John Watts v. John Guedes (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 101

INTRODUCTION

This action was filed by way of writ, summons and complaint, dated August 22, 2013.   The complaint was filed in two counts.   The First Count alleges a cause of action for breach of contract and the Second Count alleges a cause of action for misrepresentation and fraud.   The complaint alleges that the parties met in 2005 and after negotiations entered into an Agreement to form Canal Street Associates, LLC. (Operating Agreement, Exhibit 1.) The operating agreement involved three separate properties at 235, 273 and 281 Canal Street in the City of Shelton.   For purposes of this action, only 273 Canal Street is at issue.

The defendant has filed this September 30, 2013 motion to dismiss the complaint for lack of subject matter alleging that the plaintiff has no standing over John Guedes in his individual capacity and that the prior pending doctrine applies to preclude this action because of the pending legal action of Alegna Corp. v. Canal Street Associates, LLC, Docket Number CV 6004370, which is pending in this court.   The plaintiff has filed an objection dated December 6, 2013.   The motion was argued on December 9, 2013.

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).  “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.)   Id., 651.

The first basis of the motion to dismiss involves a question as to whether the plaintiff is the proper party to have his complaint heard by the court.   Each of the parties have a different interpretation as to what is being sought as a cause of action and the analysis of the complaint which is the basis of the action.   The defendant contends that there is no standing because the only party would be the corporate party, that is, Canal Street Associates, LLC. The plaintiff contends that the complaint alleges acts which are related to the individual, John Guedes.   The complaint when viewed as a whole addresses not only Canal Street Associates, LLC but also asserts acts which are particular to the defendant, John Guedes.   Paragraphs 4, 5, and 6 of the complaint allege actions of the defendant John Guedes and representations that were made before the creation of Canal Street Associates, LLC. The allegation in paragraph 7 which is referred to by each party in support of their position as to standing is interpreted differently such that they contend it supports their argument.   Therefore, on the basis of the record even with the affidavit of John Guedes the complaint provides sufficient pleading to support the cause of action and thus the first argument to dismiss the complaint is not granted.

The second argument as part of the motion to dismiss is based upon the prior pending action doctrine.  “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).  “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 in a plea in abatement ․ The plea in abatement ․ has however, since been replaced by the motion to dismiss.”  (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).   Consequently, “[t]he prior pending doctrine is properly raised via a motion to dismiss ․” (Internal quotation harks omitted.)  Id.

The Connecticut Supreme Court stated that “[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.”  (Internal quotation marks omitted.)   Solomon v. Alberman, 196 Conn. 359, 383, 493 A.2d 193 (1985).   When analyzing the application of the prior pending action doctrine, the Supreme Court stated:  “[The prior pending action doctrine] 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, 396, 973 A.2d 1229 (2009).   Other Supreme Court cases have looked at the “end or object” of the two actions in the determination of whether the prior pending action doctrine applied.   See Larobina v. McDonald, 274 Conn. 394, 409, 876 A.2d 522 (2005);  Cumberland Farms, Inc. v. Groton, supra, 247 Conn. 216.

The defendants argue that the prior pending action doctrine warrants dismissal of the action, because the proceeding pending before this court has the same parties and the same property is at issue.   The plaintiff contends that this action involves different parties because the plaintiff is not an individual but a corporation in the pending action.   The plaintiff refers to the three areas of consideration in a claim of prior pending doctrine, that is, the similarity of the parties, the same causes of action and the same claimed damages.   A review of the present action when compared to the foreclosure action of Alegna v. Canal Street Associates, LLC offers very little similarity.   In particular the Alegna action is one for foreclosure which does not permit the claims for damages in the loss of business and damages for loss of rentals and repairs and demolition that are far beyond a foreclosure action (see paragraph 13 and 14 damages claim).   However, it is questionable given the above argument that the plaintiff are one and the same or the issues are at all similar.   Given the claims as they have existed the plaintiff and the defendant's arguments the prior pending doctrine does not apply to this action.   The motion to dismiss is denied.

CONCLUSION

Based upon the above the motion to dismiss is denied in all respects.

THE COURT

Brazzel–Massaro, J.

Brazzel–Massaro, Barbara, J.