Jamie Goodman v. Sholeh Janati (2011)

Memorandum of Decision on Motion to Dismiss (No. 109)

FACTS

On May 25, 2010, the plaintiff, Jamie Goodwin, filed a notice of application for prejudgment remedy, along with a proposed writ, summons and complaint, against the defendant, Sholeh Janati.   In the proposed complaint, the plaintiff alleges the following facts relevant to the disposition of the motion that is presently before the court.   The plaintiff was previously married to Keith Styrcula, who is a non-party to this action.   On November 9, 2004, the plaintiff and Styrcula entered into a separation agreement that was incorporated into their divorce decree.   Pursuant to the separation agreement, Styrcula was obligated to pay the plaintiff unallocated alimony and child support of 55 percent of the first $250,000 of his total income and 35 percent of his income between $250,001 and $550,000.   Approximately one year after the divorce, Styrcula left his position at JP Morgan Chase where he had earned $400,000 a year.   From 2005 until February 2009, Styrcula failed to pay alimony or child support in violation of the divorce decree.   Styrcula claims that he has earned no income from the second half of 2006 until the present time.   According to the complaint, these claims are false and Styrcula has in fact earned substantial sums of money that he has diverted to his girlfriend Sholeh Jamati, who is the defendant in the present case.

Specifically, in 2006, Styrcula formed a limited liability company known as Structured Funds Advisor that later changed its name to Wealth Notes Capital Management, LLC (Wealth Notes).   Styrcula is the chief executive officer of Wealth Notes, which trades on the New York Stock Exchange.   Moreover, Styrcula also is the chairman, founder and sole officer of Structured Products Association.   This company has no offices and is operated out of Styrcula's Westport home where he lives with the defendant.   Structured Products Association produces an annual conference on structured products where Styrcula and other experts present programming relevant to this field.   The Structured Products Association conference draws between 250 and 300 attendees with an average attendance fee of $1,775 to $1,975 per person.   Additionally, the conference has corporate sponsors that pay between $5,000 and $10,000 per event.   According to the complaint, Styrcula has testified that the total cost for holding this conference is about $50,000, whereas the conference nets about $500,000.   Nevertheless, Styrcula claims that Structured Products Association does not receive any income from the conference and that all the money collected belongs to the defendant.   Styrcula and the defendant have refused to provide any financial information regarding the Structured Products Association conferences that could demonstrate that the purpose of these conferences is to generate income for the defendant.

Accordingly, the complaint alleges that “Styrcula created a scheme to defraud the Plaintiff by diverting and hiding his earned income to the defendant in order to avoid paying his ex-wife (the Plaintiff) and their children alimony and child support under the Divorce Decree ․ The defendant was a knowing participant in Styrcula's scheme and was aware of the role that she played in diverting and concealing Styrcula's income.”   In order to effectuate this scheme, the plaintiff alleges that Styrcula placed money into the defendant's bank accounts, but that Styrcula has always had access to these funds.   Furthermore, the plaintiff alleges that because the defendant is also a mother and a divorcee, she knew or should have known that allowing Styrcula to channel his income through her would deprive the plaintiff and her children of needed financial support and cause emotional distress.   As a result of all of this conduct, the plaintiff alleges claims against the defendant for:  (1) aiding and abetting;  (2) constructive trust;  (3) intentional infliction of emotional distress and (4) negligent infliction of emotional distress.

On July 29, 2010, the defendant filed an amended motion to dismiss and a supporting memorandum of law.¹  The defendant moves to dismiss this case on the ground that there is a prior pending action.   On August 11, 2010, the plaintiff filed a memorandum of law in opposition to the defendant's motion.   The defendant filed a reply memorandum on October 22, 2010.   On October 25, 2010, the parties appeared before the court and argued this motion at short calendar.   At the short calendar hearing, the defendant brought to the court's attention to a recently decided Superior Court case, Brennan v. Brennan, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 10 600494 (August 30, 2010, Adams, J.), which the plaintiff claims is on point to the present matter.   The court allowed the parties to submit briefs on this case, which the plaintiff did on November 4, 2010, and the defendant did on November 12, 2010, respectively.

DISCUSSION

“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.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “When a ․ court decides a jurisdictional 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.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).  “Any claim that the pendency of a prior suit between the same parties, for the same thing, will abate a latter suit ․ formerly could be raised by a plea in abatement ․ The plea in abatement ․ has, however, since been replaced by the motion to dismiss ․ [Accordingly], [t]he prior pending action doctrine is properly raised via a motion to dismiss ․” (Citation omitted;  internal quotation marks omitted.)  Pecan v. Madigan, 97 Conn.App. 617, 621, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007).

