Opinion
No. CV 06-5004641 S
May 8, 2007
MEMORANDUM OF DECISION
This is a decision on a motion to dismiss filed by the defendants, Diane and Richard Perrone, dated November 9, 2006. Specifically, the defendants argue that the plaintiff, Fine Homebuilders, Inc., has brought a materially identical action against the defendants, which is currently pending appeal. As such, the defendants claim that because of the prior pending action rule, this matter should be dismissed.
The plaintiff, Fine Homebuilders, Inc., alleges the following facts in the complaint which it served on the defendants, Diane Perrone and Richard Perrone, on September 12, 2006. On September 15, 2000, the parties entered into a contract pursuant to which the plaintiff provided materials and services to renovate and repair the defendants' house. Despite the plaintiff's demand, the defendants breached the contract by failing to pay the plaintiff the full amount due thereunder. As a result of their breach of the contract, the defendants owe the plaintiff $139,349.54 plus interest, collection and court costs, and attorneys fees. In counts one and two, the plaintiff alleges a claim against the defendants for breach of contract and unjust enrichment, respectively.
According to the record and the documents that the parties submitted to the court, the plaintiff previously filed an action against the defendants, as well as 3 additional defendants, in 2004. See Fine Homebuilders, Inc. v. Perrone, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 4001362.
In the 2004 action, the plaintiff alleged the following two claims against the defendants, both of which were premised on the same contract that is at issue in the present action: a claim for breach of contract premised on the defendants' failure to pay it $139,349.54 due on the contract; and a claim to foreclose on a mechanic's lien it had placed on the defendants' house for the same amount. The trial court granted the defendants' motion to dismiss that action and rendered judgment dismissing it on the basis of insufficiency of service of process. See CT Page 6623 Fine Homebuilders, Inc. v. Perrone, supra, Docket No. CV 044001362 (June 24, 2005, Wilson, J.) ( 39 Conn. L. Rptr. 577).
The plaintiff appealed, and on December 26, 2006, the Appellate Court determined that the defendants had actually received process and therefore reversed the judgment of the trial court in the first action and remanded it back to the trial court. Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 861-62, 911 A.2d 1149 (2006). Subsequently, the defendants filed a petition for certification for appeal, which the Supreme Court granted on March 21, 2007. Fine Homebuilders, Inc. v. Perrone, 282 Conn. 901 (2007).
The Supreme Court stated, "The defendants' petition for certification for appeal from the Appellate Court, is granted, limited to the following issue: `Did the Appellate Court properly determine that a state marshal's service of process at a locked front gate of a gated single-family estate was sufficient service of process?'" Fine Homebuilders, Inc. v. Perrone, supra, 282 Conn. 901.
While the first action was pending before the Appellate Court, the plaintiff commenced the present action, and the defendants filed the motion to dismiss that is presently before the court based on the prior pending action rule. The plaintiff objects to the motion on the ground that the rule does not apply when the prior action is pending on appeal. The parties filed memoranda in support of their respective arguments, and the court heard the parties at short calendar on February 5, 2007.
Although the prior action is no longer pending on appeal before the Appellate Court, it is pending on appeal before the Supreme Court. Therefore, in deciding the defendants' motion to dismiss the court will consider the parties' arguments in light of the present status of the prior action.
I.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
"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). "[T]he prior pending action rule does not truly implicate the subject matter jurisdiction of the court." Halpern v. Board of Education, 196 Conn. 647, 652 n. 4, 495 A.2d 264 (1985). Nevertheless "[t]he motion to dismiss [is] the proper device by which to request that the trial court dismiss the second action." Id.
II.
The defendants move to dismiss this action on the ground that the plaintiff is seeking to adjudicate the same underlying matters that form the basis for its previous action, that this is wasteful of judicial resources and that the present action should be dismissed under the prior pending action doctrine.
The plaintiff does not dispute that it seeks to adjudicate the same matters in both actions or that both matters involve the same parties. Instead, it contends that the prior pending action rule does not apply when the prior action is pending on appeal. Further it contends that the rule should not apply pursuant to the principles of equity because dismissal of this action would substantially prejudice its rights.
