Stephanie Ayles v. William Krygier et al. (2010)

MEMORANDUM OF DECISION RE MOTIONS TO DISMISS # 101 AND # 105

The plaintiff, Stephanie Ayles, filed a thirteen-count complaint in the present action on July 30, 2009 alleging negligence, conversion, misappropriation of funds, theft and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. against William Krygier, Empire Property Management Corporation (Empire) and Seaview Condominium Association (Seaview).   Prior to the present action, on July 1, 2008, the plaintiff filed a seven-count complaint against several of the same defendants named in the present action.   The claims in both of these complaints arise from the same incident;  where water leaks in the ceiling of the plaintiff's condominium caused extensive water damage to the property of the plaintiff.   Furthermore, these two complaints both allege that the defendants caused the plaintiff's injuries by failing to adequately represent her interests throughout the insurance settlement process that was undertaken by the defendants following the occurrence of the water damage.   On August 31, 2009, the plaintiff filed a motion to consolidate the two actions on the ground that both matters (1) arise out of the same occurrence, (2) are related to damages incurred by the water leak and (3) are centered on the funds owed to the plaintiff as a result of the water leak.   The motion to consolidate was granted, over the objections of the defendants, on September 14, 2009.

Prior to the granting of the plaintiff's motion to consolidate, on August 13, 2009, Seaview filed a motion to dismiss the present action on the ground that it is barred by the prior pending action doctrine.   Seaview argues that, due to the existence of the prior suit instituted by the plaintiff, the court has no subject matter jurisdiction over Seaview in the present action.   On September 4, 2009, the defendant Empire filed a motion to dismiss the current action on the same ground.   Empire likewise argues that the existence of the prior suit instituted by the plaintiff against Empire in the first action precludes the action against Empire established in the present action.   Each of the defendants' motions are accompanied by a memorandum of law.   The plaintiff filed a memorandum of law in opposition to both of the motions to dismiss on October 23, 2009.

“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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008);  R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008).  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).  “[A] motion to dismiss is the proper vehicle to raise the issue of a prior pending action, [although] the doctrine does not truly implicate subject matter jurisdiction.”  (Internal quotation marks omitted.)  Bayer v. Showmotion, Inc., 292 Conn. 381, 403, 973 A.2d 1229 (2009).  “[T]he 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.”  (Internal quotation marks omitted.)  Id., 395.  “The plea in abatement ․ has ․ been replaced by the motion to dismiss.”  (Citation omitted.)  Halpern v. Board of Education, 196 Conn. 647, 652 n.4, 495 A.2d 264 (1985).

“When a [trial] court decides a ․ question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a 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.)  State v. Marsh & McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008).  “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the ․ issue ․” (Internal quotation marks omitted.)   Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

The defendants argue that a motion to dismiss should be granted in the present case because the prior pending action doctrine defeats subject matter jurisdiction over the defendants.¹  The plaintiff argues, in opposition, that the prior pending action doctrine does not apply in this case due to the granted motion to consolidate and, nonetheless, that the two consolidated actions fit into an exception carved out of the prior pending action doctrine.   Specifically, as noted in her memorandum in opposition to the defendants' motions to dismiss, the plaintiff argues that because she initiated the two separate actions in an effort to avoid any challenge to her lawsuit on statute of limitations grounds that the prior pending action doctrine is inapplicable in the present case.

While the defendants contend that the court's subject matter jurisdiction is implicated by the prior pending action doctrine, the jurisdiction of the court is not actually at issue in the present case.  “The policy behind the prior pending action doctrine is to prevent unnecessary litigation that places a burden on our state's already crowded court dockets.”  (Internal quotation marks omitted.)  Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988).   Nonetheless, the defendants have correctly recognized that if a prior pending action were to exist that barred the second action in this case, the motion to dismiss would be the proper method for raising such an issue.   Bayer v. Showmotion, Inc., supra, 292 Conn. 403.  “A court applying the prior pending action doctrine must 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).   Nevertheless, “the prior pending action doctrine is not applicable when application of the rule would deprive the plaintiff of any substantial right which the law gives him as incident to determination of the issues ․” (Internal quotation marks omitted.)   Mola v. Home Depot USA, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 98 0167635 (April 7, 2000, Karazin, J.) [27 Conn. L. Rptr. 60];  see Kolodney v. Kolodney, 2 Conn.App. 697, 699-700, 483 A.2d 264 (1985).

The court's holding in Mola is particularly relevant in that the procedural history in that case is virtually identical to that of the present case.   In Mola, the court specifically recognized that the consolidation of two actions, where appropriate, is a proper method of resolving a motion to dismiss on prior pending action grounds.  Mola v. Home Depot USA, Inc., supra, Superior Court, Docket No. CV 98 0167635.   So long as the two distinct actions were brought separately in order to resolve statue of limitations requirements, and the actions were otherwise properly consolidated, the court found that the prior pending action doctrine did not apply.  Id.

In the present case, the plaintiff argues that despite the admitted similarity between the two lawsuits, the two motions to dismiss have been rendered moot due to the fact that the plaintiff's motion to consolidate was granted soon after the defendants' motions to dismiss was filed.   The consolidation of the lawsuit the plaintiff argues, eliminates any concern of inefficiency and oppression that the prior pending action doctrine was intended to prevent.   Furthermore, even absent the consolidation, the plaintiff argues that she instituted the separate actions as a way of ensuring the survival of her claim on statute of limitations grounds.   This view, she argues, is in accordance with the Kolodney decision, whereby the initiation of separate actions is allowed, and the prior pending action doctrine does not apply, if the two actions are filed in order to ensure that she is not deprived of a “substantial right that the law has given [her] as incident to the determination of the issues.”  Kolodney v. Kolodney, supra, 2 Conn.App. 699-700.   Since the court in Mola specifically recognized that a consolidation of two actions obviates the need to dismiss the later action under the prior pending action doctrine, so long as the reasoning behind initiating the two separate actions is for the purpose of meeting the statute of limitations, the prior pending action doctrine does not apply in this case.

For the foregoing reasons, the defendants' motions to dismiss are denied.

Howard F. Zoarski

Judge Trial Referee

FOOTNOTES

FN1. The defendants also argue that their motion to dismiss should be granted as to the CUTPA claims on the ground that the plaintiff has failed to meet the pleading requirements of CUTPA.   This second argument has not been analyzed in this memorandum due to the fact that an insufficient pleading argument is improper in the context of a motion to dismiss and should instead be offered in a motion to strike.   See American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009)..  FN1. The defendants also argue that their motion to dismiss should be granted as to the CUTPA claims on the ground that the plaintiff has failed to meet the pleading requirements of CUTPA.   This second argument has not been analyzed in this memorandum due to the fact that an insufficient pleading argument is improper in the context of a motion to dismiss and should instead be offered in a motion to strike.   See American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

Zoarski, Howard F., J.T.R.