Christina Morniere–Boros v. Thomas Leroy Secter et al. (2013)

RULINGS ON DEFENDANTS' MOTION TO DISMISS (# 106) AND PLAINTIFF'S MOTION TO CORRECT NAME OF DEFENDANT (# 111)

I

INTRODUCTION

On October 11, 2013, the defendants, Thomas Leroy Secter (“Secter”) and Tom Segar (“Seger”) filed a motion to dismiss the complaint filed by the plaintiff, Christina Morniere–Boros, based on the “prior pending action doctrine.”   On October 15, 2013, the plaintiff, who is self-represented, filed an objection to the motion to dismiss, along with a “motion to amend to correct the name of defendant.”   The plaintiff's motion seeks to “correct the name of the defendants from AKA Thomas Leroy Secter, Tadd Leroy Secter agent for Design Tech, LLC and Tom Seger to Design Tech, LLC c/o Tadd Leroy Secter, AKA Thomas Leroy Secter and Tom Seger.” ¹  On October 17, 2013, the defendants filed an objection to the plaintiff's motion to amend.

The defendants' motion to dismiss and the plaintiff's motion to amend came before the court and were heard on November 18, 2013.   The defendants' motion to dismiss is granted.   The plaintiff's motion to amend is denied as moot.

II

FACTS

On July 2, 2013, the plaintiff filed a five-count complaint against the defendants, Thomas Leroy Secter, Design Tech, LLC and “Tom Seger.”   Count one of the complaint alleges that the plaintiff co-owns properties at 22 Wheaton Road and 26 Wheaton Road in Washington Depot, Connecticut.   The plaintiff claims that, on January 3, 2009, her home at 22 Wheaton Road (“the property”) was destroyed by fire.   Thereafter, she claims, her co-owner husband signed a contract with the defendants to rebuild the house.   The plaintiff, herself, did not sign the contract and does not claim to have any agreement with the defendants.   The plaintiff asserts that she is dissatisfied with the construction work done by the defendants.   Besides apparent claims of breach of contract, the plaintiff claims that the defendants improperly placed a lien on the property.

III

PARTIES' ARGUMENTS

The defendants move to dismiss the plaintiff's complaint on the basis that there are two prior pending cases that bar this action.   The first case, Design Tech, LLC v. Moriniere, 146 Conn.App. 60, 76 A.3d 712 (2013) arose out of an arbitration between Design Tech, LLC and Jean Charles Morniere, the plaintiff's husband.   At oral argument, the defendants acknowledged that the foregoing case is now concluded and so does not support the motion to dismiss under the prior pending action doctrine.

Despite this concession, the defendants argue that the existence of the second case, Meadowbrook Gardens, LLC v. Morniere, Superior Court, judicial district of Litchfield, Docket No. CV–12–6007408–S (“the Meadowbrook case”) does support the motion to dismiss.   In that case, initiated by complaint dated October 2, 2012, Design Tech, LLC seeks to foreclose on its mechanic's lien on the property.   The defendants in the Meadowbrook case include Jean Charles Morniere and Christina Morniere–Boros;  the plaintiffs in the Meadowbrook case include Design Tech, LLC. In the present case, the defendants argue that the Meadowbrook case involves the “exact same underlying merits and the exact same controversy” as this action.   Defs.' Mem. 2. Although the parties in the two cases are not precisely the same, the defendants nonetheless seek dismissal under the prior pending action doctrine.

The plaintiff objects to the motion to dismiss, arguing that the prior pending action doctrine should not apply because she was not a party to the contract between her husband and Design Tech, LLC, and, therefore, could not participate in the arbitration process.   She argues that this case is her only avenue to address her concerns regarding Design Tech, LLC's alleged breach of contract.

IV

DISCUSSION

In deciding this motion to dismiss, the court is obligated to “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 ․ [A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts ․ If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken.”  (Citation omitted;  internal quotation marks omitted.)  May v. Coffey, 291 Conn. 106, 108–09, 967 A.2d 495 (2009).

In the present case, the defendants did not introduce evidence at the hearing on the motion to dismiss, but they did support their motion with an affidavit submitted by Thomas L. Seger, who asserts that he is the sole member of Design Tech, LLC. The motion will be decided on the basis of the well pleaded facts and the record.  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).  “A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.”  (Internal quotation marks omitted.)   Henriquez v. Allegre, 68 Conn.App. 238, 242, 789 A.2d 1142 (2002).   “Where ․ the motion [to dismiss] is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.”  (Internal quotation marks omitted.)  Ferreira v. Pringle, 255 Conn. 330, 346–47, 766 A.2d 400 (2001).

“[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 ․ 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.)  Bayer v. Showmotion, Inc., 292 Conn. 381, 395–96, 973 A.2d 1229 (2009).

The prior pending action doctrine requires a determination of whether both 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).  “[T]he 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.”  (Emphasis in original.)  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.”  Bayer v. Showmotion, Inc., supra, 292 Conn. 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.