The defendant moves to dismiss this action on the ground that the court lacks subject matter jurisdiction because there is a prior pending action.   In her memorandum of law, the defendant argues that the issues presented in this case are identical to those raised in the divorce action between the plaintiff and Styrcula.   The defendant contends that the aim of the plaintiff in both actions is the same, in that “she is attempting to attain the same object, namely, property of her ex-husband, that is part and parcel with the Divorce action.   In other words, plaintiff is attempting an end-run around the Divorce action.”   Although the defendant acknowledges that the parties in this action and the divorce case are not the same because Styrcula is not a party in the present case, the defendant argues that “[t]he plaintiff's claims in this case are derivative of the claims brought in the divorce case.”   In an attempt to look past the lack of strict identity of parties in the two actions, the defendant argues that “the same reasoning for the Connecticut Supreme Court's abandonment of the mutuality rule with respect to collateral estoppel should apply here as well.   The Connecticut Supreme Court has looked to principles of judicial economy to hold that the application of the doctrine of collateral estoppel should apply to private parties despite a lack of mutuality.”   In response, the plaintiff argues that the prior pending action doctrine has no relevance to this matter because the parties are not the same, the legal theories in the cases are different and there is no prior action that is pending because Styrcula's divorce action has gone to final judgment.   The plaintiff also notes that there would be no procedural vehicle for her to bring these claims against the defendant in the family division because there is no way to cite in a non-party to a divorce case to allege an aiding and abetting cause of action.

At the outset, it should be noted that the defendant is incorrect that the prior pending action doctrine implicates the subject matter jurisdiction of the court.  Halpern v. Board of Education, 196 Conn. 647, 652 n.4, 495 A.2d 264 (1985).   Nevertheless, the motion to dismiss is the correct procedural vehicle to raise the prior pending action doctrine.  Id. Accordingly, the court will address the merits of the defendant's motion.  “[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.   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.)  Bayer v. Showmotion, Inc., 292 Conn. 381, 395–96, 973 A.2d 1229 (2009).  “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 ․ The rule, however, is not one of unbending rigor, nor of universal application, nor a principle of absolute law ․ Accordingly, the existence of claims that are virtually alike does not, in every case, require dismissal of a complaint.”   (Citations omitted;  internal quotation marks omitted.)  Id., 396.

When analyzing whether the prior pending action doctrine applies, “the trial court must determine in the first instance whether the two actions are:  (1) exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction;  (2) virtually alike, i.e., brought to adjudicate the same underlying rights of the parties, but perhaps seeking different remedies;  or (3) insufficiently similar to warrant the doctrine's application.   In order to determine whether the actions are virtually alike, [the trial court] must examine the pleadings ․ to ascertain whether the actions are brought to adjudicate ‘the same underlying rights' of the parties.”  (Emphasis in original;  internal quotation marks omitted.)  Bayer v. Showmotion, Inc., supra, 292 Conn. 397.  “If the two actions are exactly alike or lacking in sufficient similarities, the trial court has no discretion.   In the former case, the court must dismiss the second action, and in the latter instance, the court must allow both cases to proceed unabated.   Where the actions are virtually, but not exactly alike, however, the trial court exercises discretion in determining whether the circumstances justify dismissal of the second action.”  Id., 398.  “The applicability of the prior pending action doctrine does not turn on whether the two actions seek the same remedy ․ but ․ whether they are brought to adjudicate the same underlying rights.”  (Citation omitted;  internal quotation marks omitted.)  Id., 399.

The defendant fully admits that the parties in the present matter are not the same as those in the divorce action.   In the divorce case, the plaintiff initiated an action against Styrcula, whereas in this case, the plaintiff has brought suit against the defendant, who is Styrcula's girlfriend.   When analyzing the prior pending action doctrine, Connecticut's appellate courts have not always required that the parties absolutely need to be the same.   The Appellate Court has both stated that the prior pending action doctrine does not apply “where there is not a strict identity of the parties;” Conti v. Murphy, 23 Conn.App. 174, 179, 579 A.2d 576 (1990);  and that “[s]uperficial differences in the parties are not enough to overcome dismissal under the prior pending action doctrine.”  Gaudio v. Gaudio, 23 Conn.App. 287, 296, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990).   For instance, in Northern Homes Distributors, Inc. v. Grosch, 22 Conn.App. 93, 575 A.2d 711 (1990), the Appellate Court determined that complete identity of parties was not needed in order to apply the prior pending action doctrine because the plaintiff had brought a claim against a party's “alter ego” and the “ultimate goal in both actions is to hold [the same individual] liable on these claims.”  (Emphasis in original.)  Id., 97.

