Carol Davenport et al. v. J. Allen Lamb et al. (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS

FACTUAL AND PROCEDURAL BACKGROUND

In this action, the defendant Mitchell Rochefort seeks to dismiss an intervening complaint (147.00) of Control–Aire Supply Co., Inc. (CASCO) that seeks relief against Rochefort and the plaintiff Carol Davenport.¹  As to Davenport, Rochefort claims that the CASCO complaint is time barred by General Statutes § 45a–375, and as to Rochefort, it is barred by the prior pending action doctrine.

CASCO does not contest that the application of General Statutes § 45a–375 would bar the intervening complaint as to Davenport but argues that Rochefort has no standing to assert a motion to dismiss the complaint as to Davenport.   Additionally, CASCO argues that the prior pending action doctrine is inapplicable, as there is no duplication of the parties in the prior pending action.

LEGAL STANDARD OF REVIEW

“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.”  (Citation omitted.)  Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009).

“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 ․ essentially [asserts] 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);  Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007).  “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.”  (Internal quotation marks omitted.)  Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, 285 Conn. 278, 286, 939 A.2d 561 (2008).

“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.”  (Citations omitted;  internal quotation marks omitted.)  Conboy v. State, supra, 292 Conn. 651.

ANALYSIS

I. Claim against Davenport

Although Rochefort does not specifically state this, it appears that he is asserting that the application of General Statutes § 45a–375 deprives the court of subject matter jurisdiction as to the claims against Davenport.   CASCO argues that Rochefort lacks standing to assert a motion to dismiss its intervening complaint as to Davenport.   CASCO provides no authority for its position.

Whether or not Rochefort has standing, the issue of subject matter jurisdiction over the claims of CASCO against Davenport has been raised.   “[C]laims implicating subject matter jurisdiction may be raised by the parties or by the court at any time ․ [O]nce raised, either by a party or by the court itself, the question [of subject matter jurisdiction] must be answered before the court may decide the case.”  (Citations omitted;  internal quotation marks omitted.)  Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 149 (2014).

In its objection to the motion to dismiss, CASCO readily concedes that General Statutes § 45a–375 bars it from a direct claim against Davenport and has withdrawn a demand for damages against Carol Davenport in its demand for relief (167.00).   CASCO asserts that its intervening complaint “was not intended to allege a direct claim against the Davenport Estate;” however, in paragraph 8 of its intervening complaint, CASCO “demands the return of [embezzled] funds, whether from Davenport's estate or from Rochefort.”   In paragraph 11, CASCO seeks a court order that any and all recovered funds be paid over to it.   In paragraph 12, CASCO “claims an equitable lien on the stock interests of Davenport and Rochefort in CASCO, and a constructive trust to be imposed thereon.”   The complaint further seeks, inter alia, an order requiring that any recovered funds be paid to CASCO, and creation of a constructive trust on the stock of Rochefort and the Davenport Estate.

CASCO claims that it is not making a direct claim against Davenport, contending that it is not directly seeking recovery from Davenport but also contending that, if there is a recovery, CASCO wants such recovery directed to itself.   Whether or not this is a viable contention, CASCO is, in fact, directly seeking a remedy from Davenport.   Even though CASCO has withdrawn its claim for damages against Davenport, it continues to seek a constructive trust of her stock and an order precluding her transfer or alienation of any stock.   These are direct claims against Davenport.

CASCO has conceded that it is barred by General Statutes § 45a–375 from direct claims against Davenport and the intervening complaint makes direct claims against Davenport.   Regardless of which party raised the issue, the court is deprived of subject matter jurisdiction as to these claims and the motion to dismiss CASCO's claims against Davenport is granted.