Generally, there must be “a strict identity of the parties” for the prior pending action doctrine to apply.  (Internal quotation marks omitted.)   Chreiman v. ITT Hartford Group, Superior Court, judicial district of New London, Docket No. 545908 (March 29, 1999, Purtill, J.T.R.).  “Superficial differences in the parties, [however,] 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).

In the present case, the defendants acknowledge that the parties are not exactly alike.   For example, the present case includes Thomas Leroy Secter as a defendant.   However, in her “motion to amend to correct the name of defendant,” the plaintiff acknowledges that “Thomas Leroy Secter” was erroneously named as a defendant ² and that she intended to bring suit only against Design Tech, LLC and “Tom Seger.”   The affidavit submitted by Thomas L. Seger, in connection with this motion to dismiss, makes clear that he is also known as Tom Seger and that he carried out the construction project at the property.   Christina Morniere–Boros is a party to both the present case and the Meadowbrook case.   Her husband, Jean Charles Morniere, is not a party to the present case, but he is a defendant in the Meadowbrook case.   Finally, although Meadowbrook Gardens, LLC and its member, Jeffrey H. Stevens, are parties in the Meadowbrook case, neither is a party to the present case.

Although the prior pending action doctrine does not mandate that all of the same parties be included in both cases, it does require that there be identical parties involved in both actions.   See, e.g., Modzelewski v. William Raveis Real Estate, Inc., supra, 65 Conn.App. 714 (“[w]hile the parties are not ‘identical’ in that there are two additional parties to the prior action, the identical parties to the present action are involved in the prior one”).   That requirement is satisfied as Christina Morniere–Boros and Design Tech, LLC are parties in both cases.

Furthermore, Christina Morniere–Boros is attempting to raise the same issues in both cases.   In essence, in the present case, the plaintiff is alleging that Design Tech, LLC breached its contract with Jean Charles Morniere relative to work done on the property.   In the Meadowbrook case, Design Tech, LLC seeks to foreclose on a mechanic's lien on the property, pursuant to an arbitration award that was the product of Design Tech, LLC's work on the property.   The court has reviewed the answer filed by Christina Morniere–Boros in the Meadowbrook case and notes that she has attempted to raise some of her breach of contract claims against Design Tech, LLC and Seger in that answer.³

Based on the foregoing, the court finds that the present case and the Meadowbrook case are virtually alike, “i.e., brought to adjudicate the same underlying rights of the parties, but ․ seeking different remedies ․” Bayer v. Showmotion, Inc., supra, 292 Conn. 397.   At oral argument, the defendants conceded that the plaintiff can raise, in a counterclaim in the Meadowbrook case, all of the claims she is alleging in the present case.   Accordingly, it is appropriate to dismiss this case, pursuant to the prior pending action doctrine, in view of the fact that the disputes in both cases arise from Design Tech, LLC's work on the property, the fact that Christina Morniere–Boros and Design Tech, LLC are opposing parties in both cases, and because Christina Morniere–Boros can raise her claims in a counterclaim in the Meadowbrook case.

V

CONCLUSION

For all of the forgoing reasons, the defendants' motion to dismiss is granted.   Since the motion to dismiss is granted, the plaintiff's “motion to amend to correct the name of defendant” must be denied as moot.

So ordered.

BY THE COURT,

John A. Danaher, III, J.

FOOTNOTES

FN1. The complaint includes a certification page, indicating that a copy of the complaint was mailed to “Thad Leroy Secter” and “Tom Seger.”   The complaint does not have a caption, and the body of the complaint makes allegations regarding “Tom Seger” and Design Tech, LLC. It does not appear to allege any conduct by “Thad Leroy Secter.”   The court construes the complaint, at this stage, to allege that the defendants are Thomas Leroy Secter, “Tom Seger,” and Design Tech, LLC. Unless otherwise indicated, all references to “the defendants” in this opinion are intended to refer to Thomas Leroy Secter, Tom Seger and Design Tech, LLC..  FN1. The complaint includes a certification page, indicating that a copy of the complaint was mailed to “Thad Leroy Secter” and “Tom Seger.”   The complaint does not have a caption, and the body of the complaint makes allegations regarding “Tom Seger” and Design Tech, LLC. It does not appear to allege any conduct by “Thad Leroy Secter.”   The court construes the complaint, at this stage, to allege that the defendants are Thomas Leroy Secter, “Tom Seger,” and Design Tech, LLC. Unless otherwise indicated, all references to “the defendants” in this opinion are intended to refer to Thomas Leroy Secter, Tom Seger and Design Tech, LLC.

FN2. At oral argument, the parties appeared to agree that “Thomas Leroy Secter” does not exist..  FN2. At oral argument, the parties appeared to agree that “Thomas Leroy Secter” does not exist.

FN3. See Meadowbrook Gardens, LLC v. Morniere, supra, Docket No. CV–12–6007408–S (# 105, 15)..  FN3. See Meadowbrook Gardens, LLC v. Morniere, supra, Docket No. CV–12–6007408–S (# 105, 15).

Danaher, John A., J.