Contrary to the defendant's assertions, the present matter is not analogous to Northern Homes Distributors, Inc. In that case, Grosch first instituted an action against Ghent for tort claims arising out of a real estate and construction contract.   Thereafter, Ghent and Northern Homes Distributors brought a case against Grosch for failure to pay on a promissory note.   Grosch then filed a counterclaim against Northern Home Distributors.   In her counterclaim complaint, Grosch also “add[ed] an additional count seeking to hold Donald Ghent liable on these counts as the alter ego or instrumentality of Northern Homes.”  Northern Homes Distributors, Inc. v. Grosch, supra, 95.   The allegations in Grosch's counterclaim were virtually identical to those in the action that she had originally brought against Ghent.   After the filing of a motion to dismiss her counterclaim, Grosch argued that the prior pending action doctrine did not apply because there was not complete identity of parties.   The Appellate Court, however, disagreed because Grosch alleged that Ghent was the alter ego of Northern Homes Distributors and the goal of both cases was to hold Ghent personally liable.   In contrast, in the present case, the plaintiff has not alleged that the defendant is the alter ego of Styrcula.   Although the plaintiff certainly alleges that Styrcula and the defendant acted together in a fraudulent scheme, the plaintiff does not contend that the defendant and Styrcula are functionally the same person or entity.   Rather, the plaintiff is seeking to hold the defendant liable for her actions in aiding and abetting Styrcula's alleged malfeasances and for the emotional distress that she has allegedly caused.   Consequently, there is not a sufficient identity of parties in the present case such that the prior pending action doctrine applies.   It is true that our Supreme Court has abandoned the requirement of mutuality of parties in applying the doctrine of collateral estoppel in Aetna Casualty & Surety Company v. Jones, 220 Conn. 285, 299–300 (1991)).   That decision was based on widespread abandonment of party mutuality in application of the collateral estoppel dosctrine in other states, in the federal common law, and in the American Law Institute's Restatement, Second, of Judgments.  Id. at 300–01.   Defendant has cited no such developments in the jurisprudence of the prior action pending doctrine.   Furthermore, the policy reasons behind the Jones decision are largely inapplicable to a prior pending action situation.   For instance, Jones cites the avoidance of inconsistent judgments involving a single party, and avoidance of repeated litigation of issues that have already been conclusively resolved by a court.   Id. at 303.   Neither of those undesirable results flows from having two simultaneous cases pending between the same parties.   One case or the other will go to judgment first and result in claim preclusion or issue preclusion applicable to the case still pending.   The Jones result therefore fails to carry over by precedent or policy to the prior pending action doctrine.   In the twenty years since Jones was decided both the Appellate Court and the Supreme Court have continued to state the requirement of party mutuality as part of “the only certain rule on the subject [of the prior pending action doctrine],” citing the seminal case of Hatch v. Spofford, 22 Conn. 485, 494–95 (1853).   See Bayer v. Showmotion, 292 Conn. 381, 397 (2009) and Sclimogla v. Phimvonsga, 119 Conn.App. 645, 650 (2010) The mutuality of parties requirement has been firmly ensconced in the Connecticut rule of the prior pending action doctrine for 158 years.   If that requirement is to be relaxed, it must come from an authority higher than this court.

Furthermore, the objectives of the present case and the divorce action are not the same.   When instituting a divorce case, a party is seeking to end a marriage, determine the composition of the marital estate in order to decide on an appropriate division of assets, and, if applicable, develop a custody plan for minor children.   See, e.g., General Statutes §§ 46b–81, 46b–82, 46b–56.   None of these matters are directly at issue in the present case.   Rather, the plaintiff has brought tort claims for aiding and abetting and intentional and negligent infliction of emotional distress.   The plaintiff is also seeking a constructive trust.  “[A]iding [and] abetting includes the following elements:  (1) the party whom the defendant aids must perform a wrongful act that causes an injury;  (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance [and] (3) the defendant must knowingly and substantially assist the principal violation ․” (Internal quotation marks omitted.)  Efthimiou v. Smith, 268 Conn. 499, 505, 846 A.2d 222 (2004).   Similarly, “[t]he elements of a constructive trust are the intent by a grantor to benefit a third person, the transfer of property to another who stands in a confidential relationship to the grantor with the intent that the transferee will transfer the property to the third person, and the unjust enrichment of the transferee if the transferee is allowed to keep the property.”  Gulack v. Gulack, 30 Conn.App. 305, 310, 620 A.2d 181 (1993).