The defendants reply that an action on appeal fails to qualify as a pending action for purposes of the prior pending action doctrine only when the doctrine of res judicata is available as an alternative defense to the second action. They maintain that res judicata is not available to them here because the prior action was not decided on the merits, but rather on the basis of insufficient service of process, thus they should not be precluded from using the prior pending action doctrine.
Under the prior pending action rule, "[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." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, supra, 247 Conn. 216.
Generally, in order to determine whether a second case should be dismissed under the prior pending action doctrine, a court must review the record and determine whether the actions "(1) arise from the same factual background, (2) include the same parties and (3) seek the same goals or objectives." Modzelewski v. William Raveis Real Estate, Inc., 65 Conn.App. 708, 714, 783 A.2d 1074, cert. denied, 258 Conn. 948, 788 A.2d 96(2001). In this case, however, the plaintiff concedes these points. Therefore the sole issue is whether the prior action is still a pending action while it is pending before an appellate court.
Two appellate court cases address this issue. The Supreme Court did so in Salem Park, Inc. v. Salem, 149 Conn. 141, 142, 176 A.2d 571 (1061). In Salem Park, Inc., the plaintiff instituted a second action one month after the trial court entered judgment in the first action. The plaintiff then filed a notice of its intent to appeal the first action. The defendants filed a motion to dismiss the second action on the ground that the first action was still pending in the trial court, even though it had gone to judgment in light of the defendants' appeal notice. The trial court rendered judgment dismissing the second action, and the plaintiff appealed. The Supreme Court set aside the dismissal, explaining that when the defendants filed their motion to dismiss, the prior action "was not a `pending' action in the proper use of the term. [The first action] had gone to judgment and the appropriate way to have raised that judgment as a defense was by an answer to the effect that the issues in [the first action] were res judicata." Id., 144. Furthermore, the court noted, "[t]he judgment in [the first action] continued in force so long as it was not set aside on appeal, writ of error or other proper proceeding . . . The fact that the judgment was appealed from makes no difference, because a party cannot litigate in a second action matters already concluded in a prior one. If the judgment appealed from is sustained, there is an end to the matter. If error is found and a new trial ordered, the party has his opportunity to retry the issues in the first action." (Citations omitted.) Id.
In Chomko v. Patmon, 20 Conn.App. 159, 161, 565 A.2d 250 (1989) the court, citing to Salem Park, Inc., stated in dicta that one party had correctly asserted that "a pending appeal is not a prior pending action within the meaning of the prior pending action doctrine . . ." The court decided the issue before it on other grounds.
The court's reference to the availability of res judicata as a defense in the second action does not indicate that that was the sole reason why the prior pending action defense could not be used when a case is pending on appeal. Indeed the court appeared to recognize that res judicata is not always available in that it noted that "a party cannot litigate in a second action matters already concluded in a prior one." Id. The central principle in the decision is that once an action has gone to judgment and until it is properly set aside, it is not a "pending" action as that term is used in the prior pending action doctrine, even if the judgment is "pending" on appeal.
Furthermore, the fact that the prior action has not been decided on its merits, but rather on procedural grounds, detracts from, rather than supports the defendants' claim that they should be permitted to use existence of the prior action as a defense to this one. It is further noted that the defendants did not cite to any appellate authority that supports their argument that the Supreme Court's broad statements in Salem Park, Inc. only apply if res judicata is available. Finally, the defendants do not cite to any authority that prohibits a plaintiff from filing a second action within the applicable limitations period after the plaintiff's first action is dismissed on procedural grounds. See Shamrock Ridge, LLC v. Blaisdell, Superior Court, judicial district of New London at Norwich, Docket No. CV 04 4100844 (February 1, 2005 Devine, J.) (prior pending action doctrine does not prohibit plaintiff from filing second action within limitations period after first action is dismissed for discovery abuse).
For the foregoing reasons, the defendant's motion to dismiss is denied.