff's complaint. The defendant argues that, based on the underlying case entitled Tuccio Custom Homes, LLC v. Lamonica, Superior Court, judicial district of Danbury, Docket No. CV 06 5001082 (May 4, 2007, Frankel, J.), the prior pending action doctrine requires this action be dismissed. A verdict was rendered in that action on May 4, 2007. In its memorandum in opposition to the defendant's motion to dismiss, the plaintiff argues that the two actions are "completely different" and, therefore, the prior pending action doctrine does not apply.
"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). "Under the prior pending action doctrine, [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. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction . . . Moreover, allowing an action that raises claims that are substantially identical to claims raised in a prior action would undermine an orderly and efficient judicial process and would potentially lead to inconsistent verdicts." (Citation omitted; internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 409, 876 A.2d 522 (2005). "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).
"A motion to dismiss . . . has replaced the plea in abatement . . ." Concept Assoc., Ltd v. Board of Tax Review, 229 Conn. 618, 625, 642 A.2d 1186 (1994).
It is not necessary for this court to reach a conclusion on whether the actions are of the same character or whether they are brought to obtain the same end or objective because the previous suit is no longer "pending" within the meaning of the prior pending action doctrine. A verdict was rendered in the case captioned Tuccio Custom Homes, LLC v. Lamonica on May 4, 2007. "Various Superior Courts have refused to dismiss cases based upon the prior pending action doctrine when the prior action is not actually pending." (Internal quotation marks omitted.) Casper v. Green, Superior Court, judicial district of Waterbury, Docket No. CV 98 0144205 (November 20, 1998, Leheny, J.) "[T]he fact that there was at one time an action which is between the same parties, is the same character, and has been brought to achieve the same objective . . . does not abate the current action if that former action is terminated at any time prior to the hearing on a plea in abatement in the second action." Briggs v. Briggs, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 026460 (May 8, 2007, Hickey, J.). "Under our present rules of procedure, courts have refused to dismiss actions on the grounds of the prior pending action doctrine when the prior action was terminated or withdrawn before the hearing on the motion to dismiss." Casper v. Green, supra, Superior Court, Docket No. CV 98 0144205. Therefore, the prior pending action doctrine is not applicable to the present case and the defendant's motion to dismiss is denied.
See also Briggs v. Briggs, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 026460 (May 8, 2007, Hickey, J.T.R.); Trusler v. Anteon Corp., Superior Court, judicial district of New London, Docket No. 4001286 (June 27, 2005, Hurley, J.T.R.) [ 39 Conn. L. Rptr. 547]; Shamrock Ridge, LLC v. Blaisdell, Superior Court, judicial district of New London at Norwich, Docket No. 4100844 (February 1, 2005, Devine, J.); Creighton v. Baum, Superior Court, judicial district of Bridgeport, Docket No. CV 90 0277470 (March 14, 1997, Skolnik, J.); Hughes v. Budny, Superior Court, judicial district of Litchfield, Docket No. CV 96 0070449 (November 18, 1996, Pickett, J.); Norfield Corp. v. Lunn Industries, Superior Court, judicial district of Danbury, Docket No. CV 321900 (December 14, 1995, Moraghan, J.); Knudsen v. Buettner, Superior Court, judicial district of Danbury, Docket No. 320708 (November 2, 1995, Stodolink, J.); Kennedy v. Adams, Superior Court, judicial district of Waterbury, Docket No. 121167 (May 18, 1995, Dranginis, J.); New England Road, Inc. v. Neri Construction Co., Superior Court, judicial district of Middlesex, Docket No. 098573 (May 16, 1995, Walsh, J.); Ying Shan Corp. v. Cruz, Superior Court, judicial district of New Haven, Docket No. SPNH 9503-42439 (April 27, 1995, Levine, J.); Wintonbury Assoc. v. KBM, Corp., Superior Court, judicial district of Hartford, Docket No. SPH9502-79772 (March 3, 1995, DiPentima, J.); Parsons v. The Connecticut Light Power Co., Superior Court, judicial district of Litchfield, Docket No. CV 940066077 (January 25, 1995, Pickett, J.); Tedford v. 1718 Boston Post Road Ltd., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 91 036383 (January 14, 1993, Curran, J.); Blythe v. Rupf, 6 Conn.Sup. 195 (1938); Gauchi v. Round Hill Dairy, Inc., 3 Conn.Sup. 14 (1935).