II. Claim against Rochefort

Rochefort asserts that the claims of CASCO are the same as those made in a prior action, Control–Aire Supply Co., Inc. v. Mitchell Rochefort, (Control–Aire complaint), pending in this court under docket number HHB–CV–12–6017817–S and, therefore, the claims are barred by the prior pending action doctrine.   “[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.”  Kleinman v. Chapnick, 140 Conn.App. 500, 505, 59 A.3d 373 (2013).  “[T]he prior pending action doctrine is properly raised via a motion to dismiss ․ The doctrine does not, however, truly implicate the court's subject matter jurisdiction.”  (Citations omitted;  internal quotation marks omitted.)   Id., 503 n.5.

Although a motion to dismiss is the appropriate procedural vehicle to raise the prior pending action doctrine, in the present case the motion must be denied.   Because the prior pending action doctrine does not implicate subject matter jurisdiction, a motion to dismiss raising it must be brought within the time frame provided by Practice Book § 10–30.  Section 10–30 provides, in relevant part:  “Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.”   Although Rochefort's appearance was filed before the filing of the intervening complaint, the thirty-day time period for the filing of a motion to dismiss commenced upon the filing of the intervening complaint.   The intervening complaint was filed on October 8, 2013.   Rochefort did not move to dismiss the intervening complaint until November 22, 2013, well outside of the thirty-day time frame.   Therefore, the motion to dismiss on the ground of the prior pending action doctrine is untimely.

Even if the motion to dismiss had been timely filed, it cannot be said that the two actions are virtually alike.   When analyzing the application of the prior pending action doctrine, our Supreme Court has said that 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).

In the first count of the Control–Aire complaint, CASCO and a shareholder, J. Allen Lamb, assert that Rochefort breached his duties as a director and officer of CASCO pursuant to Massachusetts law.   In the second count, CASCO alleges Rochefort converted its funds to his own use.   The third count alleges deceptive and unfair practices of Rochefort pursuant to Massachusetts law.   The fourth count, by Lamb, has been withdrawn.   The fifth and sixth counts are directed to other defendants.   The present intervening complaint references the Control–Air complaint but seeks to capture any funds which might be paid from Davenport to Rochefort.   The Control–Aire complaint, however, contains specific claims of malfeasance on the part of Rochefort and others, seeking damages.

Our Supreme Court has also considered the “end or object” of the two actions in the determination of whether the prior pending action doctrine applies.   See Larobina v. McDonald, 274 Conn. 394, 409, 876 A.2d 522 (2005);  Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998).   Here, the present action seeks to divert any funds which Davenport may be required to pay to Rochefort.   This is not sought in the Control–Aire complaint, to which Davenport is not a party.   Whether the motion to dismiss was timely filed or not, the actions are not virtually alike, particularly as the causes of action are different.   Therefore, the motion to dismiss the allegation of CASCO against Rochefort in the intervening complaint is denied.

ORDER

The motion to dismiss (160.00) the intervening complaint (147.00) is granted as to allegations against Davenport and denied as to allegations against Rochefort.²  The objection to the motion to dismiss (168.00) is overruled as to Davenport and sustained as to Rochefort.

Robert E. Young, Judge

FOOTNOTES

FN1. In the motion, Rochefort “moves to strike the Complaint of Intervention,” citing Practice Book § 10–30.   As the topic of this section of the Practice Book is “Motion to Dismiss;  Grounds,” the court considers this to be a motion to dismiss, not a motion to strike, particularly as the grounds are more properly the subject of a motion to dismiss or motion for summary judgment, rather than a motion to strike..  FN1. In the motion, Rochefort “moves to strike the Complaint of Intervention,” citing Practice Book § 10–30.   As the topic of this section of the Practice Book is “Motion to Dismiss;  Grounds,” the court considers this to be a motion to dismiss, not a motion to strike, particularly as the grounds are more properly the subject of a motion to dismiss or motion for summary judgment, rather than a motion to strike.

FN2. Rochefort did not request to revise the intervening complaint into separate counts against Davenport and Rochefort.   Therefore, the order cannot be directed as to one count or another, only as to parties..  FN2. Rochefort did not request to revise the intervening complaint into separate counts against Davenport and Rochefort.   Therefore, the order cannot be directed as to one count or another, only as to parties.

Young, Robert E., J.