“To prove intentional infliction of distress, the plaintiff must demonstrate (1) that the [defendant] intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result [from] his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe.”  (Internal quotation marks omitted.)  Hall v. Bergman, 296 Conn. 169, 182–83 n.9, 994 A.2d 666 (2010).   Negligent infliction of emotional distress requires a plaintiff to demonstrate “that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.”   (Internal quotation marks omitted.)  Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005).   There is no noticeable overlap in the elements of these causes of action and the issues decided in the divorce case between the plaintiff and Styrcula.   Consequently, the court finds that the present matter is insufficiently similar to the divorce case between the plaintiff and Styrcula to warrant the application of the prior pending action doctrine.

It should also be noted that it is not even clear whether the divorce case between the plaintiff and Styrcula is still pending.   In the complaint, the plaintiff alleges that “[o]n November 9, 2004, [the plaintiff] and Styrcula entered into a Separation Agreement that was incorporated into a divorce decree of the same date.”   An examination of the official court file in the divorce case reveals that a judgment of dissolution was granted by the court, Tierney, J., on that date.²  “Various Superior Courts have refused to dismiss cases based upon the prior pending action doctrine when the prior action is not actually pending ․ [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 the former action is terminated at any time prior to the hearing on a plea in abatement in the second action.”  (Citation omitted;  internal quotation marks omitted.)   Tuccio Custom Homes, LLC v. Lamonica, Superior Court, judicial district of Danbury, Docket No. CV 07 5001958 (March 31, 2008, Shaban, J.).

Although the defendant is correct that there have been a number of postjudgment motions filed in the divorce action, the defendant has not conclusively demonstrated that any of these motions have taken away from the finality of the divorce judgment.  “It is well established that [t]he court's judgment in an action for dissolution of a marriage is final and binding [on] the parties, where no appeal is taken therefrom, unless and to the extent that statutes, the common law or rules of [practice] permit the setting aside or modification of that judgment.”  (Internal quotation marks omitted.)  Mickey v. Mickey, 292 Conn. 597, 603–04, 974 A.2d 641 (2009).   As the defendant has attached no evidence demonstrating the precise legal status of the divorce case between the plaintiff and Styrcula, it is impossible for the court to tell whether it is still pending or if there has been a final judgment entered.   The defendant has not adequately demonstrated that there is a prior pending action.   See, e.g., Sanford v. Gorton, Superior Court, judicial district of Fairfield, Docket No. CV 09 4028647 (September 16, 2009, Bellis, J.) (stating, when ruling on a motion to dismiss based on the prior pending action, that once “the court entered judgment on the parties' divorce proceedings ․ the divorce action became finalized, and, therefore, it was no longer pending”).

Moreover, despite the defendant's claims to the contrary, Judge Adams' decision in Brennan v. Brennan, supra, Superior Court, Docket No. CV 10 600494, is inapposite to the present case.   In Brennan, the plaintiff wife brought a lawsuit in the civil division against her husband in order to determine precisely how many assets that he possessed.   At that time, there was a divorce action between that parties that was still pending.   As stated by Judge Adams, “[t]he purpose of the present case is that the plaintiff is seeking a judicial determination of the total amount of assets possessed by her husband.   This same issue will necessarily be examined by the judge overseeing the divorce action when he or she determines the composition of the marital estate and the appropriate division of property.”  Id. Consequently, in Brennan, Judge Adams determined that the plaintiff had brought a case in the civil division seeking a determination of the same issues that would be resolved in a pending divorce action between the same two parties.   None of these factors exist in the case that is currently before the court.

