DocketNumber: No. CV97 0156693 S
Citation Numbers: 1998 Conn. Super. Ct. 5662, 22 Conn. L. Rptr. 117
Judges: HICKEY, J.
Filed Date: 5/6/1998
Status: Non-Precedential
Modified Date: 7/5/2016
On March 11, 1997, defendant Morris Construction (Morris) filed a cross-complaint against defendant Victory to foreclose its mechanic's lien. On March 14, 1997, Victory filed a motion to dismiss the cross complaint based on the prior pending action doctrine. As required by Practice Book § 143, now Practice Book (1998 Rev.) §
Victory argues that another action pending in this court,Victory v. Morris Construction, docket number CV96 0152254, is between the same parties, for the same cause or goals as the cross-complaint, and therefore, is presumed oppressive or vexatious and should be dismissed. In the prior action, docket number CV96 0152254, Victory brought suit against Morris alleging defective workmanship and materials, violation of the Home Improvement Act and violation of CUTPA in relation to home improvements that Morris performed on Victory's premises. Morris brought a counterclaim seeking money damages alleging breach of contract and unjust enrichment based on Victory's failure to pay for the materials and labor provided in performing this work.
In the present case, Morris argues that the two actions are different types of actions, seek different relief, and involve different issues. Morris argues that pursuant to General Statutes §
The Connecticut Supreme Court has explained the prior pending action doctrine as follows: "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. . . . The rule forbidding the second action is not, however, one of unbending rigor, nor of universal application, nor a principle of absolute law." (Citations omitted; internal quotation marks omitted.) Halpern v. Board of Education,
The court has discretion to examine the circumstances in each case and determine whether the second suit is oppressive or vexatious, or whether it may fairly be maintained. See Barberinov. Compounce Associates Ltd., Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 456970 (November 5, 1993, Pittman, J.). "The prior pending action doctrine will not be applied when to do so would deprive a creditor of the use in a fair manner of any proper remedy for the collection of his debt." (Internal quotation marks omitted.)Construction Services of Bristol, Inc., v. Sanseer MillAssociates, Superior Court, judicial district of Middlesex, Docket No. 64273,
In the present case, Morris' cross-claim seeking to foreclose its mechanic's lien is not oppressive or vexatious. A mechanic's lien provides security for a contractor's labor and materials by making a claim for payment a lien on the property. See J. C.Penney Properties, Inc. v. Peter M. Santella Co.,
For the foregoing reasons, Victory's motion to dismiss is denied.
HICKEY, J.