Opinion
No. CV 02 0191824
September 1, 2004
MEMORANDUM OF DECISION
The defendants, Leslie Miklovich and Joseph Richichi, as executors of the estate of Hillard E. Bloom, deceased, have filed motion # 106 to dismiss this action based on the prior pending action doctrine. The plaintiffs are Robert Weiss and Steven J. Bloom, trustees of the Steven J. Bloom Revocable Trust. This action, which began on November 20, 2001, when the defendants were served with process, contains three counts and seeks money damages against Mark Lussier and Shari Lussier and relates to their occupancy of the second and third floors of rental premises located at 38 Cove Avenue in East Norwalk.
This present action originally involved a landlord-tenant dispute and was first brought in the Housing Court and was subsequently transferred to this court.
In the first count of the complaint, the plaintiffs allege that as trustees they are the owners of one half of 38 Cove Avenue and that the other half is owned as tenants in common with the estate of Hillard E. Bloom. The plaintiffs further allege that the Lussiers have not paid any rent for their occupancy of the subject premises and hence owe the plaintiffs approximately $91,000. In the second count, the plaintiffs claim that the Lussiers have been paying $600 a month only to the estate of Hillard E. Bloom, or its predecessor, as rent but that said sum is below fair market rent. In the third count, the plaintiffs allege that the Lussiers have been unjustly enriched by paying only $600 as monthly rental.
Thereafter, the plaintiffs joined Leslie Miklovich and Joseph Richichi, as executors of the estate of Hillard E. Bloom, as defendants and filed an amended complaint dated February 5, 2002, adding counts four and five. In the fourth count, the plaintiffs allege that Hillard E. Bloom, and later his estate, owned one half of the subject premises and had breached fiduciary duties owed to the plaintiffs as tenants in common of the subject premises by failing to pay them one half of the fair market rent of said premises. In the fifth count, the plaintiffs contend that Hillard E. Bloom was related to the Lussiers and that he and subsequently his decedent's estate breached fiduciary duties owned to the plaintiffs by failing to charge the Lussiers fair market rent for their occupancy of the subject premises.
The executors of the estate of Hillard E. Bloom, deceased, denied the material allegations of the complaint and also filed a special defense that the plaintiffs' claims were barred by the statue of limitations in General Statutes § 52-576 (relating to contracts). The plaintiffs subsequently withdrew their complaint against the Lussiers, leaving the estate of Hillard E. Bloom as the only defendant and hence the decedent's estate is referred to hereafter as the defendant.
On March 12, 2002, about four months after this present action began, these same plaintiffs brought a partition action against the executors of the decedent's estate, docket no. CV 02 0191495, seeking a partition of 38 Cove Avenue and 40 Cove Avenue, as well as an accounting for 38 Cove Avenue, and money damages for the unpaid rents allegedly due them for 38 Cove Avenue. The plaintiffs' motion to consolidate this present action with the subsequent partition action was granted by this court on May 17, 2004. The defendant also filed an amended answer on May 5, 2004, asserting a counterclaim. The defendant alleged in the counterclaim that the executors are owed money damages and an accounting on the basis that the plaintiffs obtained more benefits from 38 Cove Avenue than they were entitled to as one half owners of said premises.
The motion to dismiss by the defendant claims that this present action for money damages is between the same parties and seeks the same relief, money damages for failure to share the rents from the subject premises, as does the later partition action.
"The prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. 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 can not 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 . . . We 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.) Sandvig v. A. Dubreuil Sons, Inc., 68 Conn.App. 79, 87, 789 A.2d 1012, cert. granted on other grounds, 260 Conn. 931, 799 A.2d 296 (2002), appeal dismissed, 270 Conn. 90, 851 A.2d 290 (2004).
This present action, which was the "first action," is based on breach of fiduciary duty. The "second case" is essentially a partition action involving not only 38 Cove Avenue but also the adjacent premises at 40 Cove Avenue. It is true that the partition action seeks money damages for lost rent, which is also sought in the first action, but the second action seeks something that the first action does not, namely, a partition and an accounting. The prior pending action doctrine seeks to prevent a second action which duplicates a prior action. Here the defendant seeks to dismiss the first action because it states that the second action seeks the same relief, but it does not as indicated above.
Therefore, the motion to dismiss this present action based on the prior pending action doctrine is denied.
William B. Lewis, J.T.R.