In her supplemental memorandum of law dated November 12, 2010, the defendant also makes an argument that the plaintiff lacks standing to bring this action.   Although this ground is not raised in the defendant's motion to dismiss, it should be addressed by the court because standing implicates subject matter jurisdiction;  St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003);  and “[a] subject matter jurisdictional defect may not be waived ․ [or jurisdiction] conferred by the parties, explicitly or implicitly ․ [T]he question of subject matter jurisdiction is a question of law ․ and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case.”  (Internal quotation marks omitted.)   Wheelabrator Lisbon, Inc. v. Dept. of Public Utility, 283 Conn. 672, 685, 931 A.2d 159 (2007).

“Standing is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy ․ When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue ․ Standing requires no more than a colorable claim of injury;  a [party] ordinarily establishes ․ standing by allegations of injury.   Similarly, standing exists to attempt to vindicate arguably protected interests.”  (Internal quotation marks omitted.)  May v. Coffey, 291 Conn. 106, 112, 967 A.2d 495 (2009).  “Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ․ The fundamental test for determining aggrievement encompasses a well-settled twofold determination:  first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] ․ Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  (Internal quotation marks omitted.)  Id.

The defendant also bases her argument regarding the plaintiff's lack of standing on Judge Adams' Brennan decision.   In Brennan, Judge Adams determined that the plaintiff lacked standing to seek a declaratory judgment as to her husband's ownership interest in various companies because the plaintiff was not an owner or member of those entities.   Judge Adams further ruled that the plaintiff could not bring a claim for an accounting or quiet title because the statutes governing those causes of action did not give the plaintiff the authority to bring such a claim.   The key rationale for the holding in Brennan was that the plaintiff had only alleged that she had an “equitable interest” in the subject properties stemming from the divorce action against her husband.   In her supplemental memorandum, the defendant contends that the plaintiff in the present case merely alleges a similar type of interest because she is “seeking access to the property of another” and “her sole claim to the property stems from the divorce statutes.”   In reality, the plaintiff in the present case is seeking civil damages for the torts of aiding and abetting a fraudulent scheme and intentional and negligent infliction of emotional distress.   The plaintiff alleges that she has been personally aggrieved by the defendant's actions in both a monetary sense and from suffering emotional distress.   Consequently, the plaintiff alleges that she has suffered a direct injury as a result of the actions of the defendant.   Accordingly, the court concludes that the plaintiff alleges a colorable claim of injury such that she has standing to maintain the present action.

ORDER

For all of the reasons stated above, the defendant's motion to dismiss is denied.

Alfred J. Jennings, Jr., J.T.R.

FOOTNOTES

FN1. The defendant had previously filed a motion to dismiss on June 28, 2010.   At that time, the defendant was acting pro se.   On July 20, 2010, the plaintiff filed a memorandum of law in opposition to this motion.   Counsel for the defendant subsequently filed an appearance on her behalf on July 13, 2010, and then filed the motion to dismiss that is presently before the court.   On the face of this amended motion to dismiss, the defendant notes the following:  “Defendant, while appearing pro se, filed her motion to dismiss ․ The motion as it stands is legally unclear ․ Counsel has now appeared and amends the pending Motion to comply with the Practice Book and other requirements of the Court.”   Counsel for both sides appeared at short calendar on October 25, 2010, and argued the issues raised in the amended motion to dismiss.   The plaintiff did not object to the amended motion to dismiss as being the operative motion before the court..  FN1. The defendant had previously filed a motion to dismiss on June 28, 2010.   At that time, the defendant was acting pro se.   On July 20, 2010, the plaintiff filed a memorandum of law in opposition to this motion.   Counsel for the defendant subsequently filed an appearance on her behalf on July 13, 2010, and then filed the motion to dismiss that is presently before the court.   On the face of this amended motion to dismiss, the defendant notes the following:  “Defendant, while appearing pro se, filed her motion to dismiss ․ The motion as it stands is legally unclear ․ Counsel has now appeared and amends the pending Motion to comply with the Practice Book and other requirements of the Court.”   Counsel for both sides appeared at short calendar on October 25, 2010, and argued the issues raised in the amended motion to dismiss.   The plaintiff did not object to the amended motion to dismiss as being the operative motion before the court.

FN2. When ruling on a motion to dismiss based on the prior pending action doctrine, “the trial court properly [may take] judicial notice of the contents of the prior pending file.”  Bayer v. Showmotion, Inc., supra, 292 Conn. 393 n.8..  FN2. When ruling on a motion to dismiss based on the prior pending action doctrine, “the trial court properly [may take] judicial notice of the contents of the prior pending file.”  Bayer v. Showmotion, Inc., supra, 292 Conn. 393 n.8.

Jennings, Alfred J., J.T.R.